Consti-10 2 2019

G.R. No.
203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or
telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is
that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court
weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx

xxxx
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and
(cc) The commercial electronic communication does not purposely include

misleading information in any part of the message in order to induce the recipients to
read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even where the offended parties happened
to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion
of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a

sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single
word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or
interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal
profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s
privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of
copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).
One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link
to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions
of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a person’s reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount ‘facial’ challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level
of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While
this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.74 With the exception of the crimes
of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand
pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek
to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.
The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test mandates adequate
1av vphi1
guidelines or limitations in the law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time;

and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for
six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section

4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.
SO ORDERED.
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers
taken by her from private respondent's clinic without the latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her
husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that
case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did
not constitute malpractice or gross misconduct, For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's
complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr.,
this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with
merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional
Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial
court. Hence, during the enforceability of this Court's order, respondent's request for
petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity
of the questioned annexes, At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself
of her husband's admission and use the same in her action for legal separation cannot be
treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not constitute a violation of the injunctive order
of the trial court. By no means does the decision in that case establish the admissibility of the
documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the marriage, save for
specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for
each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
G.R. No. 110662 August 4, 1994
TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial
Court of Quezon City and RAFAEL S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.
PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the
decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora,
Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon
City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-
Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner.
The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon
City presided over by respondent Judge Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to
"M".
Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June
1992; on the same day, the trial court admitted all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in
evidence of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present
petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1) Tape recordings are not inadmissible per se. They and any other variant thereof
can be admitted in evidence for certain purposes, depending on how they are
presented and offered and on how the trial judge utilizes them in the interest of truth
and fairness and the even handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in
admitting evidence adduced during trial. The ruling on admissibility is interlocutory;
neither does it impinge on jurisdiction. If it is erroneous, the ruling should be
questioned in the appeal from the judgment on the merits and not through the special
civil action of certiorari. The error, assuming gratuitously that it exists, cannot be
anymore than an error of law, properly correctible by appeal and not
by certiorari. Otherwise, we will have the sorry spectacle of a case being subject of a
counterproductive "ping-pong" to and from the appellate court as often as a trial court
is perceived to have made an error in any of its rulings with respect to evidentiary
matters in the course of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby

DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor previous
decision of the Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court

of Appeals has decided a question of substance not theretofore
determined by the Supreme Court as the question of admissibility in
evidence of tape recordings has not, thus far, been addressed and
decided squarely by the Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of Appeals has
likewise rendered a decision in a way not in accord with law and with applicable
decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the

same can still be [the] subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules
of Court was properly availed of by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a
trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment,
incorporating in said appeal the grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the remedy of appeal
would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of
redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence offered by
private respondent, including tape recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and obtained when private respondent
allowed his friends from the military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and for other purposes" expressly makes such tape
recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation
of the preceding sections of this Act shall not be admissible in evidence in
any judicial, quasi-judicial, legislative or administrative hearing or
investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions
of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both
parties to the telephone conversations allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for
violation of said Act. 5
We need not address the other arguments raised by the parties, involving the applicability of
American jurisprudence, having arrived at the conclusion that the subject cassette tapes are
inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET
ASIDE. The subject cassette tapes are declared inadmissible in evidence.
SO ORDERED.
G.R. No. 121087 August 26, 1999
FELIPE NAVARRO, petitioner,

vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14,
1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27,
1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing
him to ten (10) years of prision mayor, as minimum, and fourteen (14) years and eight (8) months,
and (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the
heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00.
The information against petitioner alleged —
That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena,
Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, being then a member of the Lucena Integrated National Police, with intent to kill,
did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the
Lucena police headquarters, where authorities are supposed to be engaged in the discharge
of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter
when the said victim fell, by banging his head against the concrete pavement, as a
consequence of which said Ike Lingan suffered cerebral concussion and shock which directly
caused his death.
The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and
Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one
Mario Ilagan, went to the Entertainment City following reports that it was showing the nude dancers.
After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared
on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his
camera and took a picture.2
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached
Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam,
because this is my job."4 Sioco pushed Jalbuena towards the table as he warned the latter that he
would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint
followed by his companions.6
Jalbuena and his companions went to the police station to report the matter. Three of the policeman
on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked
Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt.
Añonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen
minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him:
"Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?"9 Petitioner
Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said
"Ano, uutasin na kita?"10
At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan pumarito
kami para magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang press, press,
mag-sampu pa kayo."12 He then turned to Sgt. Añonuevo and told him to make of record the
behavior of Jalbuena and Lingan.13
This angered Lingan, who said: "O, di ilagay mo diyan"14 Petitioner Navarro retorted: "Talagang
ilalagay ko."15 The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang abusado,
alisin mo yang baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied: "Ah, ganoon?"18
As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left
eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner
Navarro gave him a fist blow on the forehead which floored him.19
Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan
and naghamon."20 He said to Sgt. Añonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex Sioco at
Dante Liquin, na si Ike Lingan ang naghamon."21 He then poked his gun at the right temple of
Jalbuena and made him sign his name on the blotter.22 Jalbuena could not affix his signature. His
right hand was trembling and he simply wrote his name in print.23
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman
took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casañada,
arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died
from his injuries.24
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between
petitioner and the deceased.25 The following is an excerpt from the tape recording:
Lingan: Pare, you are abusing yourself.
Navarro: Who is that abusing?
Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the problem.
xxx xxx xxx
Navarro: Wala sa akin yan. Ang kaso lang . . .
Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with
me. I just came here to ayusin things. Do not say bad things against me. I'm the number one
loko sa media. I'm the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag

mong sabihing loko ka!
Lingan: I'm brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil
nag-tatrabaho lang ako ng ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may
balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang
minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo.
Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap
ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot
nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha.
Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he
(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each
time hitting his head on the concrete.26
In giving credence to the evidence for the prosecution, the trial court stated:
After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the
defense, this court finds that the evidence for the prosecution is the more credible, concrete
and sufficient to create that moral certainty in the mind of the court that accused herein is
criminally responsible.
The defense's evidence which consists of outright denial could not under the circumstance
overturn the strength of the prosecution's evidence.
This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked
any motive to make false accusation, distort the truth, testify falsehood or cause accusation
of one who had neither brought him harm or injury.
Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto
confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head
injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim
of the defense that the head injuries of deceased Lingan were caused by the latter's falling
down on the concrete pavement head first.
The Court of Appeals affirmed:

We are far from being convinced by appellant's aforesaid disquisition. We have carefully
evaluated the conflicting versions of the incident as presented by both parties, and we find
the trial court's factual conclusions to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellant's aggression
does not impair the probative worth of his positive and logical account of the incident in
question. In fact, far from proving his innocence, appellant's unwarranted assault upon
Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or
disposition and his capacity to harm others. Apparently, the same motivation that led him into
assailing Jalbuena must have provoked him into also attacking Lingan who had interceded
for Jalbuena and humiliated him and further challenged to a fist fight. 1âwphi1.nêt
xxx xxx xxx
On the other hand, appellant's explanation as how Lingan was injured is too tenuous and
illogical to be accepted. It is in fact contradicted by the number, nature and location of
Lingan's injuries as shown in the post-mortem report (Exh. D). According to the defense,
Lingan fell two times when he was outbalanced in the course of boxing the appellant. And
yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and
right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly,
these injuries could not have been resulted from Lingan's accidental fall.
Hence, this appeal. Petitioner Navarro contends:
THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD
WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS
CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE;
THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT
COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON
RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he
was a biased witness, having a grudge against him. The testimony of a witness who has an interest
in the conviction of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the
opportunity observe the facial expressions, gestures, and tones of voice of a witness while testifying,
are competent to determine whether his or her testimony should be given credence.28 In the instant
case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony
of Jalbuena.
Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is
in the affirmative. The law provides:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other device
or arrangement, to secretly overhear, intercept, or record such communication or spoken
word by using a device commonly known as dictaphone or dictagraph of dectectaphone or
walkie-talkie or tape-recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized
in the next preceding sentence, to knowingly possess any tape record, wire record, disc
record, or any other such record, or copies thereof, of any communication or spoken word
secured either before or after the effective date of this Act in the manner prohibited by this
law; or to replay the same for any other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or
partial, to any other person: Provided, That the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof,
shall not be covered by this prohibition.
xxx xxx xxx
Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof, or any information therein contained
obtained or secured by any person in violation of the preceding sections of this Act shall not
be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing
or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 Since
the exchange between petitioner Navarro and Lingan was not private, its tape recording is not
prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the
testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played in
the court was the one he recorded; and (3) that the voices on the tape are those of the persons such
are claimed to belong.30 In the instant case, Jalbuena testified that he personally made the voice
recording;31 that the tape played in the court was the one he recorded;32 and that the speakers on the
tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the authentication
of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange
between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him
and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan,
with the latter getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the
medical certificate,34 dated February 5, 1990, containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamato testified:
Q Give your opinion as to what was the possible cause of this findings number one, which is oozing
of blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1.?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun
is small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing sir.
Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it
doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of Death:
Cerebral concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
FISCAL:
Which of these two more likely, to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier sir.
xxx xxx xxx
FISCAL:
Could a bumping or pushing of one's head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.35
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with
the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of
the offended party immediately preceding the act should have been appreciated in favor of petitioner
Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party,
capable of exciting, inciting or irritating anyone.36 The provocation must be sufficient and should
immediately precede the act.37 To be sufficient, it must be adequate to excite a person to commit the
wrong, which must accordingly be proportionate in gravity.38 And it must immediately precede the act
so much so that there is no interval between the provocation by the offended party and the
commission of the crime by the accused.39
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner,
constituted sufficient provocation. In People v. Macaso,40 we appreciated this mitigating
circumstance in favor of the accused, a policeman, who shot a motorist after the latter had
repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered
in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a
wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations
of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no
intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining
the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating
circumstance is consistent with the rule that criminal liability shall be incurred by any person
committing a felony although the wrongful act done be different from that which he
intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a
wrong as that committed was appreciated in favor of the accused while finding him guilty of
homicide.
However, the aggravating circumstance of commission of a crime in a place where the public
authorities are engaged in the discharge of their duties should be appreciated against petitioner
Navarro. The offense in this case was committed right in the police station where policemen were
discharging their public functions.43
The crime committed as found by the trial court and the Court of Appeals was homicide, for which
the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two
mitigating circumstances and one aggravating circumstances, the penalty should be fixed in its
minimum period.44 Applying the Indeterminate Sentence Law, petitioner Navarro should be
sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next
lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum
period.45
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in

accordance with the current jurisprudence.46
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that
petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision
mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.
SO ORDERED.
1âw phi 1.nêt
Fifteenth Congress
Second Regular Session
Begun and held in Metro Manila, on Monday, the twenty-fifth day of July, two thousand eleven.
REPUBLIC ACT NO. 10173
AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND

COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR,
CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER
PURPOSES
Be it enacted, by the Senate and House of Representatives of the Philippines in Congress

assembled:
CHAPTER I
GENERAL PROVISIONS
Section 1. Short Title. – This Act shall be known as the "Data Privacy Act of 2012″.
Section 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right
of privacy, of communication while ensuring free flow of information to promote innovation and
growth. The State recognizes the vital role of information and communications technology in nation-
building and its inherent obligation to ensure that personal information in information and
communications systems in the government and in the private sector are secured and protected.
Section 3. Definition of Terms. – Whenever used in this Act, the following terms shall have the
respective meanings hereafter set forth:
(a) Commission shall refer to the National Privacy Commission created by virtue of this Act.
(b) Consent of the data subject refers to any freely given, specific, informed indication of will,
whereby the data subject agrees to the collection and processing of personal information
about and/or relating to him or her. Consent shall be evidenced by written, electronic or
recorded means. It may also be given on behalf of the data subject by an agent specifically
authorized by the data subject to do so.
(c) Data subject refers to an individual whose personal information is processed.
(d) Direct marketing refers to communication by whatever means of any advertising or

marketing material which is directed to particular individuals.
(e) Filing system refers to any act of information relating to natural or juridical persons to the
extent that, although the information is not processed by equipment operating automatically
in response to instructions given for that purpose, the set is structured, either by reference to
individuals or by reference to criteria relating to individuals, in such a way that specific
information relating to a particular person is readily accessible.
(f) Information and Communications System refers to a system for generating, sending,
receiving, storing or otherwise processing electronic data messages or electronic documents
and includes the computer system or other similar device by or which data is recorded,
transmitted or stored and any procedure related to the recording, transmission or storage of
electronic data, electronic message, or electronic document.
(g) Personal information refers to any information whether recorded in a material form or not,
from which the identity of an individual is apparent or can be reasonably and directly
ascertained by the entity holding the information, or when put together with other information
would directly and certainly identify an individual.
(h) Personal information controller refers to a person or organization who controls the
collection, holding, processing or use of personal information, including a person or
organization who instructs another person or organization to collect, hold, process, use,
transfer or disclose personal information on his or her behalf. The term excludes:
(1) A person or organization who performs such functions as instructed by another

person or organization; and
(2) An individual who collects, holds, processes or uses personal information in

connection with the individual’s personal, family or household affairs.
(i) Personal information processor refers to any natural or juridical person qualified to act as
such under this Act to whom a personal information controller may outsource the processing
of personal data pertaining to a data subject.
(j) Processing refers to any operation or any set of operations performed upon personal
information including, but not limited to, the collection, recording, organization, storage,
updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or
destruction of data.
(k) Privileged information refers to any and all forms of data which under the Rides of Court
and other pertinent laws constitute privileged communication.
(l) Sensitive personal information refers to personal information:
(1) About an individual’s race, ethnic origin, marital status, age, color, and religious,
philosophical or political affiliations;
(2) About an individual’s health, education, genetic or sexual life of a person, or to

any proceeding for any offense committed or alleged to have been committed by
such person, the disposal of such proceedings, or the sentence of any court in such
proceedings;
(3) Issued by government agencies peculiar to an individual which includes, but not
limited to, social security numbers, previous or cm-rent health records, licenses or its
denials, suspension or revocation, and tax returns; and
(4) Specifically established by an executive order or an act of Congress to be kept

classified.
Section 4. Scope. – This Act applies to the processing of all types of personal information and to
any natural and juridical person involved in personal information processing including those personal
information controllers and processors who, although not found or established in the Philippines, use
equipment that are located in the Philippines, or those who maintain an office, branch or agency in
the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of
Section 5 are complied with.
This Act does not apply to the following:
(a) Information about any individual who is or was an officer or employee of a government
institution that relates to the position or functions of the individual, including:
(1) The fact that the individual is or was an officer or employee of the government
institution;
(2) The title, business address and office telephone number of the individual;
(3) The classification, salary range and responsibilities of the position held by the
individual; and
(4) The name of the individual on a document prepared by the individual in the
course of employment with the government;
(b) Information about an individual who is or was performing service under contract for a
government institution that relates to the services performed, including the terms of the
contract, and the name of the individual given in the course of the performance of those
services;
(c) Information relating to any discretionary benefit of a financial nature such as the granting
of a license or permit given by the government to an individual, including the name of the
individual and the exact nature of the benefit;
(d) Personal information processed for journalistic, artistic, literary or research purposes;
(e) Information necessary in order to carry out the functions of public authority which includes
the processing of personal data for the performance by the independent, central monetary
authority and law enforcement and regulatory agencies of their constitutionally and statutorily
mandated functions. Nothing in this Act shall be construed as to have amended or repealed
Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act
No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No.
9510, otherwise known as the Credit Information System Act (CISA);
(f) Information necessary for banks and other financial institutions under the jurisdiction of
the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with
Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the
Anti-Money Laundering Act and other applicable laws; and
(g) Personal information originally collected from residents of foreign jurisdictions in

accordance with the laws of those foreign jurisdictions, including any applicable data privacy
laws, which is being processed in the Philippines.
Section 5. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be
construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the
publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general
circulation protection from being compelled to reveal the source of any news report or information
appearing in said publication which was related in any confidence to such publisher, editor, or
reporter.
Section 6. Extraterritorial Application. – This Act applies to an act done or practice engaged in and
outside of the Philippines by an entity if:
(a) The act, practice or processing relates to personal information about a Philippine citizen
or a resident;
(b) The entity has a link with the Philippines, and the entity is processing personal
information in the Philippines or even if the processing is outside the Philippines as long as it
is about Philippine citizens or residents such as, but not limited to, the following:
(1) A contract is entered in the Philippines;
(2) A juridical entity unincorporated in the Philippines but has central management
and control in the country; and
(3) An entity that has a branch, agency, office or subsidiary in the Philippines and the
parent or affiliate of the Philippine entity has access to personal information; and
(c) The entity has other links in the Philippines such as, but not limited to:
(1) The entity carries on business in the Philippines; and
(2) The personal information was collected or held by an entity in the Philippines.
CHAPTER II
THE NATIONAL PRIVACY COMMISSION
Section 7. Functions of the National Privacy Commission. – To administer and implement the
provisions of this Act, and to monitor and ensure compliance of the country with international
standards set for data protection, there is hereby created an independent body to be known as the
National Privacy Commission, winch shall have the following functions:
(a) Ensure compliance of personal information controllers with the provisions of this Act;
(b) Receive complaints, institute investigations, facilitate or enable settlement of complaints

through the use of alternative dispute resolution processes, adjudicate, award indemnity on
matters affecting any personal information, prepare reports on disposition of complaints and
resolution of any investigation it initiates, and, in cases it deems appropriate, publicize any
such report: Provided, That in resolving any complaint or investigation (except where
amicable settlement is reached by the parties), the Commission shall act as a collegial body.
For this purpose, the Commission may be given access to personal information that is
subject of any complaint and to collect the information necessary to perform its functions
under this Act;
(c) Issue cease and desist orders, impose a temporary or permanent ban on the processing
of personal information, upon finding that the processing will be detrimental to national
security and public interest;
(d) Compel or petition any entity, government agency or instrumentality to abide by its orders
or take action on a matter affecting data privacy;
(e) Monitor the compliance of other government agencies or instrumentalities on their

security and technical measures and recommend the necessary action in order to meet
minimum standards for protection of personal information pursuant to this Act;
(f) Coordinate with other government agencies and the private sector on efforts to formulate
and implement plans and policies to strengthen the protection of personal information in the
country;
(g) Publish on a regular basis a guide to all laws relating to data protection;
(h) Publish a compilation of agency system of records and notices, including index and other
finding aids;
(i) Recommend to the Department of Justice (DOJ) the prosecution and imposition of
penalties specified in Sections 25 to 29 of this Act;
(j) Review, approve, reject or require modification of privacy codes voluntarily adhered to by
personal information controllers: Provided, That the privacy codes shall adhere to the
underlying data privacy principles embodied in this Act: Provided, further, That such privacy
codes may include private dispute resolution mechanisms for complaints against any
participating personal information controller. For this purpose, the Commission shall consult
with relevant regulatory agencies in the formulation and administration of privacy codes
applying the standards set out in this Act, with respect to the persons, entities, business
activities and business sectors that said regulatory bodies are authorized to principally
regulate pursuant to the law: Provided, finally. That the Commission may review such privacy
codes and require changes thereto for purposes of complying with this Act;
(k) Provide assistance on matters relating to privacy or data protection at the request of a
national or local agency, a private entity or any person;
(l) Comment on the implication on data privacy of proposed national or local statutes,
regulations or procedures, issue advisory opinions and interpret the provisions of this Act
and other data privacy laws;
(m) Propose legislation, amendments or modifications to Philippine laws on privacy or data

protection as may be necessary;
(n) Ensure proper and effective coordination with data privacy regulators in other countries
and private accountability agents, participate in international and regional initiatives for data
privacy protection;
(o) Negotiate and contract with other data privacy authorities of other countries for cross-
border application and implementation of respective privacy laws;
(p) Assist Philippine companies doing business abroad to respond to foreign privacy or data
protection laws and regulations; and
(q) Generally perform such acts as may be necessary to facilitate cross-border enforcement
of data privacy protection.
Section 8. Confidentiality. – The Commission shall ensure at all times the confidentiality of any
personal information that comes to its knowledge and possession.
Section 9. Organizational Structure of the Commission. – The Commission shall be attached to the
Department of Information and Communications Technology (DICT) and shall be headed by a
Privacy Commissioner, who shall also act as Chairman of the Commission. The Privacy
Commissioner shall be assisted by two (2) Deputy Privacy Commissioners, one to be responsible for
Data Processing Systems and one to be responsible for Policies and Planning. The Privacy
Commissioner and the two (2) Deputy Privacy Commissioners shall be appointed by the President of
the Philippines for a term of three (3) years, and may be reappointed for another term of three (3)
years. Vacancies in the Commission shall be filled in the same manner in which the original
appointment was made.
The Privacy Commissioner must be at least thirty-five (35) years of age and of good moral character,
unquestionable integrity and known probity, and a recognized expert in the field of information
technology and data privacy. The Privacy Commissioner shall enjoy the benefits, privileges and
emoluments equivalent to the rank of Secretary.
The Deputy Privacy Commissioners must be recognized experts in the field of information and
communications technology and data privacy. They shall enjoy the benefits, privileges and
emoluments equivalent to the rank of Undersecretary.
The Privacy Commissioner, the Deputy Commissioners, or any person acting on their behalf or
under their direction, shall not be civilly liable for acts done in good faith in the performance of their
duties. However, he or she shall be liable for willful or negligent acts done by him or her which are
contrary to law, morals, public policy and good customs even if he or she acted under orders or
instructions of superiors: Provided, That in case a lawsuit is filed against such official on the subject
of the performance of his or her duties, where such performance is lawful, he or she shall be
reimbursed by the Commission for reasonable costs of litigation.
Section 10. The Secretariat. – The Commission is hereby authorized to establish a Secretariat.
Majority of the members of the Secretariat must have served for at least five (5) years in any agency
of the government that is involved in the processing of personal information including, but not limited
to, the following offices: Social Security System (SSS), Government Service Insurance System
(GSIS), Land Transportation Office (LTO), Bureau of Internal Revenue (BIR), Philippine Health
Insurance Corporation (PhilHealth), Commission on Elections (COMELEC), Department of Foreign
Affairs (DFA), Department of Justice (DOJ), and Philippine Postal Corporation (Philpost).
CHAPTER III
PROCESSING OF PERSONAL INFORMATION
Section 11. General Data Privacy Principles. – The processing of personal information shall be
allowed, subject to compliance with the requirements of this Act and other laws allowing disclosure
of information to the public and adherence to the principles of transparency, legitimate purpose and
proportionality.
Personal information must, be:

(a) Collected for specified and legitimate purposes determined and declared before, or as
soon as reasonably practicable after collection, and later processed in a way compatible with
such declared, specified and legitimate purposes only;
(b) Processed fairly and lawfully;
(c) Accurate, relevant and, where necessary for purposes for which it is to be used the
processing of personal information, kept up to date; inaccurate or incomplete data must be
rectified, supplemented, destroyed or their further processing restricted;
(d) Adequate and not excessive in relation to the purposes for which they are collected and
processed;
(e) Retained only for as long as necessary for the fulfillment of the purposes for which the
data was obtained or for the establishment, exercise or defense of legal claims, or for
legitimate business purposes, or as provided by law; and
(f) Kept in a form which permits identification of data subjects for no longer than is necessary
for the purposes for which the data were collected and processed: Provided, That personal
information collected for other purposes may lie processed for historical, statistical or
scientific purposes, and in cases laid down in law may be stored for longer
periods: Provided, further, That adequate safeguards are guaranteed by said laws
authorizing their processing.
The personal information controller must ensure implementation of personal information processing
principles set out herein.
Section 12. Criteria for Lawful Processing of Personal Information. – The processing of personal
information shall be permitted only if not otherwise prohibited by law, and when at least one of the
following conditions exists:
(a) The data subject has given his or her consent;
(b) The processing of personal information is necessary and is related to the fulfillment of a
contract with the data subject or in order to take steps at the request of the data subject prior
to entering into a contract;
(c) The processing is necessary for compliance with a legal obligation to which the personal
information controller is subject;
(d) The processing is necessary to protect vitally important interests of the data subject,
including life and health;
(e) The processing is necessary in order to respond to national emergency, to comply with
the requirements of public order and safety, or to fulfill functions of public authority which
necessarily includes the processing of personal data for the fulfillment of its mandate; or
(f) The processing is necessary for the purposes of the legitimate interests pursued by the
personal information controller or by a third party or parties to whom the data is disclosed,
except where such interests are overridden by fundamental rights and freedoms of the data
subject which require protection under the Philippine Constitution.
Section 13. Sensitive Personal Information and Privileged Information. – The processing of sensitive
personal information and privileged information shall be prohibited, except in the following cases:
(a) The data subject has given his or her consent, specific to the purpose prior to the
processing, or in the case of privileged information, all parties to the exchange have given
their consent prior to processing;
(b) The processing of the same is provided for by existing laws and
regulations: Provided, That such regulatory enactments guarantee the protection of the
sensitive personal information and the privileged information: Provided, further, That the
consent of the data subjects are not required by law or regulation permitting the processing
of the sensitive personal information or the privileged information;
(c) The processing is necessary to protect the life and health of the data subject or another
person, and the data subject is not legally or physically able to express his or her consent
prior to the processing;
(d) The processing is necessary to achieve the lawful and noncommercial objectives of
public organizations and their associations: Provided, That such processing is only confined
and related to the bona fide members of these organizations or their associations: Provided,
further, That the sensitive personal information are not transferred to third parties: Provided,
finally, That consent of the data subject was obtained prior to processing;
(e) The processing is necessary for purposes of medical treatment, is carried out by a
medical practitioner or a medical treatment institution, and an adequate level of protection of
personal information is ensured; or
(f) The processing concerns such personal information as is necessary for the protection of
lawful rights and interests of natural or legal persons in court proceedings, or the
establishment, exercise or defense of legal claims, or when provided to government or public
authority.
Section 14. Subcontract of Personal Information. – A personal information controller may

subcontract the processing of personal information: Provided, That the personal information
controller shall be responsible for ensuring that proper safeguards are in place to ensure the
confidentiality of the personal information processed, prevent its use for unauthorized purposes, and
generally, comply with the requirements of this Act and other laws for processing of personal
information. The personal information processor shall comply with all the requirements of this Act
and other applicable laws.
Section 15. Extension of Privileged Communication. – Personal information controllers may invoke
the principle of privileged communication over privileged information that they lawfully control or
process. Subject to existing laws and regulations, any evidence gathered on privileged information is
inadmissible.
CHAPTER IV
RIGHTS OF THE DATA SUBJECT
Section 16. Rights of the Data Subject. – The data subject is entitled to:
(a) Be informed whether personal information pertaining to him or her shall be, are being or
have been processed;
(b) Be furnished the information indicated hereunder before the entry of his or her personal
information into the processing system of the personal information controller, or at the next
practical opportunity:
(1) Description of the personal information to be entered into the system;
(2) Purposes for which they are being or are to be processed;
(3) Scope and method of the personal information processing;
(4) The recipients or classes of recipients to whom they are or may be disclosed;
(5) Methods utilized for automated access, if the same is allowed by the data subject,
and the extent to which such access is authorized;
(6) The identity and contact details of the personal information controller or its
representative;
(7) The period for which the information will be stored; and
(8) The existence of their rights, i.e., to access, correction, as well as the right to
lodge a complaint before the Commission.
Any information supplied or declaration made to the data subject on these matters shall not
be amended without prior notification of data subject: Provided, That the notification under
subsection (b) shall not apply should the personal information be needed pursuant to
a subpoena or when the collection and processing are for obvious purposes, including when
it is necessary for the performance of or in relation to a contract or service or when
necessary or desirable in the context of an employer-employee relationship, between the
collector and the data subject, or when the information is being collected and processed as a
result of legal obligation;
(c) Reasonable access to, upon demand, the following:
(1) Contents of his or her personal information that were processed;
(2) Sources from which personal information were obtained;
(3) Names and addresses of recipients of the personal information;
(4) Manner by which such data were processed;
(5) Reasons for the disclosure of the personal information to recipients;
(6) Information on automated processes where the data will or likely to be made as
the sole basis for any decision significantly affecting or will affect the data subject;
(7) Date when his or her personal information concerning the data subject were last
accessed and modified; and
(8) The designation, or name or identity and address of the personal information
controller;
(d) Dispute the inaccuracy or error in the personal information and have the personal
information controller correct it immediately and accordingly, unless the request is vexatious
or otherwise unreasonable. If the personal information have been corrected, the personal
information controller shall ensure the accessibility of both the new and the retracted
information and the simultaneous receipt of the new and the retracted information by
recipients thereof: Provided, That the third parties who have previously received such
processed personal information shall he informed of its inaccuracy and its rectification upon
reasonable request of the data subject;
(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal
information from the personal information controller’s filing system upon discovery and
substantial proof that the personal information are incomplete, outdated, false, unlawfully
obtained, used for unauthorized purposes or are no longer necessary for the purposes for
which they were collected. In this case, the personal information controller may notify third
parties who have previously received such processed personal information; and
(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated,
false, unlawfully obtained or unauthorized use of personal information.
Section 17. Transmissibility of Rights of the Data Subject. – The lawful heirs and assigns of the data
subject may invoke the rights of the data subject for, which he or she is an heir or assignee at any
time after the death of the data subject or when the data subject is incapacitated or incapable of
exercising the rights as enumerated in the immediately preceding section.
Section 18. Right to Data Portability. – The data subject shall have the right, where personal
information is processed by electronic means and in a structured and commonly used format, to
obtain from the personal information controller a copy of data undergoing processing in an electronic
or structured format, which is commonly used and allows for further use by the data subject. The
Commission may specify the electronic format referred to above, as well as the technical standards,
modalities and procedures for their transfer.
Section 19. Non-Applicability. – The immediately preceding sections are not applicable if the
processed personal information are used only for the needs of scientific and statistical research and,
on the basis of such, no activities are carried out and no decisions are taken regarding the data
subject: Provided, That the personal information shall be held under strict confidentiality and shall be
used only for the declared purpose. Likewise, the immediately preceding sections are not applicable
to processing of personal information gathered for the purpose of investigations in relation to any
criminal, administrative or tax liabilities of a data subject.
CHAPTER V
SECURITY OF PERSONAL INFORMATION
Section 20. Security of Personal Information. – (a) The personal information controller must
implement reasonable and appropriate organizational, physical and technical measures intended for
the protection of personal information against any accidental or unlawful destruction, alteration and
disclosure, as well as against any other unlawful processing.
(b) The personal information controller shall implement reasonable and appropriate measures to
protect personal information against natural dangers such as accidental loss or destruction, and
human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration and
contamination.
(c) The determination of the appropriate level of security under this section must take into account
the nature of the personal information to be protected, the risks represented by the processing, the
size of the organization and complexity of its operations, current data privacy best practices and the
cost of security implementation. Subject to guidelines as the Commission may issue from time to
time, the measures implemented must include:
(1) Safeguards to protect its computer network against accidental, unlawful or unauthorized
usage or interference with or hindering of their functioning or availability;
(2) A security policy with respect to the processing of personal information;
(3) A process for identifying and accessing reasonably foreseeable vulnerabilities in its
computer networks, and for taking preventive, corrective and mitigating action against
security incidents that can lead to a security breach; and
(4) Regular monitoring for security breaches and a process for taking preventive, corrective
and mitigating action against security incidents that can lead to a security breach.
(d) The personal information controller must further ensure that third parties processing personal
information on its behalf shall implement the security measures required by this provision.
(e) The employees, agents or representatives of a personal information controller who are involved
in the processing of personal information shall operate and hold personal information under strict
confidentiality if the personal information are not intended for public disclosure. This obligation shall
continue even after leaving the public service, transfer to another position or upon termination of
employment or contractual relations.
(f) The personal information controller shall promptly notify the Commission and affected data
subjects when sensitive personal information or other information that may, under the
circumstances, be used to enable identity fraud are reasonably believed to have been acquired by
an unauthorized person, and the personal information controller or the Commission believes (bat
such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data
subject. The notification shall at least describe the nature of the breach, the sensitive personal
information possibly involved, and the measures taken by the entity to address the breach.
Notification may be delayed only to the extent necessary to determine the scope of the breach, to
prevent further disclosures, or to restore reasonable integrity to the information and communications
system.
(1) In evaluating if notification is unwarranted, the Commission may take into account
compliance by the personal information controller with this section and existence of good
faith in the acquisition of personal information.
(2) The Commission may exempt a personal information controller from notification where, in
its reasonable judgment, such notification would not be in the public interest or in the
interests of the affected data subjects.
(3) The Commission may authorize postponement of notification where it may hinder the
progress of a criminal investigation related to a serious breach.
CHAPTER VI
ACCOUNTABILITY FOR TRANSFER OF PERSONAL INFORMATION
Section 21. Principle of Accountability. – Each personal information controller is responsible for
personal information under its control or custody, including information that have been transferred to
a third party for processing, whether domestically or internationally, subject to cross-border
arrangement and cooperation.
(a) The personal information controller is accountable for complying with the requirements of
this Act and shall use contractual or other reasonable means to provide a comparable level
of protection while the information are being processed by a third party.
(b) The personal information controller shall designate an individual or individuals who are
accountable for the organization’s compliance with this Act. The identity of the individual(s)
so designated shall be made known to any data subject upon request.
CHAPTER VII
SECURITY OF SENSITIVE PERSONAL
INFORMATION IN GOVERNMENT
Section 22. Responsibility of Heads of Agencies. – All sensitive personal information maintained by
the government, its agencies and instrumentalities shall be secured, as far as practicable, with the
use of the most appropriate standard recognized by the information and communications technology
industry, and as recommended by the Commission. The head of each government agency or
instrumentality shall be responsible for complying with the security requirements mentioned herein
while the Commission shall monitor the compliance and may recommend the necessary action in
order to satisfy the minimum standards.
Section 23. Requirements Relating to Access by Agency Personnel to Sensitive Personal

Information. – (a) On-site and Online Access – Except as may be allowed through guidelines to be
issued by the Commission, no employee of the government shall have access to sensitive personal
information on government property or through online facilities unless the employee has received a
security clearance from the head of the source agency.
(b) Off-site Access – Unless otherwise provided in guidelines to be issued by the Commission,
sensitive personal information maintained by an agency may not be transported or accessed from a
location off government property unless a request for such transportation or access is submitted and
approved by the head of the agency in accordance with the following guidelines:
(1) Deadline for Approval or Disapproval – In the case of any request submitted to the head
of an agency, such head of the agency shall approve or disapprove the request within two
(2) business days after the date of submission of the request. In case there is no action by
the head of the agency, then such request is considered disapproved;
(2) Limitation to One thousand (1,000) Records – If a request is approved, the head of the
agency shall limit the access to not more than one thousand (1,000) records at a time; and
(3) Encryption – Any technology used to store, transport or access sensitive personal
information for purposes of off-site access approved under this subsection shall be secured
by the use of the most secure encryption standard recognized by the Commission.
The requirements of this subsection shall be implemented not later than six (6) months after the date
of the enactment of this Act.
Section 24. Applicability to Government Contractors. – In entering into any contract that may involve
accessing or requiring sensitive personal information from one thousand (1,000) or more individuals,
an agency shall require a contractor and its employees to register their personal information
processing system with the Commission in accordance with this Act and to comply with the other
provisions of this Act including the immediately preceding section, in the same manner as agencies
and government employees comply with such requirements.
CHAPTER VIII
PENALTIES
Section 25. Unauthorized Processing of Personal Information and Sensitive Personal Information.
– (a) The unauthorized processing of personal information shall be penalized by imprisonment
ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on
persons who process personal information without the consent of the data subject, or without being
authorized under this Act or any existing law.
(b) The unauthorized processing of personal sensitive information shall be penalized by

imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred
thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be
imposed on persons who process personal information without the consent of the data subject, or
without being authorized under this Act or any existing law.
Section 26. Accessing Personal Information and Sensitive Personal Information Due to
Negligence. – (a) Accessing personal information due to negligence shall be penalized by
imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred
thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be
imposed on persons who, due to negligence, provided access to personal information without being
authorized under this Act or any existing law.
(b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment
ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on
persons who, due to negligence, provided access to personal information without being authorized
under this Act or any existing law.
Section 27. Improper Disposal of Personal Information and Sensitive Personal Information. – (a)
The improper disposal of personal information shall be penalized by imprisonment ranging from six
(6) months to two (2) years and a fine of not less than One hundred thousand pesos
(Php100,000.00) but not more than Five hundred thousand pesos (Php500,000.00) shall be imposed
on persons who knowingly or negligently dispose, discard or abandon the personal information of an
individual in an area accessible to the public or has otherwise placed the personal information of an
individual in its container for trash collection.
b) The improper disposal of sensitive personal information shall be penalized by imprisonment
ranging from one (1) year to three (3) years and a fine of not less than One hundred thousand pesos
(Php100,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on
persons who knowingly or negligently dispose, discard or abandon the personal information of an
individual in an area accessible to the public or has otherwise placed the personal information of an
individual in its container for trash collection.
Section 28. Processing of Personal Information and Sensitive Personal Information for
Unauthorized Purposes. – The processing of personal information for unauthorized purposes shall
be penalized by imprisonment ranging from one (1) year and six (6) months to five (5) years and a
fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million
pesos (Php1,000,000.00) shall be imposed on persons processing personal information for purposes
not authorized by the data subject, or otherwise authorized under this Act or under existing laws.
The processing of sensitive personal information for unauthorized purposes shall be penalized by
imprisonment ranging from two (2) years to seven (7) years and a fine of not less than Five hundred
thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be
imposed on persons processing sensitive personal information for purposes not authorized by the
data subject, or otherwise authorized under this Act or under existing laws.
Section 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment ranging from
one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on
persons who knowingly and unlawfully, or violating data confidentiality and security data systems,
breaks in any way into any system where personal and sensitive personal information is stored.
Section 30. Concealment of Security Breaches Involving Sensitive Personal Information. – The
penalty of imprisonment of one (1) year and six (6) months to five (5) years and a fine of not less
than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos
(Php1,000,000.00) shall be imposed on persons who, after having knowledge of a security breach
and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission
conceals the fact of such security breach.
Section 31. Malicious Disclosure. – Any personal information controller or personal information
processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses
unwarranted or false information relative to any personal information or personal sensitive
information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and
six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than One million pesos (Php1,000,000.00).
Section 32. Unauthorized Disclosure. – (a) Any personal information controller or personal
information processor or any of its officials, employees or agents, who discloses to a third party
personal information not covered by the immediately preceding section without the consent of the
data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine
of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos
(Php1,000,000.00).
(b) Any personal information controller or personal information processor or any of its officials,
employees or agents, who discloses to a third party sensitive personal information not covered by
the immediately preceding section without the consent of the data subject, shall be subject to
imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred
thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).
Section 33. Combination or Series of Acts. – Any combination or series of acts as defined in
Sections 25 to 32 shall make the person subject to imprisonment ranging from three (3) years to six
(6) years and a fine of not less than One million pesos (Php1,000,000.00) but not more than Five
million pesos (Php5,000,000.00).
Section 34. Extent of Liability. – If the offender is a corporation, partnership or any juridical person,
the penalty shall be imposed upon the responsible officers, as the case may be, who participated in,
or by their gross negligence, allowed the commission of the crime. If the offender is a juridical
person, the court may suspend or revoke any of its rights under this Act. If the offender is an alien,
he or she shall, in addition to the penalties herein prescribed, be deported without further
proceedings after serving the penalties prescribed. If the offender is a public official or employee and
lie or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in
addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification
from office, as the case may be.
Section 35. Large-Scale. – The maximum penalty in the scale of penalties respectively provided for
the preceding offenses shall be imposed when the personal information of at least one hundred
(100) persons is harmed, affected or involved as the result of the above mentioned actions.
Section 36. Offense Committed by Public Officer. – When the offender or the person responsible for
the offense is a public officer as defined in the Administrative Code of the Philippines in the exercise
of his or her duties, an accessory penalty consisting in the disqualification to occupy public office for
a term double the term of criminal penalty imposed shall he applied.
Section 37. Restitution. – Restitution for any aggrieved party shall be governed by the provisions of
the New Civil Code.
CHAPTER IX
MISCELLANEOUS PROVISIONS
Section 38. Interpretation. – Any doubt in the interpretation of any provision of this Act shall be
liberally interpreted in a manner mindful of the rights and interests of the individual about whom
personal information is processed.
Section 39. Implementing Rules and Regulations (IRR). – Within ninety (90) days from the effectivity
of this Act, the Commission shall promulgate the rules and regulations to effectively implement the
provisions of this Act.
Section 40. Reports and Information. – The Commission shall annually report to the President and
Congress on its activities in carrying out the provisions of this Act. The Commission shall undertake
whatever efforts it may determine to be necessary or appropriate to inform and educate the public of
data privacy, data protection and fair information rights and responsibilities.
Section 41. Appropriations Clause. – The Commission shall be provided with an initial appropriation
of Twenty million pesos (Php20,000,000.00) to be drawn from the national government.
Appropriations for the succeeding years shall be included in the General Appropriations Act. It shall
likewise receive Ten million pesos (Php10,000,000.00) per year for five (5) years upon
implementation of this Act drawn from the national government.
Section 42. Transitory Provision. – Existing industries, businesses and offices affected by the
implementation of this Act shall be given one (1) year transitory period from the effectivity of the IRR
or such other period as may be determined by the Commission, to comply with the requirements of
this Act.
In case that the DICT has not yet been created by the time the law takes full force and effect, the
National Privacy Commission shall be attached to the Office of the President.
Section 43. Separability Clause. – If any provision or part hereof is held invalid or unconstitutional,
the remainder of the law or the provision not otherwise affected shall remain valid and subsisting.
Section 44. Repealing Clause. – The provision of Section 7 of Republic Act No. 9372, otherwise
known as the "Human Security Act of 2007″, is hereby amended. Except as otherwise expressly
provided in this Act, all other laws, decrees, executive orders, proclamations and administrative
regulations or parts thereof inconsistent herewith are hereby repealed or modified accordingly.
Section 45. Effectivity Clause. – This Act shall take effect fifteen (15) days after its publication in at
least two (2) national newspapers of general circulation.
Approved,
(Sgd.) JUAN PONCE ENRILE (Sgd.) FELICIANO BELMONTE JR.

President of the Senate Speaker of the House of Representatives
This Act which is a consolidation of Senate Bill No. 2965 and House Bill No. 4115 was finally passed
by the Senate and the House of Representatives on June 6, 2012.
(Sgd.) EMMA LIRIO-REYES (Sgd.) MARILYN B. BARUA-YAP

Secretary of Senate Secretary General
House of Representatives
Approved: AUG 15 2012
(Sgd.) BENIGNO S. AQUINO III

President of the Philippines
JUDGMENT OF THE COURT (Grand Chamber)
13 May 2014 (*)
(Personal data — Protection of individuals with regard to the processing of such data — Directive 95/46/EC —
Articles 2, 4, 12 and 14 — Material and territorial scope — Internet search engines — Processing of data
contained on websites — Searching for, indexing and storage of such data — Responsibility of the operator of
the search engine — Establishment on the territory of a Member State — Extent of that operator’s obligations
and of the data subject’s rights — Charter of Fundamental Rights of the European Union — Articles 7 and 8)
In Case C-131/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional (Spain), made by
decision of 27 February 2012, received at the Court on 9 March 2012, in the proceedings
Google Spain SL,
Google Inc.
Agencia Española de Protección de Datos (AEPD),
Mario Costeja González,
THE COURT (Grand Chamber),
composed of V. Skouris, President, K. Lenaerts, Vice-President, M. Ilešič (Rapporteur), L. Bay Larsen, T. von
Danwitz, M. Safjan, Presidents of Chambers, J. Malenovský, E. Levits, A. Ó Caoimh, A. Arabadjiev, M. Berger,
A. Prechal and E. Jarašiūnas Judges,
Advocate General: N. Jääskinen,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 26 February 2013,
after considering the observations submitted on behalf of:
– Google Spain SL and Google Inc., by F. González Díaz, J. Baño Fos and B. Holles, abogados,
– Mr Costeja González, by J. Muñoz Rodríguez, abogado,
– the Spanish Government, by A. Rubio González, acting as Agent,
– the Greek Government, by E.-M. Mamouna and K. Boskovits, acting as Agents,
– the Italian Government, by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,
– the Austrian Government, by G. Kunnert and C. Pesendorfer, acting as Agents,
– the Polish Government, by B. Majczyna and M. Szpunar, acting as Agents,
– the European Commission, by I. Martínez del Peral and B. Martenczuk, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 25 June 2013,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 2(b) and (d), Article 4(1)(a) and (c),
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing
of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) and of Article 8 of the Charter
of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between, on the one hand, Google Spain SL (‘Google Spain’) and
Google Inc. and, on the other, the Agencia Española de Protección de Datos (Spanish Data Protection Agency;
‘the AEPD’) and Mr Costeja González concerning a decision by the AEPD upholding the complaint lodged by
Mr Costeja González against those two companies and ordering Google Inc. to adopt the measures necessary
to withdraw personal data relating to Mr Costeja González from its index and to prevent access to the data in
the future.
Legal context
European Union law
3 Directive 95/46 which, according to Article 1, has the object of protecting the fundamental rights and freedoms
of natural persons, and in particular their right to privacy with respect to the processing of personal data, and of
removing obstacles to the free flow of such data, states in recitals 2, 10, 18 to 20 and 25 in its preamble:
‘(2) … data-processing systems are designed to serve man; … they must, whatever the nationality or
residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy,
and contribute to … the well-being of individuals;
...
(10) … the object of the national laws on the processing of personal data is to protect fundamental rights and
freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms [, signed in Rome on 4 November 1950,]
and in the general principles of Community law; … for that reason, the approximation of those laws must
not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high
level of protection in the Community;
...
(18) … in order to ensure that individuals are not deprived of the protection to which they are entitled under
this Directive, any processing of personal data in the Community must be carried out in accordance with
the law of one of the Member States; … in this connection, processing carried out under the responsibility
of a controller who is established in a Member State should be governed by the law of that State;
(19) … establishment on the territory of a Member State implies the effective and real exercise of activity
through stable arrangements; … the legal form of such an establishment, whether simply [a] branch or a
subsidiary with a legal personality, is not the determining factor in this respect; … when a single controller
is established on the territory of several Member States, particularly by means of subsidiaries, he must
ensure, in order to avoid any circumvention of national rules, that each of the establishments fulfils the
obligations imposed by the national law applicable to its activities;
(20) … the fact that the processing of data is carried out by a person established in a third country must not
stand in the way of the protection of individuals provided for in this Directive; … in these cases, the
processing should be governed by the law of the Member State in which the means used are located,
and there should be guarantees to ensure that the rights and obligations provided for in this Directive are
respected in practice;
...
(25) … the principles of protection must be reflected, on the one hand, in the obligations imposed on persons
… responsible for processing, in particular regarding data quality, technical security, notification to the
supervisory authority, and the circumstances under which processing can be carried out, and, on the
other hand, in the right conferred on individuals, the data on whom are the subject of processing, to be
informed that processing is taking place, to consult the data, to request corrections and even to object to
processing in certain circumstances’.
4 Article 2 of Directive 95/46 states that ‘[f]or the purposes of this Directive:
(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data
subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by
reference to an identification number or to one or more factors specific to his physical, physiological,
mental, economic, cultural or social identity;
(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is
performed upon personal data, whether or not by automatic means, such as collection, recording,
organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
...
(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone
or jointly with others determines the purposes and means of the processing of personal data; where the
purposes and means of processing are determined by national or Community laws or regulations, the
controller or the specific criteria for his nomination may be designated by national or Community law;
...’
5 Article 3 of Directive 95/46, entitled ‘Scope’, states in paragraph 1:
‘This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the
processing otherwise than by automatic means of personal data which form part of a filing system or are
intended to form part of a filing system.’
6 Article 4 of Directive 95/46, entitled ‘National law applicable’, provides:
‘1. Each Member State shall apply the national provisions it adopts pursuant to this Directive to the
processing of personal data where:
(a) the processing is carried out in the context of the activities of an establishment of the controller on the
territory of the Member State; when the same controller is established on the territory of several Member
States, he must take the necessary measures to ensure that each of these establishments complies with
the obligations laid down by the national law applicable;
(b) the controller is not established on the Member State’s territory, but in a place where its national law
applies by virtue of international public law;
(c) the controller is not established on Community territory and, for purposes of processing personal data
makes use of equipment, automated or otherwise, situated on the territory of the said Member State,
unless such equipment is used only for purposes of transit through the territory of the Community.
2. In the circumstances referred to in paragraph 1(c), the controller must designate a representative
established in the territory of that Member State, without prejudice to legal actions which could be initiated
against the controller himself.’
7 In Section I (entitled ‘Principles relating to data quality’) of Chapter II of Directive 95/46, Article 6 is worded as
follows:
‘1. Member States shall provide that personal data must be:
(a) processed fairly and lawfully;
(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible
with those purposes. Further processing of data for historical, statistical or scientific purposes shall not
be considered as incompatible provided that Member States provide appropriate safeguards;
(c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further
processed;
(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data
which are inaccurate or incomplete, having regard to the purposes for which they were collected or for
which they are further processed, are erased or rectified;
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes
for which the data were collected or for which they are further processed. Member States shall lay down
appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific
use.
2. It shall be for the controller to ensure that paragraph 1 is complied with.’
8 In Section II (entitled ‘Criteria for making data processing legitimate’) of Chapter II of Directive 95/46, Article 7
provides:
‘Member States shall provide that personal data may be processed only if:
...
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the
third party or parties to whom the data are disclosed, except where such interests are overridden by the
interests [or] fundamental rights and freedoms of the data subject which require protection under
Article 1(1).’
9 Article 9 of Directive 95/46, entitled ‘Processing of personal data and freedom of expression’, provides:
‘Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and
Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of
artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing
freedom of expression.’
10 Article 12 of Directive 95/46, entitled ‘Rights of access’, provides:
‘Member States shall guarantee every data subject the right to obtain from the controller:
...
(b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with
the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;
...’
11 Article 14 of Directive 95/46, entitled ‘The data subject’s right to object’, provides:
‘Member States shall grant the data subject the right:
(a) at least in the cases referred to in Article 7(e) and (f), to object at any time on compelling legitimate
grounds relating to his particular situation to the processing of data relating to him, save where otherwise
provided by national legislation. Where there is a justified objection, the processing instigated by the
controller may no longer involve those data;
...’
12 Article 28 of Directive 95/46, entitled ‘Supervisory authority’, is worded as follows:
‘1. Each Member State shall provide that one or more public authorities are responsible for monitoring the
application within its territory of the provisions adopted by the Member States pursuant to this Directive.
...
3. Each authority shall in particular be endowed with:
– investigative powers, such as powers of access to data forming the subject-matter of processing
operations and powers to collect all the information necessary for the performance of its supervisory
duties,
– effective powers of intervention, such as, for example, that … of ordering the blocking, erasure or
destruction of data, of imposing a temporary or definitive ban on processing …
– ...
Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts.
4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that
person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The
person concerned shall be informed of the outcome of the claim.
...
6. Each supervisory authority is competent, whatever the national law applicable to the processing in
question, to exercise, on the territory of its own Member State, the powers conferred on it in accordance with
paragraph 3. Each authority may be requested to exercise its powers by an authority of another Member State.
The supervisory authorities shall cooperate with one another to the extent necessary for the performance of
their duties, in particular by exchanging all useful information.
...’
Spanish law
13 Directive 95/46 was transposed into Spanish Law by Organic Law No 15/1999 of 13 December 1999 on the
protection of personal data (BOE No 298 of 14 December 1999, p. 43088).
The dispute in the main proceedings and the questions referred for a preliminary ruling
14 On 5 March 2010, Mr Costeja González, a Spanish national resident in Spain, lodged with the AEPD a complaint
against La Vanguardia Ediciones SL, which publishes a daily newspaper with a large circulation, in particular in
Catalonia (Spain) (‘La Vanguardia’), and against Google Spain and Google Inc. The complaint was based on
the fact that, when an internet user entered Mr Costeja González’s name in the search engine of the Google
group (‘Google Search’), he would obtain links to two pages of La Vanguardia’s newspaper, of 19 January and
9 March 1998 respectively, on which an announcement mentioning Mr Costeja González’s name appeared for
a real-estate auction connected with attachment proceedings for the recovery of social security debts.
15 By that complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter
those pages so that the personal data relating to him no longer appeared or to use certain tools made available
by search engines in order to protect the data. Second, he requested that Google Spain or Google Inc. be
required to remove or conceal the personal data relating to him so that they ceased to be included in the search
results and no longer appeared in the links to La Vanguardia. Mr Costeja González stated in this context that
the attachment proceedings concerning him had been fully resolved for a number of years and that reference
to them was now entirely irrelevant.
16 By decision of 30 July 2010, the AEPD rejected the complaint in so far as it related to La Vanguardia, taking the
view that the publication by it of the information in question was legally justified as it took place upon order of
the Ministry of Labour and Social Affairs and was intended to give maximum publicity to the auction in order to
secure as many bidders as possible.
17 On the other hand, the complaint was upheld in so far as it was directed against Google Spain and Google Inc.
The AEPD considered in this regard that operators of search engines are subject to data protection legislation
given that they carry out data processing for which they are responsible and act as intermediaries in the
information society. The AEPD took the view that it has the power to require the withdrawal of data and the
prohibition of access to certain data by the operators of search engines when it considers that the locating and
dissemination of the data are liable to compromise the fundamental right to data protection and the dignity of
persons in the broad sense, and this would also encompass the mere wish of the person concerned that such
data not be known to third parties. The AEPD considered that that obligation may be owed directly by operators
of search engines, without it being necessary to erase the data or information from the website where they
appear, including when retention of the information on that site is justified by a statutory provision.
18 Google Spain and Google Inc. brought separate actions against that decision before the Audiencia Nacional
(National High Court). The Audiencia Nacional joined the actions.
19 That court states in the order for reference that the actions raise the question of what obligations are owed by
operators of search engines to protect personal data of persons concerned who do not wish that certain
information, which is published on third parties’ websites and contains personal data relating to them that enable
that information to be linked to them, be located, indexed and made available to internet users indefinitely. The
answer to that question depends on the way in which Directive 95/46 must be interpreted in the context of these
technologies, which appeared after the directive’s publication.
20 In those circumstances, the Audiencia Nacional decided to stay the proceedings and to refer the following
questions to the Court for a preliminary ruling:
‘1. With regard to the territorial application of Directive [95/46] and, consequently, of the Spanish data
protection legislation:
(a) must it be considered that an “establishment”, within the meaning of Article 4(1)(a) of Directive
95/46, exists when any one or more of the following circumstances arise:
– when the undertaking providing the search engine sets up in a Member State an office or
subsidiary for the purpose of promoting and selling advertising space on the search
engine, which orientates its activity towards the inhabitants of that State,
or
– when the parent company designates a subsidiary located in that Member State as its
representative and controller for two specific filing systems which relate to the data of
customers who have contracted for advertising with that undertaking,
or
– when the office or subsidiary established in a Member State forwards to the parent
company, located outside the European Union, requests and requirements addressed to
it both by data subjects and by the authorities with responsibility for ensuring observation
of the right to data protection, even where such collaboration is engaged in voluntarily?
(b) Must Article 4(1)(c) of Directive 95/46 be interpreted as meaning that there is “use of equipment
… situated on the territory of the said Member State”:
– when a search engine uses crawlers or robots to locate and index information contained in
web pages located on servers in that Member State,
or
– when it uses a domain name pertaining to a Member State and arranges for searches and
the results thereof to be based on the language of that Member State?
(c) Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46, the
temporary storage of the information indexed by internet search engines? If the answer to that
question is affirmative, can it be considered that that connecting factor is present when the
undertaking refuses to disclose the place where it stores those indexes, invoking reasons of
competition?
(d) Regardless of the answers to the foregoing questions and particularly in the event that the Court
… considers that the connecting factors referred to in Article 4 of [Directive 95/46] are not present:
must Directive 95/46 … be applied, in the light of Article 8 of the [Charter], in the Member State
where the centre of gravity of the conflict is located and more effective protection of the rights of
… Union citizens is possible?
2. As regards the activity of search engines as providers of content in relation to Directive 95/46 …:
(a) in relation to the activity of [Google Search], as a provider of content, consisting in locating
information published or included on the net by third parties, indexing it automatically, storing it
temporarily and finally making it available to internet users according to a particular order of
preference, when that information contains personal data of third parties: must an activity like the
one described be interpreted as falling within the concept of “processing of … data” used in
Article 2(b) of Directive 95/46?
(b) If the answer to the foregoing question is affirmative, and once again in relation to an activity like
the one described:
must Article 2(d) of Directive 95/46 be interpreted as meaning that the undertaking managing
[Google Search] is to be regarded as the “controller” of the personal data contained in the web
pages that it indexes?
(c) In the event that the answer to the foregoing question is affirmative:
may the [AEPD], protecting the rights embodied in [Article] 12(b) and [subparagraph (a) of the
first paragraph of Article 14] of Directive 95/46, directly impose on [Google Search] a requirement
that it withdraw from its indexes an item of information published by third parties, without
addressing itself in advance or simultaneously to the owner of the web page on which that
information is located?
(d) In the event that the answer to the foregoing question is affirmative:
would the obligation of search engines to protect those rights be excluded when the information
that contains the personal data has been lawfully published by third parties and is kept on the
web page from which it originates?
3. Regarding the scope of the right of erasure and/or the right to object, in relation to the “derecho al olvido”
(the “right to be forgotten”), the following question is asked:
must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and
the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46,
extend to enabling the data subject to address himself to search engines in order to prevent indexing of
the information relating to him personally, published on third parties’ web pages, invoking his wish that
such information should not be known to internet users when he considers that it might be prejudicial to
him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully
published by third parties?’
Consideration of the questions referred
Question 2(a) and (b), concerning the material scope of Directive 95/46
21 By Question 2(a) and (b), which it is appropriate to examine first, the referring court asks, in essence, whether
Article 2(b) of Directive 95/46 is to be interpreted as meaning that the activity of a search engine as a provider
of content which consists in finding information published or placed on the internet by third parties, indexing it
automatically, storing it temporarily and, finally, making it available to internet users according to a particular
order of preference must be classified as ‘processing of personal data’ within the meaning of that provision when
that information contains personal data. If the answer is in the affirmative, the referring court seeks to ascertain
furthermore whether Article 2(d) of Directive 95/46 is to be interpreted as meaning that the operator of a search
engine must be regarded as the ‘controller’ in respect of that processing of the personal data, within the meaning
of that provision.
22 According to Google Spain and Google Inc., the activity of search engines cannot be regarded as processing of
the data which appear on third parties’ web pages displayed in the list of search results, given that search
engines process all the information available on the internet without effecting a selection between personal data
and other information. Furthermore, even if that activity must be classified as ‘data processing’, the operator of
a search engine cannot be regarded as a ‘controller’ in respect of that processing since it has no knowledge of
those data and does not exercise control over the data.
23 On the other hand, Mr Costeja González, the Spanish, Italian, Austrian and Polish Governments and the
European Commission consider that that activity quite clearly involves ‘data processing’ within the meaning of
Directive 95/46, which is distinct from the data processing by the publishers of websites and pursues different
objectives from such processing. The operator of a search engine is the ‘controller’ in respect of the data
processing carried out by it since it is the operator that determines the purposes and means of that processing.
24 In the Greek Government’s submission, the activity in question constitutes such ‘processing’, but inasmuch as
search engines serve merely as intermediaries, the undertakings which operate them cannot be regarded as
‘controllers’, except where they store data in an ‘intermediate memory’ or ‘cache memory’ for a period which
exceeds that which is technically necessary.
25 Article 2(b) of Directive 95/46 defines ‘processing of personal data’ as ‘any operation or set of operations which
is performed upon personal data, whether or not by automatic means, such as collection, recording,
organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’.
26 As regards in particular the internet, the Court has already had occasion to state that the operation of loading
personal data on an internet page must be considered to be such ‘processing’ within the meaning of Article 2(b)
of Directive 95/46 (see Case C-101/01 Lindqvist EU:C:2003:596, paragraph 25).
27 So far as concerns the activity at issue in the main proceedings, it is not contested that the data found, indexed
and stored by search engines and made available to their users include information relating to identified or
identifiable natural persons and thus ‘personal data’ within the meaning of Article 2(a) of that directive.
28 Therefore, it must be found that, in exploring the internet automatically, constantly and systematically in search
of the information which is published there, the operator of a search engine ‘collects’ such data which it
subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on
its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search
results. As those operations are referred to expressly and unconditionally in Article 2(b) of Directive 95/46, they
must be classified as ‘processing’ within the meaning of that provision, regardless of the fact that the operator
of the search engine also carries out the same operations in respect of other types of information and does not
distinguish between the latter and the personal data.
29 Nor is the foregoing finding affected by the fact that those data have already been published on the internet and
are not altered by the search engine.
30 The Court has already held that the operations referred to in Article 2(b) of Directive 95/46 must also be classified
as such processing where they exclusively concern material that has already been published in unaltered form
in the media. It has indeed observed in that regard that a general derogation from the application of Directive
95/46 in such a case would largely deprive the directive of its effect (see, to this effect, Case
C-73/07 Satakunnan Markkinapörssi and Satamedia EU:C:2008:727, paragraphs 48 and 49).
31 Furthermore, it follows from the definition contained in Article 2(b) of Directive 95/46 that, whilst the alteration of
personal data indeed constitutes processing within the meaning of the directive, the other operations which are
mentioned there do not, on the other hand, in any way require that the personal data be altered.
32 As to the question whether the operator of a search engine must be regarded as the ‘controller’ in respect of the
processing of personal data that is carried out by that engine in the context of an activity such as that at issue
in the main proceedings, it should be recalled that Article 2(d) of Directive 95/46 defines ‘controller’ as ‘the
natural or legal person, public authority, agency or any other body which alone or jointly with others determines
the purposes and means of the processing of personal data’.
33 It is the search engine operator which determines the purposes and means of that activity and thus of the
processing of personal data that it itself carries out within the framework of that activity and which must,
consequently, be regarded as the ‘controller’ in respect of that processing pursuant to Article 2(d).
34 Furthermore, it would be contrary not only to the clear wording of that provision but also to its objective — which
is to ensure, through a broad definition of the concept of ‘controller’, effective and complete protection of data
subjects — to exclude the operator of a search engine from that definition on the ground that it does not exercise
control over the personal data published on the web pages of third parties.
35 In this connection, it should be pointed out that the processing of personal data carried out in the context of the
activity of a search engine can be distinguished from and is additional to that carried out by publishers of
websites, consisting in loading those data on an internet page.
36 Moreover, it is undisputed that that activity of search engines plays a decisive role in the overall dissemination
of those data in that it renders the latter accessible to any internet user making a search on the basis of the data
subject’s name, including to internet users who otherwise would not have found the web page on which those
data are published.
37 Also, the organisation and aggregation of information published on the internet that are effected by search
engines with the aim of facilitating their users’ access to that information may, when users carry out their search
on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of
the information relating to that individual that can be found on the internet enabling them to establish a more or
less detailed profile of the data subject.
38 Inasmuch as the activity of a search engine is therefore liable to affect significantly, and additionally compared
with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data,
the operator of the search engine as the person determining the purposes and means of that activity must
ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the
requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and
that effective and complete protection of data subjects, in particular of their right to privacy, may actually be
achieved.
39 Finally, the fact that publishers of websites have the option of indicating to operators of search engines, by means
in particular of exclusion protocols such as ‘robot.txt’ or codes such as ‘noindex’ or ‘noarchive’, that they wish
specific information published on their site to be wholly or partially excluded from the search engines’ automatic
indexes does not mean that, if publishers of websites do not so indicate, the operator of a search engine is
released from its responsibility for the processing of personal data that it carries out in the context of the engine’s
activity.
40 That fact does not alter the position that the purposes and means of that processing are determined by the
operator of the search engine. Furthermore, even if that option for publishers of websites were to mean that they
determine the means of that processing jointly with that operator, this finding would not remove any of the latter’s
responsibility as Article 2(d) of Directive 95/46 expressly provides that that determination may be made ‘alone
or jointly with others’.
41 It follows from all the foregoing considerations that the answer to Question 2(a) and (b) is that Article 2(b) and
(d) of Directive 95/46 are to be interpreted as meaning that, first, the activity of a search engine consisting in
finding information published or placed on the internet by third parties, indexing it automatically, storing it
temporarily and, finally, making it available to internet users according to a particular order of preference must
be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains
personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of
that processing, within the meaning of Article 2(d).
Question 1(a) to (d), concerning the territorial scope of Directive 95/46
42 By Question 1(a) to (d), the referring court seeks to establish whether it is possible to apply the national legislation
transposing Directive 95/46 in circumstances such as those at issue in the main proceedings.
43 In this respect, the referring court has established the following facts:
– Google Search is offered worldwide through the website ‘www.google.com’. In numerous States, a local
version adapted to the national language exists. The version of Google Search in Spanish is offered
through the website ‘www.google.es’, which has been registered since 16 September 2003. Google
Search is one of the most used search engines in Spain.
– Google Search is operated by Google Inc., which is the parent company of the Google Group and has its
seat in the United States.
– Google Search indexes websites throughout the world, including websites located in Spain. The
information indexed by its ‘web crawlers’ or robots, that is to say, computer programmes used to locate
and sweep up the content of web pages methodically and automatically, is stored temporarily on servers
whose State of location is unknown, that being kept secret for reasons of competition.
– Google Search does not merely give access to content hosted on the indexed websites, but takes
advantage of that activity and includes, in return for payment, advertising associated with the internet
users’ search terms, for undertakings which wish to use that tool in order to offer their goods or services
to the internet users.
– The Google group has recourse to its subsidiary Google Spain for promoting the sale of advertising space
generated on the website ‘www.google.com’. Google Spain, which was established on 3 September
2003 and possesses separate legal personality, has its seat in Madrid (Spain). Its activities are targeted
essentially at undertakings based in Spain, acting as a commercial agent for the Google group in that
Member State. Its objects are to promote, facilitate and effect the sale of on-line advertising products and
services to third parties and the marketing of that advertising.
– Google Inc. designated Google Spain as the controller, in Spain, in respect of two filing systems registered
by Google Inc. with the AEPD; those filing systems were intended to contain the personal data of the
customers who had concluded contracts for advertising services with Google Inc.
44 Specifically, the main issues raised by the referring court concern the notion of ‘establishment’, within the
meaning of Article 4(1)(a) of Directive 95/46, and of ‘use of equipment situated on the territory of the said
Member State’, within the meaning of Article 4(1)(c).
Question 1(a)
45 By Question 1(a), the referring court asks, in essence, whether Article 4(1)(a) of Directive 95/46 is to be
interpreted as meaning that processing of personal data is carried out in the context of the activities of an
establishment of the controller on the territory of a Member State, within the meaning of that provision, when
one or more of the following three conditions are met:
– the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to
promote and sell advertising space offered by that engine and which orientates its activity towards the
inhabitants of that Member State, or
– the parent company designates a subsidiary located in that Member State as its representative and
controller for two specific filing systems which relate to the data of customers who have contracted for
advertising with that undertaking, or
– the branch or subsidiary established in a Member State forwards to the parent company, located outside
the European Union, requests and requirements addressed to it both by data subjects and by the
authorities with responsibility for ensuring observation of the right to protection of personal data, even
where such collaboration is engaged in voluntarily.
46 So far as concerns the first of those three conditions, the referring court states that Google Search is operated
and managed by Google Inc. and that it has not been established that Google Spain carries out in Spain an
activity directly linked to the indexing or storage of information or data contained on third parties’ websites.
Nevertheless, according to the referring court, the promotion and sale of advertising space, which Google Spain
attends to in respect of Spain, constitutes the bulk of the Google group’s commercial activity and may be
regarded as closely linked to Google Search.
47 Mr Costeja González, the Spanish, Italian, Austrian and Polish Governments and the Commission submit that,
in the light of the inextricable link between the activity of the search engine operated by Google Inc. and the
activity of Google Spain, the latter must be regarded as an establishment of the former and the processing of
personal data is carried out in context of the activities of that establishment. On the other hand, according to
Google Spain, Google Inc. and the Greek Government, Article 4(1)(a) of Directive 95/46 is not applicable in the
case of the first of the three conditions listed by the referring court.
48 In this regard, it is to be noted first of all that recital 19 in the preamble to Directive 95/46 states that ‘establishment
on the territory of a Member State implies the effective and real exercise of activity through stable arrangements’
and that ‘the legal form of such an establishment, whether simply [a] branch or a subsidiary with a legal
personality, is not the determining factor’.
49 It is not disputed that Google Spain engages in the effective and real exercise of activity through stable
arrangements in Spain. As it moreover has separate legal personality, it constitutes a subsidiary of Google Inc.
on Spanish territory and, therefore, an ‘establishment’ within the meaning of Article 4(1)(a) of Directive 95/46.
50 In order to satisfy the criterion laid down in that provision, it is also necessary that the processing of personal
data by the controller be ‘carried out in the context of the activities’ of an establishment of the controller on the
territory of a Member State.
51 Google Spain and Google Inc. dispute that this is the case since the processing of personal data at issue in the
main proceedings is carried out exclusively by Google Inc., which operates Google Search without any
intervention on the part of Google Spain; the latter’s activity is limited to providing support to the Google group’s
advertising activity which is separate from its search engine service.
52 Nevertheless, as the Spanish Government and the Commission in particular have pointed out, Article 4(1)(a) of
Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the
establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment.
53 Furthermore, in the light of the objective of Directive 95/46 of ensuring effective and complete protection of the
fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the
processing of personal data, those words cannot be interpreted restrictively (see, by analogy, Case
C-324/09 L'Oréal and Others EU:C:2011:474, paragraphs 62 and 63).
54 It is to be noted in this context that it is clear in particular from recitals 18 to 20 in the preamble to Directive 95/46
and Article 4 thereof that the European Union legislature sought to prevent individuals from being deprived of
the protection guaranteed by the directive and that protection from being circumvented, by prescribing a
particularly broad territorial scope.
55 In the light of that objective of Directive 95/46 and of the wording of Article 4(1)(a), it must be held that the
processing of personal data for the purposes of the service of a search engine such as Google Search, which
is operated by an undertaking that has its seat in a third State but has an establishment in a Member State, is
carried out ‘in the context of the activities’ of that establishment if the latter is intended to promote and sell, in
that Member State, advertising space offered by the search engine which serves to make the service offered by
that engine profitable.
56 In such circumstances, the activities of the operator of the search engine and those of its establishment situated
in the Member State concerned are inextricably linked since the activities relating to the advertising space
constitute the means of rendering the search engine at issue economically profitable and that engine is, at the
same time, the means enabling those activities to be performed.
57 As has been stated in paragraphs 26 to 28 of the present judgment, the very display of personal data on a search
results page constitutes processing of such data. Since that display of results is accompanied, on the same
page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in
question is carried out in the context of the commercial and advertising activity of the controller’s establishment
on the territory of a Member State, in this instance Spanish territory.
58 That being so, it cannot be accepted that the processing of personal data carried out for the purposes of the
operation of the search engine should escape the obligations and guarantees laid down by Directive 95/46,
which would compromise the directive’s effectiveness and the effective and complete protection of the
fundamental rights and freedoms of natural persons which the directive seeks to ensure (see, by
analogy, L'Oréal and Others EU:C:2011:474, paragraphs 62 and 63), in particular their right to privacy, with
respect to the processing of personal data, a right to which the directive accords special importance as is
confirmed in particular by Article 1(1) thereof and recitals 2 and 10 in its preamble (see, to this effect, Joined
Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others EU:C:2003:294,
paragraph 70; Case C-553/07 Rijkeboer EU:C:2009:293, paragraph 47; and Case
C-473/12 IPI EU:C:2013:715, paragraph 28 and the case-law cited).
59 Since the first of the three conditions listed by the referring court suffices by itself for it to be concluded that an
establishment such as Google Spain satisfies the criterion laid down in Article 4(1)(a) of Directive 95/46, it is
unnecessary to examine the other two conditions.
60 It follows from the foregoing that the answer to Question 1(a) is that Article 4(1)(a) of Directive 95/46 is to be
interpreted as meaning that processing of personal data is carried out in the context of the activities of an
establishment of the controller on the territory of a Member State, within the meaning of that provision, when the
operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and
sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that
Member State.
Question 1(b) to (d)
61 In view of the answer given to Question 1(a), there is no need to answer Question 1(b) to (d).
Question 2(c) and (d), concerning the extent of the responsibility of the operator of a search engine under
Directive 95/46
62 By Question 2(c) and (d), the referring court asks, in essence, whether Article 12(b) and subparagraph (a) of the
first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the
rights laid down in those provisions, the operator of a search engine is obliged to remove from the list of results
displayed following a search made on the basis of a person’s name links to web pages, published by third parties
and containing information relating to that person, also in a case where that name or information is not erased
beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in
itself on those pages is lawful.
63 Google Spain and Google Inc. submit that, by virtue of the principle of proportionality, any request seeking the
removal of information must be addressed to the publisher of the website concerned because it is he who takes
the responsibility for making the information public, who is in a position to appraise the lawfulness of that
publication and who has available to him the most effective and least restrictive means of making the information
inaccessible. Furthermore, to require the operator of a search engine to withdraw information published on the
internet from its indexes would take insufficient account of the fundamental rights of publishers of websites, of
other internet users and of that operator itself.
64 According to the Austrian Government, a national supervisory authority may order such an operator to erase
information published by third parties from its filing systems only if the data in question have been found
previously to be unlawful or incorrect or if the data subject has made a successful objection to the publisher of
the website on which that information was published.
65 Mr Costeja González, the Spanish, Italian and Polish Governments and the Commission submit that the national
authority may directly order the operator of a search engine to withdraw from its indexes and intermediate
memory information containing personal data that has been published by third parties, without having to
approach beforehand or simultaneously the publisher of the web page on which that information appears.
Furthermore, according to Mr Costeja González, the Spanish and Italian Governments and the Commission,
the fact that the information has been published lawfully and that it still appears on the original web page has
no effect on the obligations of that operator under Directive 95/46. On the other hand, according to the Polish
Government that fact is such as to release the operator from its obligations.
66 First of all, it should be remembered that, as is apparent from Article 1 and recital 10 in the preamble, Directive
95/46 seeks to ensure a high level of protection of the fundamental rights and freedoms of natural persons, in
particular their right to privacy, with respect to the processing of personal data (see, to this
effect, IPI EU:C:2013:715, paragraph 28).
67 According to recital 25 in the preamble to Directive 95/46, the principles of protection laid down by the directive
are reflected, on the one hand, in the obligations imposed on persons responsible for processing, in particular
regarding data quality, technical security, notification to the supervisory authority and the circumstances under
which processing can be carried out, and, on the other hand, in the rights conferred on individuals whose data
are the subject of processing to be informed that processing is taking place, to consult the data, to request
corrections and even to object to processing in certain circumstances.
68 The Court has already held that the provisions of Directive 95/46, in so far as they govern the processing of
personal data liable to infringe fundamental freedoms, in particular the right to privacy, must necessarily be
interpreted in the light of fundamental rights, which, according to settled case-law, form an integral part of the
general principles of law whose observance the Court ensures and which are now set out in the Charter (see,
in particular, Case C-274/99 P Connolly v Commission EU:C:2001:127, paragraph 37, and Österreichischer
Rundfunk and Others EU:C:2003:294, paragraph 68).
69 Article 7 of the Charter guarantees the right to respect for private life, whilst Article 8 of the Charter expressly
proclaims the right to the protection of personal data. Article 8(2) and (3) specify that such data must be
processed fairly for specified purposes and on the basis of the consent of the person concerned or some other
legitimate basis laid down by law, that everyone has the right of access to data which have been collected
concerning him or her and the right to have the data rectified, and that compliance with these rules is to be
subject to control by an independent authority. Those requirements are implemented inter alia by Articles 6, 7,
12, 14 and 28 of Directive 95/46.
70 Article 12(b) of Directive 95/46 provides that Member States are to guarantee every data subject the right to
obtain from the controller, as appropriate, the rectification, erasure or blocking of data the processing of which
does not comply with the provisions of Directive 95/46, in particular because of the incomplete or inaccurate
nature of the data. As this final point relating to the case where certain requirements referred to in Article 6(1)(d)
of Directive 95/46 are not observed is stated by way of example and is not exhaustive, it follows that non-
compliant nature of the processing, which is capable of conferring upon the data subject the right guaranteed in
Article 12(b) of the directive, may also arise from non-observance of the other conditions of lawfulness that are
imposed by the directive upon the processing of personal data.
71 In this connection, it should be noted that, subject to the exceptions permitted under Article 13 of Directive 95/46,
all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6
of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of
the directive (see Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 65; Joined Cases
C-468/10 and C-469/10 ASNEF and FECEMD EU:C:2011:777, paragraph 26; and Case
C-342/12 Worten EU:C:2013:355, paragraph 33).
72 Under Article 6 of Directive 95/46 and without prejudice to specific provisions that the Member States may lay
down in respect of processing for historical, statistical or scientific purposes, the controller has the task of
ensuring that personal data are processed ‘fairly and lawfully’, that they are ‘collected for specified, explicit and
legitimate purposes and not further processed in a way incompatible with those purposes’, that they are
‘adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further
processed’, that they are ‘accurate and, where necessary, kept up to date’ and, finally, that they are ‘kept in a
form which permits identification of data subjects for no longer than is necessary for the purposes for which the
data were collected or for which they are further processed’. In this context, the controller must take every
reasonable step to ensure that data which do not meet the requirements of that provision are erased or rectified.
73 As regards legitimation, under Article 7 of Directive 95/46, of processing such as that at issue in the main
proceedings carried out by the operator of a search engine, that processing is capable of being covered by the
ground in Article 7(f).
74 This provision permits the processing of personal data where it is necessary for the purposes of the legitimate
interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where
such interests are overridden by the interests or fundamental rights and freedoms of the data subject — in
particular his right to privacy with respect to the processing of personal data — which require protection under
Article 1(1) of the directive. Application of Article 7(f) thus necessitates a balancing of the opposing rights and
interests concerned, in the context of which account must be taken of the significance of the data subject’s rights
arising from Articles 7 and 8 of the Charter (see ASNEF and FECEMD, EU:C:2011:777, paragraphs 38 and 40).
75 Whilst the question whether the processing complies with Articles 6 and 7(f) of Directive 95/46 may be
determined in the context of a request as provided for in Article 12(b) of the directive, the data subject may, in
addition, rely in certain conditions on the right to object laid down in subparagraph (a) of the first paragraph of
Article 14 of the directive.
76 Under subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, Member States are to grant the
data subject the right, at least in the cases referred to in Article 7(e) and (f) of the directive, to object at any time
on compelling legitimate grounds relating to his particular situation to the processing of data relating to him,
save where otherwise provided by national legislation. The balancing to be carried out under subparagraph (a)
of the first paragraph of Article 14 thus enables account to be taken in a more specific manner of all the
circumstances surrounding the data subject’s particular situation. Where there is a justified objection, the
processing instigated by the controller may no longer involve those data.
77 Requests under Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 may be
addressed by the data subject directly to the controller who must then duly examine their merits and, as the
case may be, end processing of the data in question. Where the controller does not grant the request, the data
subject may bring the matter before the supervisory authority or the judicial authority so that it carries out the
necessary checks and orders the controller to take specific measures accordingly.
78 In this connection, it is to be noted that it is clear from Article 28(3) and (4) of Directive 95/46 that each
supervisory authority is to hear claims lodged by any person concerning the protection of his rights and freedoms
in regard to the processing of personal data and that it has investigative powers and effective powers of
intervention enabling it to order in particular the blocking, erasure or destruction of data or to impose a temporary
or definitive ban on such processing.
79 It is in the light of those considerations that it is necessary to interpret and apply the provisions of Directive 95/46
governing the data subject’s rights when he lodges with the supervisory authority or judicial authority a request
such as that at issue in the main proceedings.
80 It must be pointed out at the outset that, as has been found in paragraphs 36 to 38 of the present judgment,
processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a
search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal
data when the search by means of that engine is carried out on the basis of an individual’s name, since that
processing enables any internet user to obtain through the list of results a structured overview of the information
relating to that individual that can be found on the internet — information which potentially concerns a vast
number of aspects of his private life and which, without the search engine, could not have been interconnected
or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him.
Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the
important role played by the internet and search engines in modern society, which render the information
contained in such a list of results ubiquitous (see, to this effect, Joined Cases C-509/09 and C-161/10 eDate
Advertising and Others EU:C:2011:685, paragraph 45).
81 In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the
economic interest which the operator of such an engine has in that processing. However, inasmuch as the
removal of links from the list of results could, depending on the information at issue, have effects upon the
legitimate interest of internet users potentially interested in having access to that information, in situations such
as that at issue in the main proceedings a fair balance should be sought in particular between that interest and
the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s
rights protected by those articles also override, as a general rule, that interest of internet users, that balance
may however depend, in specific cases, on the nature of the information in question and its sensitivity for the
data subject’s private life and on the interest of the public in having that information, an interest which may vary,
in particular, according to the role played by the data subject in public life.
82 Following the appraisal of the conditions for the application of Article 12(b) and subparagraph (a) of the first
paragraph of Article 14 of Directive 95/46 which is to be carried out when a request such as that at issue in the
main proceedings is lodged with it, the supervisory authority or judicial authority may order the operator of the
search engine to remove from the list of results displayed following a search made on the basis of a person’s
name links to web pages published by third parties containing information relating to that person, without an
order to that effect presupposing the previous or simultaneous removal of that name and information — of the
publisher’s own accord or following an order of one of those authorities — from the web page on which they
were published.
83 As has been established in paragraphs 35 to 38 of the present judgment, inasmuch as the data processing
carried out in the context of the activity of a search engine can be distinguished from and is additional to that
carried out by publishers of websites and affects the data subject’s fundamental rights additionally, the operator
of the search engine as the controller in respect of that processing must ensure, within the framework of its
responsibilities, powers and capabilities, that that processing meets the requirements of Directive 95/46, in order
that the guarantees laid down by the directive may have full effect.
84 Given the ease with which information published on a website can be replicated on other sites and the fact that
the persons responsible for its publication are not always subject to European Union legislation, effective and
complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure
of the information relating to them from the publishers of websites.
85 Furthermore, the processing by the publisher of a web page consisting in the publication of information relating
to an individual may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit,
by virtue of Article 9 of Directive 95/46, from derogations from the requirements laid down by the directive,
whereas that does not appear to be so in the case of the processing carried out by the operator of a search
engine. It cannot therefore be ruled out that in certain circumstances the data subject is capable of exercising
the rights referred to in Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46
against that operator but not against the publisher of the web page.
86 Finally, it must be stated that not only does the ground, under Article 7 of Directive 95/46, justifying the publication
of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of
search engines, but also, even where that is the case, the outcome of the weighing of the interests at issue to
be carried out under Article 7(f) and subparagraph (a) of the first paragraph of Article 14 of the directive may
differ according to whether the processing carried out by the operator of a search engine or that carried out by
the publisher of the web page is at issue, given that, first, the legitimate interests justifying the processing may
be different and, second, the consequences of the processing for the data subject, and in particular for his
private life, are not necessarily the same.
87 Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s
name, of a web page and of the information contained on it relating to that person makes access to that
information appreciably easier for any internet user making a search in respect of the person concerned and
may play a decisive role in the dissemination of that information, it is liable to constitute a more significant
interference with the data subject’s fundamental right to privacy than the publication on the web page.
88 In the light of all the foregoing considerations, the answer to Question 2(c) and (d) is that Article 12(b) and
subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in
order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those
provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results
displayed following a search made on the basis of a person’s name links to web pages, published by third parties
and containing information relating to that person, also in a case where that name or information is not erased
beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in
itself on those pages is lawful.
Question 3, concerning the scope of the data subject’s rights guaranteed by Directive 95/46
89 By Question 3, the referring court asks, in essence, whether Article 12(b) and subparagraph (a) of the first
paragraph of Article 14 of Directive 95/46 are to be interpreted as enabling the data subject to require the
operator of a search engine to remove from the list of results displayed following a search made on the basis of
his name links to web pages published lawfully by third parties and containing true information relating to him,
on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain
time.
90 Google Spain, Google Inc., the Greek, Austrian and Polish Governments and the Commission consider that this
question should be answered in the negative. Google Spain, Google Inc., the Polish Government and the
Commission submit in this regard that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of
Directive 95/46 confer rights upon data subjects only if the processing in question is incompatible with the
directive or on compelling legitimate grounds relating to their particular situation, and not merely because they
consider that that processing may be prejudicial to them or they wish that the data being processed sink into
oblivion. The Greek and Austrian Governments submit that the data subject must approach the publisher of the
website concerned.
91 According to Mr Costeja González and the Spanish and Italian Governments, the data subject may oppose the
indexing by a search engine of personal data relating to him where their dissemination through the search engine
is prejudicial to him and his fundamental rights to the protection of those data and to privacy — which encompass
the ‘right to be forgotten’ — override the legitimate interests of the operator of the search engine and the general
interest in freedom of information.
92 As regards Article 12(b) of Directive 95/46, the application of which is subject to the condition that the processing
of personal data be incompatible with the directive, it should be recalled that, as has been noted in paragraph 72
of the present judgment, such incompatibility may result not only from the fact that such data are inaccurate but,
in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of
the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they
are required to be kept for historical, statistical or scientific purposes.
93 It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful
processing of accurate data may, in the course of time, become incompatible with the directive where those
data are no longer necessary in the light of the purposes for which they were collected or processed. That is so
in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to
those purposes and in the light of the time that has elapsed.
94 Therefore, if it is found, following a request by the data subject pursuant to Article 12(b) of Directive 95/46, that
the inclusion in the list of results displayed following a search made on the basis of his name of the links to web
pages published lawfully by third parties and containing true information relating to him personally is, at this
point in time, incompatible with Article 6(1)(c) to (e) of the directive because that information appears, having
regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in
relation to the purposes of the processing at issue carried out by the operator of the search engine, the
information and links concerned in the list of results must be erased.
95 So far as concerns requests as provided for by Article 12(b) of Directive 95/46 founded on alleged non-
compliance with the conditions laid down in Article 7(f) of the directive and requests under subparagraph (a) of
the first paragraph of Article 14 of the directive, it must be pointed out that in each case the processing of
personal data must be authorised under Article 7 for the entire period during which it is carried out.
96 In the light of the foregoing, when appraising such requests made in order to oppose processing such as that at
issue in the main proceedings, it should in particular be examined whether the data subject has a right that the
information relating to him personally should, at this point in time, no longer be linked to his name by a list of
results displayed following a search made on the basis of his name. In this connection, it must be pointed out
that it is not necessary in order to find such a right that the inclusion of the information in question in the list of
results causes prejudice to the data subject.
97 As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that
the information in question no longer be made available to the general public by its inclusion in such a list of
results, it should be held, as follows in particular from paragraph 81 of the present judgment, that those rights
override, as a rule, not only the economic interest of the operator of the search engine but also the interest of
the general public in finding that information upon a search relating to the data subject’s name. However, that
would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public
life, that the interference with his fundamental rights is justified by the preponderant interest of the general public
in having, on account of inclusion in the list of results, access to the information in question.
98 As regards a situation such as that at issue in the main proceedings, which concerns the display, in the list of
results that the internet user obtains by making a search by means of Google Search on the basis of the data
subject’s name, of links to pages of the on-line archives of a daily newspaper that contain announcements
mentioning the data subject’s name and relating to a real-estate auction connected with attachment proceedings
for the recovery of social security debts, it should be held that, having regard to the sensitivity for the data
subject’s private life of the information contained in those announcements and to the fact that its initial publication
had taken place 16 years earlier, the data subject establishes a right that that information should no longer be
linked to his name by means of such a list. Accordingly, since in the case in point there do not appear to be
particular reasons substantiating a preponderant interest of the public in having, in the context of such a search,
access to that information, a matter which is, however, for the referring court to establish, the data subject may,
by virtue of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, require
those links to be removed from the list of results.
99 It follows from the foregoing considerations that the answer to Question 3 is that Article 12(b) and subparagraph
(a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising
the conditions for the application of those provisions, it should inter alia be examined whether the data subject
has a right that the information in question relating to him personally should, at this point in time, no longer be
linked to his name by a list of results displayed following a search made on the basis of his name, without it
being necessary in order to find such a right that the inclusion of the information in question in that list causes
prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and
8 of the Charter, request that the information in question no longer be made available to the general public on
account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of
the operator of the search engine but also the interest of the general public in having access to that information
upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for
particular reasons, such as the role played by the data subject in public life, that the interference with his
fundamental rights is justified by the preponderant interest of the general public in having, on account of its
inclusion in the list of results, access to the information in question.
Costs
100 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the
referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the
Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of
24 October 1995 on the protection of individuals with regard to the processing of personal data
and on the free movement of such data are to be interpreted as meaning that, first, the activity of
a search engine consisting in finding information published or placed on the internet by third
parties, indexing it automatically, storing it temporarily and, finally, making it available to internet
users according to a particular order of preference must be classified as ‘processing of personal
data’ within the meaning of Article 2(b) when that information contains personal data and,
second, the operator of the search engine must be regarded as the ‘controller’ in respect of that
processing, within the meaning of Article 2(d).
2. Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data
is carried out in the context of the activities of an establishment of the controller on the territory
of a Member State, within the meaning of that provision, when the operator of a search engine
sets up in a Member State a branch or subsidiary which is intended to promote and sell
advertising space offered by that engine and which orientates its activity towards the inhabitants
of that Member State.
3. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be
interpreted as meaning that, in order to comply with the rights laid down in those provisions and
in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a
search engine is obliged to remove from the list of results displayed following a search made on
the basis of a person’s name links to web pages, published by third parties and containing
information relating to that person, also in a case where that name or information is not erased
beforehand or simultaneously from those web pages, and even, as the case may be, when its
publication in itself on those pages is lawful.
4. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be
interpreted as meaning that, when appraising the conditions for the application of those
provisions, it should inter alia be examined whether the data subject has a right that the
information in question relating to him personally should, at this point in time, no longer be linked
to his name by a list of results displayed following a search made on the basis of his name,
without it being necessary in order to find such a right that the inclusion of the information in
question in that list causes prejudice to the data subject. As the data subject may, in the light of
his fundamental rights under Articles 7 and 8 of the Charter, request that the information in
question no longer be made available to the general public on account of its inclusion in such a
list of results, those rights override, as a rule, not only the economic interest of the operator of
the search engine but also the interest of the general public in having access to that information
upon a search relating to the data subject’s name. However, that would not be the case if it
appeared, for particular reasons, such as the role played by the data subject in public life, that
the interference with his fundamental rights is justified by the preponderant interest of the
general public in having, on account of its inclusion in the list of results, access to the information
in question.
[Signatures]
A.M. No. MTJ-12-1813
OFFICE OF THE COURT ADMINISTRATOR, Complainant

vs
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent
x-----------------------x
A.M. N0.12-1-09-MeTC
RE: LETTER DATED 21 JULY 2011 OF EXECUTIVE JUDGE BIBIANO G. COLASITO AND
THREE (3) OTHER JUDGES OF THE METROPOLITAN TRIAL COURT, PASAY CITY, FOR THE
SUSPENSION OR DETAIL TO ANOTHER STATION OF JUDGE ELIZA B. YU, BRANCH 47,
SAME COURT.
x-----------------------x
A.M. NO. MTJ-13-1836

(Formerly A.M. No. 11-11-115- MeTC)
RE: LETTER DATED MAY 2, 2011 OF HON. ELIZA B. YU, PRESIDING JUDGE,
METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY.
x-----------------------x
A.M. NO. MTJ-12-1815

(Formerly OCA IPI No. 11-2401- MTJ)
LEILANI A. TEJERO-LOPEZ, Complainant,

vs.
JUDGE ELIZA B. YU, BRANCH 47, METROPOLITAN TRIAL COURT, PASA Y CITY, Respondent.
x-----------------------x
OCA IPI NO. 11-2398-MTJ
JOSEFINA G. LABID, Complainant,

vs.
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent.
x-----------------------x
AMOR V. ABAD, FROILAN ROBERT L. TOMAS, ROMER H. A VILES, EMELINA J. SAN

MIGUEL, NORMAN D.S. GARCIA, MAXIMA SA YO and DENNIS ECHEGOYEN, Complainants,
vs.
HON. ELIZA B. YU, PRESIDING JUDGE, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY
CITY, Respondent.
x-----------------------x
EXECUTIVE JUDGE BIBIANO G. COLAS ITO, VICE EXECUTIVE JUDGE BONIFACIO S.

PASCUA, JUDGE RESTITUTO V. MANGALINDAN, JR., JUDGE CATHERINE P. MANODON,
MIGUEL C. INFANTE (CLERK OF COURT IV, OCC-METC), RACQUEL C. DIANO (CLERK OF
COURT Ill, METC, BRANCH 45), EMMA ANNIE D. ARAFILES (ASSISTANT CLERK OF COURT,
OCC-METC), PEDRO C. DOCTOLERO, JR. (CLERK OF COURT Ill, METC, BRANCH 44), LYDIA
T. CASAS (CLERK OF COURT III, METC, BRANCH 46), ELEANOR N. BA YOG (LEGAL
RESEARCHER,METC,BRANCH 45), LEILANIE A. TEJERO (LEGAL RESEARCHER, METC,
BRANCH 46), ANA MARIA V. FRANCISCO (CASHIER I, OCCMETC), SOLEDAD J. BASSIG
(CLERK III, OCC-METC), MARISSA MASHHOOR RASTGOOY (RECORDS OFFICER, OCC-
METC), MARIE LUZ M. OBIDA (ADMINISTRATIVE OFFICER, OCC-METC), VIRGINIA D.
GALANG (RECORDS OFFICER I, OCC-METC), AUXENCIO JOSEPH CLEMENTE (CLERK OF
COURT III, METC, BRANCH 48), EVELYN P. DEPALOBOS (LEGAL RESEARCHER, METC,
BRANCH 44), MA. CECILIA GERTRUDES R. SALVADOR (LEGAL RESEARCHER, METC,
BRANCH 48), JOSEPH B. PAMATMAT (CLERK Ill, OCCMETC), ZENAIDA N. GERONIMO
(COURT STENOGRAPHER, OCC-METC), BENJIE V. ORE (PROCESS SERVER, OCC-METC),
FORTUNATO E. DIEZMO (PROCESS SERVER, OCCMETC), NO MER B. VILLANUEVA (UTILITY
WORKER, OCC-METC), ELSA D. GARNET (CLERK Ill, OCCMETC), FATIMA V. ROJAS (CLERK
III, OCC-METC), EDUARDO E. EBREO (SHERIFF III, METC, BRANCH 45), RONALYN T.
ALMARVEZ (COURT STENOGRAPHER II, METC, BRANCH 45), MA. VICTORIA C. OCAMPO
(COURT STENOGRAPHER II, METC, BRANCH 45), ELIZABETH LIPURA (CLERK III METC,
BRANCH 45), MARY ANN J. CAYANAN (CLERK III, METC, BRANCH 45), MANOLO MANUEL E.
GARCIA (PROCESS SERVER, METC, BRANCH 45), EDWINA A. JUROK (UTILITY WORKER,
OCC-METC), ARMINA B. ALMONTE (CLERK III, OCC-METC), ELIZABETH G. VILLANUEVA
(RECORDS OFFICER, METC, BRANCH 44), ERWIN RUSS B. RAGASA (SHERIFF III, METC,
BRANCH 44), BIEN T. CAMBA (COURT STENOGRAPHER II, METC, BRANCH 44), MARLON M.
SULIGAN (COURT STENOGRAPHER II, METC, BRANCH 44), CHANDA B. TOLENTINO
(COURT STENOGRAPHER II, METC, BRANCH 44), FERDINAND R. MOLINA (COURT
INTERPRETER, METC, BRANCH 44), PETRONILO C. PRIMACIO, JR. (PROCESS SERVER,
METC, BRANCH 45), EDWARD ERIC SANTOS (UTILITY WORKER, METC, BRANCH 45),
EMILIO P. DOMINE (UTILITY WORKER, METC, BRANCH 45), ARNOLD P. OBIAL (UTILITY
WORKER, METC, BRANCH 44), RICARDO E. LAMPITOC (SHERIFF III, METC, BRANCH 46),
JEROME H. A VILES (COURT STENOGRAPHER II, METC, BRANCH 46), ANA LEA M. ESTACIO
(COURT STENOGRAPHER II, METC, BRANCH 46), LANIE F. AGUINALDO (CLERK III, METC,
BRANCH 44), JASMINE L. LINDAIN (CLERK III, METC, BRANCH 44), RONALDO S. QUIJANO
(PROCESS SERVER, METC, BRANCH 44), DOMINGO H. HOCOSOL (UTILITY WORKER, METC,
BRANCH 48), EDWIN P. UBANA (SHERIFF III, METC, BRANCH 48), MARVIN 0. BALICUATRO
(COURT STENOGRAPHER II, METC, BRANCH 48), MA. LUZ D. DIONISIO (COURT
STENOGRAPHER II, METC, BRANCH 48), MARIBEL A. MOLINA (COURT STENOGRAPHER II,
METC, BRANCH 48), CRISTINA E. LAMPITOC (COURT STENOGRAPHER II, METC, BRANCH
46), MELANIE DC. BEGASA (CLERK III, METC, BRANCH 46), EV ANGELINE M. CHING (CLERK
III, METC, BRANCH 46), LA WREN CE D. PEREZ (PROCESS SERVER, METC, BRANCH 46),
EDMUNDO VERGARA (UTILITY WORKER, METC, BRANCH 46), AMOR V. ABAD (COURT
INTERPRETER, METC, BRANCH 47), ROMER H. A VILES (COURT STENOGRAPHER II, METC,
BRANCH 47), FROILAN ROBERT L. TOMAS (COURT STENOGRAPHER II, METC, BRANCH
47), MAXIMA C. SAYO (PROCESS SERVER, BRANCH 47), SEVILLA B. DEL CASTILLO
(COURT INTERPRETER, METC, BRANCH 48), AIDA JOSEFINA IGNACIO (CLERK III, METC,
BRANCH 48), BENIGNO A. MARZAN (CLERK III, METC, BRANCH 48), KARLA MAE R.
PACUNAYEN (CLERK III, METC, BRANCH 48), IGNACIO M. GONZALES (PROCESS SERVER,
METC, BRANCH 48), EMELINA J. SAN MIGUEL (RECORDS OFFICER, OCC, DETAILED AT
BRANCH 47), DENNIS M. ECHEGOYEN (SHERIFF III, OCC-METC), NORMAN GARCIA
(SHERIFF III, METC, BRANCH 47), NOEL G. LABID (UTILITY WORKER I, BRANCH
47), Complainant,
vs.
CITY, Respondent.
x-----------------------x
JUDGE BIBIANO G. COLASITO, JUDGE BONIFACIO S. PASCUA, JUDGE RESTITUTO V.

MANGALINDAN, JR. and CLERK OF COURT MIGUEL C. INFANTE, Complainants,
vs.
CITY, Respondent.
x-----------------------x
A.M. NO. MTJ-13-1821
JUDGE EMILY L. SAN GASPAR- GITO, METROPOLITAN TRIAL COURT, BRANCH 20,
MANILA, Complainant,
vs.
JUDGE ELIZA B. YU, METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent.
RESOLUTION
PER CURIAM:
We hereby consider and resolve respondent Eliza B. Yu's Motion for Reconsideration with
Explanation for the Show Cause Order filed vis-a-vis the decision promulgated on November 22,
2016 disposing against her as follows:
WHEREFORE, the Court FINDS and PRONOUNCES respondent JUDGE ELIZA B. YU GUILTY of
GROSS INSUBORDINATION; GROSS IGNORANCE OF THE LAW; GROSS MISCONDUCT;
GRAVE ABUSE OF AUTHORITY; OPPRESSION; and CONDUCT UNBECOMING OF A JUDICIAL
OFFICIAL; and, ACCORDINGLY, DISMISSES her from the service EFFECTIVE IMMEDIATELY,
with FORFEITURE OF ALL HER BENEFITS, except accrued leave credits, and further
DISQUALIFIES her from reinstatement or appointment to any public office or employment, including
to one in any government-owned or government-controlled corporations.
Respondent JUDGE ELIZA B. YU is directed to show cause in writing within ten (10) days from
notice why she should not be disbarred for violation of the Lawyer's Oath, the Code of Professional
Responsibility, and the Canons of Professional Ethics as outlined herein.
Let a copy of this decision be furnished to the Office of the Court Administrator for its information and
guidance.
SO ORDERED.1
In her motion, the respondent repeatedly denies committing all the administrative offenses for which
she was held guilty, and insists on the absence of proof to support the findings against her. She
pleads that the Court reconsiders based on the following:
1. Noncompliance with A.O. No. 19-2011
The complaint against her was premature because of the pendency of her protest against night court
duty. A.O. No. 19-2011 did not carry a penal provision, and was only directory because of the use of
the permissive word may. In addition to A.O. No. 19-2011 being noncompliant with the requirements
of a valid administrative order, the requirement of night court duty violated Section 5, Rule XVII of
the Omnibus Rules Implementing Book V of the Administrative Code,2 which limited the working
hours for government officials and employees. It was also not illegal to write to the Secretary of the
Department of Tourism (DOT) considering that he was the requesting authority regarding the
rendering of the night court duty. She did not publicly broadcast her disobedience to A.O. No. 19-
2011 when she wrote the letter to the Secretary. There was no law prohibiting her from writing the
protest letters. At any rate, she had the right to do so under the Freedom of Speech Clause. She did
not refuse to obey A.O. No. 19-2011 because she actually allowed her staff to report for night duty.
She did not willfully and intentionally disobey because her protest had legal basis. She would also
violate Section 3(a)3 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) if she would
comply with the patently illegal A.O. No. 19-2011.4
2. Refusal to honor the appointments of Ms. Mariejoy P. Lagman and Ms. Leilani Tejero-Lopez
The respondent claims that she did not refuse to honor the appointment because rejection was
different from protesting the appointment. She merely exercised her statutory right as a judge to
question the appointment of the branch clerk of court assigned to her sala. Under Canon 2, Section
3 of the New Code of Judicial Conduct for the Philippine Judiciary,5 she was mandated to bring to the
proper authorities the irregularities surrounding the appointments. Moreover, the contents of the
complaint letter and the protest could not be used against her pursuant to the constitutional right
against self-incrimination. She did not also commit any act of cruelty against Ms. Tejera-Lopez; on
the contrary, it was Ms. Tejero-Lopez who "went beyond the norms of decency by her persistent and
annoying application in my court that it actually became a harassment." Her opposition against the
appointment of Ms. Lagman was meritorious. She only employed the wrong choice of words with her
choice of the term privileged communication that was viewed negatively. There was no proof of the
alleged verbal threats, abuse, misconduct or oppression committed against Ms. Tejero-Lopez. It was
not proper to penalize a judge based on a "letter with few words that other people find
objectionable."6
3. Show-cause order respondent issued against fellow judges
The respondent posits that the show-cause order she issued to her fellow judges had legal basis
because "anything that is legal cannot be an assumption of the role of a tyrant wielding power with
unbridled breath."7 It was premature to rule that she thereby abused and committed misconduct
because she did not issue any ruling on the explanation by the other judges.8 She did not violate
Section 5, Canon 3 and Section 8, Canon 4 of the Code of Judicial Conduct. What the other judges
should have done was to avail themselves of the appropriate remedy.9
4. Refusal to sign the leave of absence of Mr. Noel Labid
The refusal to sign the application for leave of absence had factual and legal bases.10 Moreover, she
should be presumed to have acted in good faith if she misconstrued the rules on approval of
application of leave.11
5. Allowing on-the-job trainees
The respondent claims that she did not order the trainees to perform judicial tasks. She asserts that
she could not remember their affidavit. She had no personal knowledge that the trainees were made
to serve as assistant court stenographers. Based on what she heard, the trainees were only in the
premises of her court for a few hours. She reminds that she allowed the trainees to merely observe
proceedings. OCA Circular No. 111-2005 was impliedly amended when paralegals and law students
were allowed to be trained under the Hustisyeah Project.12
6. Designation of an officer-in-charge and ordering reception of evidence by a non-lawyer
The respondent denies having violated CSC Memorandum Circular No. 06-05 when she designated
an officer-in-charge. There was no proof showing that she willfully and deliberately intended to cause
public damage. In fact, the OCA recognized Mr. Ferdinand Santos as the OIC of her branch in
several letters. There was no proof that she violated Section 9, Rule 30 of the Rules of Court. The ex
parte reception of evidence by a non-lawyer clerk of court was allowed under the Rules of Court, as
well as by Section 2l(e), Administrative Circular No. 35-2004, and Administrative Circular No. 37-93.13
7. Allowing criminal proceedings to continue despite the absence of counsel
The respondent merely followed the Rules of Criminal Procedure in allowing criminal proceedings
despite absence of counsel. In so doing, she relied in good faith on the rulings in People v.
Arcilla,14 Bravo v. Court of Appeals,15 and People v. Malinao.16 Under Section l(c), Rule 115 of
the Rules of Criminal Procedure, the accused may be allowed to defend himself in person without
the assistance of counsel.17
8. Sending of inappropriate email messages
The respondent maintains that the e-mail messages were hearsay because the certification by the
SC-MISO was not presented to her, depriving her of the opportunity to object. Her granting access
by the MISO to her private e-mails was conditional to prove tampering. Her
Lycos e-mail account was hacked. She did not completely waive her right to privacy. Considering
that she did not authenticate said e-mail messages, the same were inadmissible for being hearsay.
The e-mail messages with her full name written in capital letters as the sender did not emanate from
her because her Yahoo! and MSN accounts carried her name with only the first letters being
capitalized. The e-mails reproduced in the decision were not the same messages that she had
requested Judge San Gaspar-Gito to delete. There were words that she did not write on the e-mail
messages pertaining to her demand for reimbursement of $10.00. Her writing style was different
from what appeared in the e-mail messages. She denies having opened the "Rudela San Gaspar"
account. It was wrong to penalize her based on assumptions and speculations. She did not commit
electronic libel. Her funny and innocent comments were not actionable documents. The certification
by the SC MISO was not an authentication as to the truthfulness of the contents of the e-mail
messages and as to the identification of the sender or author of the messages. It was wrong and
unjust to impute wrongdoing to her when there was no proof that she had sent the inappropriate
messages. The disclaimer in the e-mails were not printed in the decision; hence, the messages were
inadmissible. The presentation of the messages without her consent as the sender was covered by
the exclusionary rule. Letters and communications in writing were guaranteed and protected by
Sections 2,18 3(1),19 Article III of the 1987 Constitution, and Article 723 of the Civil Code,20 Articles
22621 and 22822 of the Revised Penal Code, Section 2756 of the Revised Administrative
Code,23 Sections 3224 and 3325 of the R.A. No. 8792. There was no proof that she had apologized
through e-mail, and had sent messages with sexual undertones and lewd graphics. Judge Gita had
a dirty mind because nothing was wrong with the 69 image by Felicien Raps. She (respondent) did
not commit internet stalking. She had difficulty in remembering the private communications, which
were taken out of context. It was Judge Gita who must have a problem because she had kept the
trash messages. She (respondent) did not transgress any law. The allegations against her were
hearsay. She submitted a letter proposal for a "winwin" solution so that she would not pursue any
criminal action against Judge Gito. She did not violate Section 8, Canon 4 of the New Code of
Judicial Conduct because it was one of her staff who had typed the letter addressed to Atty. San
Gaspar. To find her to have abused her power and committed impropriety was unwarranted. Her
absence from the investigation conducted by Justice Abdulwahid could not be taken against her and
could not be construed as her admission of wrong doing or as an evasion of truth. There was no
proof that she had used the phrase our court to advance her personal interest.26
Ruling of the Court
We deny the respondent's Motion for Reconsideration with Explanation for the Show Cause
Order for the following reasons.
1.
The respondent's Motion for Reconsideration is denied for lack of merit
The submissions tendered in the respondent's Motion for Reconsideration with Explanation for the
Show Cause Order were matters that the Court had already exhaustively considered and fully
resolved in the decision of November 22, 2016. We deem it unnecessary to dwell at length on such
submissions. We still hold and declare that the respondent flagrantly and blatantly violated the
Lawyer's Oath, and several canons and rules of the Code of Professional Responsibility, the Canon
of Judicial Ethics and the New Judicial Code of Conduct.
Nonetheless, we propose to expound on some points for greater enlightenment on the issues and
grounds taken into consideration in removing the respondent from the Judiciary, and for purposes of
providing the requisite predicate to the ruling on the directive for her to show sufficient cause in
writing why she should not also be disbarred from the Roll of Attorneys.
The respondent insists that there was no proof to support the adverse findings of the Court. She is
absolutely mistaken. The records involved in these cases were voluminous, because they consisted
of the affidavits and other evidence submitted by the several complainants as well as her own
pleadings and motions, most of which constituted proof of her administrative wrongdoings. As
the per curiam decision of November 22, 2016 indicated, her explanations vis-a-vis the complaints
often backfired against her, and all the more incriminated her by systematically exposing her
personal and professional ineptitude and stilted logic. In short, the evidence against her was too
compelling to ignore, and sufficed to warrant the supreme action of her removal from the Judiciary.
She was more than aware that the quantum of evidence required in administrative proceedings like
these was substantial evidence, or that amount of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.27
The respondent's argument that she was deprived of the guarantee against self-incrimination has no
basis. As a judge, she was quite aware that the constitutional guarantee only set the privilege of an
individual to refuse to answer incriminating questions that may directly or indirectly render her
criminally liable. The constitutional guarantee simply secures to a witness - whether a party or not -
the right to refuse to answer any particular incriminatory question.28 The privilege did not prohibit
legitimate inquiry in non-criminal matters. At any rate, the rule only finds application in case of oral
testimony and does not apply to object evidence. As the Court has pointed out in People v. Malimit:29
[The right against self-incrimination], as put by Mr. Justice Holmes in Holt vs. United States, "x x x is
a prohibition of the use of physical or moral compulsion, to extort communications from him x x x" It
is simply a prohibition against legal process to extract from the [accused] 's own lips, against his will,
admission of his guilt. It docs not apply to the instant case where the evidence sought to be excluded
is not an incriminating statement but an object evidence. Wigmore, discussing the question now
before us in his treatise on evidence, thus, said:
If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal
utterances, but also for his physical control in whatever form exercise, then, it would be possible for
a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the
authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing
his possession and compelling the surrender of the evidential articles - a clear reduction ad
absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, x x x
but testimonial compulsion.30
The respondent's correspondences were outside the scope of the constitutional proscription against
self-incrimination. She had not been subjected to testimonial compulsion in which she could validly
raise her right against self-incrimination. Worthy to recall is that she had herself voluntarily waived
her right to be present and to confront the complainant and her witnesses and evidence during the
administrative investigation conducted by CA Associate Justice Hakim Abdulwahid. She was
emphatically granted the opportunity to confront the complainant and her witnesses but the voluntary
and knowing waiver of her presence divested her of the right to insist on the right to confrontation, if
any.
The respondent contends that she was not given the opportunity to raise her objection to the
certification issued by the SC-MISO. This contention is dismissed also because of the same
voluntary waiver of her presence from the proceedings held before Justice Abdulwahid.
At any rate, the respondent alternatively pleads for compassion and mercy, and vows not to repeat
the same transgressions. In this connection, she would have the Court consider in her favor the
following mitigating circumstances pursuant to Section 48, Rule 10 of the Revised Rules of
Administrative Cases in Civil Service,31 which provides thus:
1. Medications on allergies as analogous circumstance to an unsubstantiated charge;
2. Good faith on each the unsubstantiated charge xxx;
3. First time offense of the unsubstantiated charge;
4. Lack of education or lack of experience on administrative matters as analogous circumstance to

the unsubstantiated charge;
5. Newness or short number in the judicial service as analogous circumstance to the

unsubstantiated charge;
6. Very different work culture from previous employment as unsubstantiated charge;
7. Lack of prejudice to the public as analogous circumstance to the unsubstantiated charge;

8. Remorse for not listening to the unsolicited advices of Court Administrator Jose Midas Marquez
and Assistant Court Administrator Thelma Bahia as analogous circumstance to the unsubstantiated
charge;
9. Lack of intent to commit any wrong as analogous circumstance to the unsubstantiated charge;
10. Previously received awards in the performance of his duties to the unsubstantiated charge; and
11. Outstanding court performance as to cases disposal for year to the unsubstantiated charge.32
The respondent's pleading is unworthy of sympathy.
Firstly, the respondent does not thereby present any compelling argument on how her having
medications for allergies was analogous to physical illness under Section 48(a) of the Revised Rules
of Administrative Cases in Civil Service. Although the list of circumstances in Section 48 is not
exclusive because the provision expressly recognizes other analogous circumstances, she cannot
simply state any situation without pointing out why it would be analogous to the listed circumstances.
The Court is unable to appreciate how her consumption of medications for allergies could generate
arrogance, insubordination, gross ignorance of laws, and offensive conduct that manifested
themselves in the periods material to the administrative complaints.
Secondly, the respondent's overall conduct negated her allegation of good faith. Good faith implies
the lack of any intention to commit a wrongdoing. Based on the totality of her acts and actuations,
her claims of good faith and lack of intent to commit a wrong cannot be probable. According to Civil
Service Commission v. Maala,33 good faith as a defense in administrative investigations has been
discussed in this wise:
In common usage, the term "good faith" is ordinarily used to describe that state of mind denoting
"honesty of intention, and freedom from knowledge of circumstances which ought to put the holder
upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another,
even through technicalities of law, together with absence of all information, notice, or benefit or belief
of facts which render transaction unconscientious."
In short, good faith is actually a question of intention. Although this is something internal, we can
ascertain a person's intention by relying not on his own protestations of good faith, which is
self-serving, but on evidence of his conduct and outward acts. (bold emphasis supplied)
The respondent is reminded that her removal from the Judiciary by reason of her gross
insubordination and gross misconduct did not proceed only from her non-compliance with A.O. No.
19-2011. Other acts and actuations were also efficient causes, namely: (1) her refusal to abide by
the directive of MeTC Executive Judge Bibiano Colasito that resulted in the disruption of orderliness
in the other Pasay City MeTCs to the prejudice of the public service and public interest; (2) her direct
communications to the DOT Secretary and other agencies that seriously breached established
protocols, thereby opening an irregular avenue to publicly broadcast her defiance to the directive of
the Court itself; and (3) her willful disregard of the direct advice by the Court Administrator despite
the latter being the official expressly authorized by law to assist the Court in exercising
administrative supervision over all lower courts and personnel.34
Furthermore, we emphatically observed and pointed out in the decision of November 22, 2016 the
following:
In all, Judge Yu exhibited an unbecoming arrogance in committing insubordination and gross
misconduct. By her refusal to adhere to and abide by A.O. No. 19-2011, she deliberately
disregarded her duty to serve as the embodiment of the law at all times. She thus held herself above
the law by refusing to be bound by the issuance of the Court as the duly constituted authority on
court procedures and the supervision of the lower courts. To tolerate her insubordination and gross
misconduct is to abet lawlessness on her part. She deserved to be removed from the service
because she thereby revealed her unworthiness of being part of the Judiciary. (Bold emphasis
supplied)
We have stated in the decision of November 22, 2016 that the respondent's recalcitrant streak did
not end with her unbecoming repudiation of and defiance to A.O. No. 19-2011. To recall, she also
exhibited extreme arrogance in rejecting the valid appointments of Ms. Lagman and Ms. Tejero-
Lopez despite being fully aware that the appointing powers pertained to and were being thereby
exercised by the Court, and that she was bereft of any discretion to control or reject the
appointments. Under no circumstance could she be justified in draping herself with the mantle of
good faith in regard to her insubordination and arrogance.
We also reject the respondent's appeal for relief based on her supposed lack of experience as a
neophyte judge, and her previously received awards and outstanding court performance. Lack of
experience had no relevance in determining her administrative liabilities for acts and actuations
fundamentally irregular or contrary to judicial ethical standards. We even believe that her being a
novice in the Judiciary, instead of mitigating her liability, could have aggravated her offense, for her
being a neophyte judge should have impelled her instead to practice greater prudence and caution
in her daily actuations and performance. But instead of pausing and hesitating, she acted rashly and
imprudently by condescendingly asserting herself over her peers, by flagrantly disobeying her
superiors, including this Court, and by ignoring obvious boundaries that should have kept her in
check or reined her in. On the other hand, the awards for outstanding performances as a
professional and as a judge, far from accenting her good qualities as a person, rather highlighted her
unworthiness to remain on the Bench by showing that her misconduct and general bad attitude as a
member thereof has put the awards and recognitions in serious question.
2.
Disbarment is also to be imposed on the respondent
The respondent's accountability did not end with her removal from the Judiciary. In the decision of
November 22, 2016, we declared that her misdemeanor as a member of the Bench could also cause
her expulsion from the Legal Profession through disbarment. Consequently, we directed her to show
good and sufficient cause why her actions and actuations should not also be considered grounds for
her disbarment, justifying our directive in the following manner, viz.:
The foregoing findings may already warrant Judge Yu's disbarment.
A.M. No. 02-9-02-SC, dated September 17, 2002 and entitled Re: Automatic Conversion of Some
Administrative Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of
Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary
Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar, relevantly
states:
Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan; judges
of regular and special courts; and court officials who are lawyers are based on grounds which are
likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath,
the Code of Professional Responsibility, and the Canons of Professional Ethics, or for such other
forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of
lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary
action against the respondent Justice, judge or court official concerned as a member of the Bar. The
respondent may forthwith be required to comment on the complaint and show cause why he should
not also be suspended, disbarred or otherwise disciplinarily sanctioned as a member of the Bar.
Judgment in both respects may be incorporated in one decision or resolution.
Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of
gross misconduct and willful disobedience of any lawful order of a superior court. Given her wanton
defiance of the Court's own directives, her open disrespect towards her fellow judges, her blatant
abuse of the powers appurtenant to her judicial office, and her penchant for threatening the
defenseless with legal actions to make them submit to her will, we should also be imposing the
penalty of disbarment. The object of disbarment is not so much to punish the attorney herself as it is
1âw phi1
to safeguard the administration of justice, the courts and the public from the misconduct of officers of
the court. Also, disbarment seeks to remove from the Law Profession attorneys who have
disregarded their Lawyer's Oath and thereby proved themselves unfit to continue discharging the
trust and respect given to them as members of the Bar.
The administrative charges against respondent Judge Yu based on grounds that were also grounds
for disciplinary actions against members of the Bar could easily be treated as justifiable disciplinary
initiatives against her as a member of the Bar. This treatment is explained by the fact that her
membership in the Bar was an integral aspect of her qualification for judgeship. Also, her moral and
actual unfitness to remain as a Judge, as found in these cases, reflected her indelible unfitness to
remain as a member of the Bar. At the very least, a Judge like her who disobeyed the basic rules of
judicial conduct should not remain as a member of the Bar because she had thereby also violated
her Lawyer's Oath.
Indeed, respondent Judge Yu's violation of the fundamental tenets of judicial conduct embodied in
the New Code of Judicial Conduct for the Philippine Judiciary would constitute a breach of the
following canons of the Code of Professional Responsibility, to wit:
CANON 1 - A LA WYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND
AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal system.
CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE

DISCHARGE OF THEIR OFFICIAL TASKS.
Rule 6.02 - A lawyer in the government service shall not use his public position to promote or
advance his private interests, nor allow the latter to interfere with his public duties.
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE
COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY
OTHERS.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior
before the Courts.
The Court does not take lightly the ramifications of Judge Yu's misbehavior and misconduct as a
judicial officer. By penalizing her with the supreme penalty of dismissal from the service, she should
not anymore be allowed to remain a member of the Law Profession.
However, this rule of fusing the dismissal of a Judge with disbarment does not in any way dispense
with or set aside the respondent's right to due process. As such, her disbarment as an offshoot of
A.M. No. 02-9-02-SC without requiring her to comment on the disbarment would be violative of her
right to due process. To accord due process to her, therefore, she should first be afforded the
opportunity to defend her professional standing as a lawyer before the Court would determine
whether or not to disbar her.
In her comment, the respondent reiterates her submissions in the Motion for Reconsideration with
Explanation for the Show Cause Order. Considering that we have dismissed her pleadings
altogether for the reasons given earlier, her disbarment is now inevitable.
Section 27, Rule 138 of the Rules of Court reads:
Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. - A member of the
bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to
take before the admission to practice, or for a willful disobedience of any lawful order of a superior
court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to
do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid
agents or brokers, constitutes malpractice.
Accordingly, gross misconduct, violation of the Lawyer's Oath, and willful disobedience of any lawful
order by the Court constitute grounds to disbar an attorney. In the respondent's case, she was
herein found to have committed all of these grounds for disbarment, warranting her immediate
disbarment as a consequence.
We deem it worthwhile to remind that the penalty of disbarment being hereby imposed does not
equate to stripping the respondent of the source of her livelihood. Disbarment is intended to protect
the administration of justice by ensuring that those taking part in it as attorneys should be
competent, honorable and reliable to enable the courts and the clients they serve to rightly repose
their confidence in them.35
Once again, we express our disdain for judges and attorneys who undeservedly think too highly of
themselves, their personal and professional qualifications and qualities at the expense of the nobility
of the Law Profession. It is well to remind the respondent that membership in the Law Profession is
not like that in any ordinary trade. The Law is a noble calling, and only the individuals who are
competent and fit according to the canons and standards set by this Court, the law and the Rules of
Court may be bestowed the privilege to practice it.36
Lastly, every lawyer must pursue only the highest standards in the practice of his calling. The
practice of law is a privilege, and only those adjudged qualified are permitted to do so.37 The
respondent has fallen short of this standard thus meriting her expulsion from the profession.
WHEREFORE, the Court DENIES the Motion for Reconsideration with Explanation for the Show
Cause Order with FINALITY; DISBARS EFFECTIVE IMMEDIATELY respondent ELIZA B.
YU pursuant to A.M. No. 02-9-02-SC for violation of the Lawyer's Oath, the Code of Professional
Responsibility, and the Canons of Professional Ethics; and
ORDERS the striking off of respondent ELIZA B. YU's name from the Roll of Attorneys.
Let copies of this resolution be furnished to: (a) the Office of the Court Administrator for
dissemination to all courts throughout the country for their information and guidance; (b) the
Integrated Bar of the Philippines; and (c) the Office of the Bar Confidant to be appended to the
respondent's personal record as a member of the Bar.
SO ORDERED.
G.R. No. 160792 August 25, 2005
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN
(MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT.
SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV,
PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners,
vs.
GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO
GOLEZ, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September
2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals’
Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza
and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-
Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug
(PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence
Service of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees.
Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez,
who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of
National Defense and National Security Adviser, because they have command responsibility over
Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers,
entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale
apartment complex, located in the business district of Makati City. The soldiers disarmed the security
officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers
publicly renounced their support for the administration and called for the resignation of President
Gloria Macapagal-Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after
several negotiations with government emissaries. The soldiers later defused the explosive devices
they had earlier planted. The soldiers then returned to their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major
Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The
transfer took place while military and civilian authorities were investigating the soldiers’ involvement
in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup d’etat with the Regional
Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood
incident. The government prosecutors accused the soldiers of coup d’etat as defined and penalized
under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was
docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving
custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into
custody the military personnel under their command who took part in the Oakwood incident except
the detained junior officers who were to remain under the custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12
August 2003, the Court issued a Resolution, which resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ
on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the
Court of Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and
decision thereon, after which a REPORT shall be made to this Court within ten (10) days from
promulgation of the decision.3
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to
make a return of the writ and to appear and produce the persons of the detainees before the Court
of Appeals on the scheduled date for hearing and further proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial Court of
Makati City a Motion for Preliminary Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of
the Writ and Answer to the petition and produced the detainees before the Court of Appeals during
the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate
court considered the petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition.
Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the
regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in
accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen.
Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees’ right
to exercise for two hours a day.
The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the
detainees are already charged of coup d’etat before the Regional Trial Court of Makati. Habeas
corpus is unavailing in this case as the detainees’ confinement is under a valid indictment, the
legality of which the detainees and petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail
the legality of detention if there is a deprivation of a constitutional right. However, the appellate court
held that the constitutional rights alleged to have been violated in this case do not directly affect the
detainees’ liberty. The appellate court ruled that the regulation of the detainees’ right to confer with
their counsels is reasonable under the circumstances.
The appellate court declared that while the opening and reading of Trillanes’ letter is an abhorrent
violation of his right to privacy of communication, this does not justify the issuance of a writ
of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject
of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he
made in open court to uphold the visiting hours and the right of the detainees to exercise for two
hours a day. The dispositive portion of the appellate court’s decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent
Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional
rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04
regarding visiting hours and the right of the detainees to exercise for two (2) hours a day.
SO ORDERED.4
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE

SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF

THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF

THE DETAINED JUNIOR OFFICERS’ DETENTION.5
The Ruling of the Court

The petition lacks merit.
Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the Court remanded
the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Court’s
Order had already foreclosed any question on the propriety and merits of their petition.
Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court
referred to the Court of Appeals the duty to inquire into the cause of the junior officers’ detention.
Had the Court ruled for the detainees’ release, the Court would not have referred the hearing of the
petition to the Court of Appeals. The Court would have forthwith released the detainees had the
Court upheld petitioners’ cause.
In a habeas corpus petition, the order to present an individual before the court is a preliminary step
in the hearing of the petition.6 The respondent must produce the person and explain the cause of his
detention.7 However, this order is not a ruling on the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to conduct a factual
hearing was not an affirmation of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the
determination of the propriety of the remedy. If a court finds the alleged cause of the detention
unlawful, then it should issue the writ and release the detainees. In the present case, after hearing
the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating
in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate
court had no jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to
address the detainees’ complaint against the regulations and conditions in the ISAFP Detention
Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a
person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his
liberty.9 If the inquiry reveals that the detention is illegal, the court orders the release of the person. If,
however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use
of habeas corpus is thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11
Nonetheless, case law has expanded the writ’s application to circumstances where there is
deprivation of a person’s constitutional rights. The writ is available where a person continues to be
unlawfully denied of one or more of his constitutional freedoms, where there is denial of due
process, where the restraints are not merely involuntary but are also unnecessary, and where a
deprivation of freedom originally valid has later become arbitrary.12
However, a mere allegation of a violation of one’s constitutional right is not sufficient. The courts will
extend the scope of the writ only if any of the following circumstances is present: (a) there is a
deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no
jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is
void as to the excess.13 Whatever situation the petitioner invokes, the threshold remains high. The
violation of constitutional right must be sufficient to void the entire proceedings.14
Petitioners admit that they do not question the legality of the detention of the detainees. Neither do
they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners
bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing
petitioners as lawyers from seeing the detainees – their clients – any time of the day or night. The
regulation allegedly curtails the detainees’ right to counsel and violates Republic Act No. 7438 ("RA
7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare for the
important hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees’ right
to privacy of communication when the ISAFP officials opened and read the personal letters of
Trillanes and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP
officials violated the detainees’ right against cruel and unusual punishment when the ISAFP officials
prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials
boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already
poor light and ventilation in the detainees’ cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However, the fact that
the detainees are confined makes their rights more limited than those of the public.17 RA 7438, which
specifies the rights of detainees and the duties of detention officers, expressly recognizes the power
of the detention officer to adopt and implement reasonable measures to secure the safety of the
detainee and prevent his escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. – a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family
of a person arrested, detained or under custodial investigation, or any medical doctor or priest or
religious minister or by his counsel, from visiting and conferring privately chosen by him or by any
member of his immediate family with him, or from examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty
of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four
thousand pesos (₱4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial responsibility
over any detainee or prisoner may undertake such reasonable measures as may be necessary
to secure his safety and prevent his escape. (Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client
"at any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same
Section 4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b),
the detention officer has the power to undertake such reasonable measures as may be necessary to
secure the safety of the detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations
governing a detainee’s confinement must be "reasonable measures x x x to secure his safety and
prevent his escape." Thus, the regulations must be reasonably connected to the government’s
objective of securing the safety and preventing the escape of the detainee. The law grants the
detention officer the authority to "undertake such reasonable measures" or regulations.
Petitioners contend that there was an actual prohibition of the detainees’ right to effective
representation when petitioners’ visits were limited by the schedule of visiting hours. Petitioners
assert that the violation of the detainees’ rights entitle them to be released from detention.
Petitioners’ contention does not persuade us. The schedule of visiting hours does not render void
the detainees’ indictment for criminal and military offenses to warrant the detainees’ release from
detention. The ISAFP officials did not deny, but merely regulated, the detainees’ right to counsel.
The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety
and security of all detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be
reasonably related to maintaining security and must not be excessive in achieving that purpose.
Courts will strike down a restriction that is arbitrary and purposeless.19 However, Bell v.
Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in
detention and prison facilities.20 The U.S. Supreme Court commanded the courts to afford
administrators "wide-ranging deference" in implementing policies to maintain institutional security.21
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make
regulations in detention centers allowable: "such reasonable measures as may be necessary to
secure the detainee’s safety and prevent his escape." In the present case, the visiting hours
accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of
securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the detainees still have
face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment
of detainees’ right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and
5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same
hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the
standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission
from the ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient
time to confer with the detainees. The detainees’ right to counsel is not undermined by the
scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,22 petitioners
were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no
point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and the boarding
of the iron grills in their cells with plywood amount to unusual and excessive punishment. This
argument fails to impress us. Bell v. Wolfish pointed out that while a detainee may not be punished
prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes
with a detainee’s desire to live comfortably.24 The fact that the restrictions inherent in detention
intrude into the detainees’ desire to live comfortably does not convert those restrictions into
punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer intent to
punish.26 Courts will also infer intent to punish even if the restriction seems to be related rationally to
the alternative purpose if the restriction appears excessive in relation to that purpose.27 Jail officials
are thus not required to use the least restrictive security measure.28 They must only refrain from
implementing a restriction that appears excessive to the purpose it serves.29
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents concede, that the
"essential objective of pretrial confinement is to insure the detainees’ presence at trial." While this
interest undoubtedly justifies the original decision to confine an individual in some manner, we do not
accept respondents’ argument that the Government’s interest in ensuring a detainee’s presence at
trial is the only objective that may justify restraints and conditions once the decision is lawfully made
to confine a person. "If the government could confine or otherwise infringe the liberty of detainees
only to the extent necessary to ensure their presence at trial, house arrest would in the end be the
only constitutionally justified form of detention." The Government also has legitimate interests that
stem from its need to manage the facility in which the individual is detained. These legitimate
operational concerns may require administrative measures that go beyond those that are, strictly
speaking, necessary to ensure that the detainee shows up at trial. For example, the Government
must be able to take steps to maintain security and order at the institution and make certain no
weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution’s
interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even
if they are discomforting and are restrictions that the detainee would not have experienced had he
been released while awaiting trial. We need not here attempt to detail the precise extent of the
legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is
enough simply to recognize that in addition to ensuring the detainees’ presence at trial, the effective
management of the detention facility once the individual is confined is a valid objective that may
justify imposition of conditions and restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment.30
An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or
"disability," and (2) the purpose of the action is to punish the inmate.31 Punishment also requires that
the harm or disability be significantly greater than, or be independent of, the inherent discomforts of
confinement.32
Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact
visits as this practice was reasonably related to maintaining security. The safety of innocent
individuals will be jeopardized if they are exposed to detainees who while not yet convicted are
awaiting trial for serious, violent offenses and may have prior criminal conviction.34 Contact visits
make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.35 Contact
visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other
contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they could
also potentially be enlisted to help obtain contraband and weapons.37 The security consideration in
the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the
detainees.38
Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the
legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine enunciated in Bell
v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline
jurisdiction over prison matters in deference to administrative expertise.40
In the present case, we cannot infer punishment from the separation of the detainees from their
visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the
detainees from their visitors prevent direct physical contact but still allow the detainees to have
visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not
unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v.
Rutherford. The limitation on the detainees’ physical contacts with visitors is a reasonable, non-
punitive response to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center.
This measure intends to fortify the individual cells and to prevent the detainees from passing on
contraband and weapons from one cell to another. The boarded grills ensure security and prevent
disorder and crime within the facility. The diminished illumination and ventilation are but discomforts
inherent in the fact of detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention
Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and
Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention cells. The
detainees are treated well and given regular meals. The Court of Appeals noted that the cells are
relatively clean and livable compared to the conditions now prevailing in the city and provincial jails,
which are congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from
the soldiers, a suspected New People’s Army ("NPA") member and two suspected Abu Sayyaf
members are detained in the ISAFP Detention Center.
We now pass upon petitioners’ argument that the officials of the ISAFP Detention Center violated the
detainees’ right to privacy when the ISAFP officials opened and read the letters handed by detainees
Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters
were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP
Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizen’s
privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials
opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming and
outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility
and to avert coordinated escapes.41 Even in the absence of statutes specifically allowing prison
authorities from opening and inspecting mail, such practice was upheld based on the principle of
"civil deaths."42 Inmates were deemed to have no right to correspond confidentially with anyone. The
only restriction placed upon prison authorities was that the right of inspection should not be used to
delay unreasonably the communications between the inmate and his lawyer.43
Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials received
respect.44 The confidential correspondences could not be censored.45 The infringement of such
privileged communication was held to be a violation of the inmates’ First Amendment rights.46 A
prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by
the legitimate interests of prison authorities in the administration of the institution.47 Moreover, the risk
is small that attorneys will conspire in plots that threaten prison security.48
American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted
inmates and pre-trial detainees. The case of Palmigiano v. Travisono49 recognized that pre-trial
detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship
of pre-trial detainees’ mail addressed to public officials, courts and counsel was held impermissible.
While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of
pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme
Court held that prison officials could open in the presence of the inmates incoming mail from
attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained
the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail from
attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison
regulation under challenge provided that ‘(a)ll incoming and outgoing mail will be read and
inspected,’ and no exception was made for attorney-prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend
that they may open all letters from attorneys as long as it is done in the presence of the prisoners.
The narrow issue thus presented is whether letters determined or found to be from attorneys may be
opened by prison authorities in the presence of the inmate or whether such mail must be delivered
unopened if normal detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an attorney
before opening it for inspection, a near impossible task of administration would be imposed. We
think it entirely appropriate that the State require any such communications to be specially marked
as originating from an attorney, with his name and address being given, if they are to receive special
treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring
to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that
the letters marked privileged are actually from members of the bar. As to the ability to open the mail
in the presence of inmates, this could in no way constitute censorship, since the mail would not be
read. Neither could it chill such communications, since the inmate’s presence insures that prison
officials will not read the mail. The possibility that contraband will be enclosed in letters, even those
from apparent attorneys, surely warrants prison officials’ opening the letters. We disagree with the
Court of Appeals that this should only be done in ‘appropriate circumstances.’ Since a flexible test,
besides being unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule
whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps
even more, than the Constitution requires.51
In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation
of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many
protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also
clear that imprisonment carries with it the circumscription or loss of many significant rights. These
constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by
the considerations underlying our penal system." The curtailment of certain rights is necessary, as a
practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities,
chief among which is internal security. Of course, these restrictions or retractions also serve,
incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in
addition to correction.53
The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v.
Travisono and made no distinction as to the detainees’ limited right to privacy. State v. Dunn noted
the considerable jurisprudence in the United States holding that inmate mail may be censored for the
furtherance of a substantial government interest such as security or discipline. State v.
Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail
and reading it is also permissible. We quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the
close and continual surveillance of inmates and their cells required to ensure institutional security
and internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy
always yield to what must be considered a paramount interest in institutional security. We believe
that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents
of confinement."
The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has
been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even
greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained
prior to trial may in many cases be individuals who are charged with serious crimes or who have
prior records and may therefore pose a greater risk of escape than convicted inmates.55 Valencia v.
Wiggins56 further held that "it is impractical to draw a line between convicted prisoners and pre-trial
detainees for the purpose of maintaining jail security."
American cases recognize that the unmonitored use of pre-trial detainees’ non-privileged mail poses
a genuine threat to jail security.57 Hence, when a detainee places his letter in an envelope for non-
privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials.58 A
pre-trial detainee has no reasonable expectation of privacy for his incoming mail.59 However,
incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open
and inspect the mail for contraband but could not read the contents without violating the inmates’
right to correspond with his lawyer.60 The inspection of privileged mail is limited to physical
contraband and not to verbal contraband.61
Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees’
letters in the present case violated the detainees’ right to privacy of communication. The letters were
not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the
same purpose as the opening of sealed letters for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential letters between
the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and
Maestrecampo was merely acting as the detainees’ personal courier and not as their counsel when
he received the letters for mailing. In the present case, since the letters were not confidential
communication between the detainees and their lawyers, the officials of the ISAFP Detention
Center could read the letters. If the letters are marked confidential communication between the
detainees and their lawyers, the detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizen’s privacy rights62 is a
guarantee that is available only to the public at large but not to persons who are detained or
imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to
the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-
trial detainees and convicted prisoners have a diminished expectation of privacy rights.
In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on
the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the
guarantees of the Constitution with the legitimate concerns of prison administrators."63 The deferential
review of such regulations stems from the principle that:
[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration.64
The detainees in the present case are junior officers accused of leading 300 soldiers in
committing coup d’etat, a crime punishable with reclusion perpetua.65 The junior officers are not
ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a
civilian building in the heart of the financial district of the country. As members of the military armed
forces, the detainees are subject to the Articles of War.66
Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the
NPA. Thus, we must give the military custodian a wider range of deference in implementing the
regulations in the ISAFP Detention Center. The military custodian is in a better position to know the
security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and
NPA members. Since the appropriate regulations depend largely on the security risks involved, we
should defer to the regulations adopted by the military custodian in the absence of patent
arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners
from petitioning the courts for the redress of grievances. Regulations and conditions in detention and
prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed
by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the
detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is
not the proper mode to question conditions of confinement.67 The writ of habeas corpus will only lie if
what is challenged is the fact or duration of confinement.68
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-
G.R. SP No. 78545.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court
of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer
Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful
struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V.
Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan
Ponce Enrile, who had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie
Television Review and Classification Board as wel as the other government agencies consulted.
General Fidel Ramos also signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out
below:
The Four Day Revolution is a six hour mini-series about People Power—a unique
event in modern history that-made possible the Peaceful revolution in the Philippines
in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created
[four] fictitious characters to trace the revolution from the death of Senator Aquino, to
the Feb revolution and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major
network. Tony reflects the average American attitude to the Phihppinence —once a
colony, now the home of crucially important military bases. Although Tony is aware of
the corruption and of Marcos' megalomania, for him, there appears to be no
alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change.
Through Angle and her relationship with one of the Reform Army Movement Colonels
(a fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of
the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution.
The story incorporates actual documentary footage filmed during the period which we
hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful

plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films
(The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a

deep understanding of the Philippines, who has worked on the research for this
project for some 18 months. Together with Davi Wilhamgon they have developed a
script we believe accurately depicts the complex issues and events that occurred
during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions
in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that made possible
the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented
in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and
utilizing actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of
the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member
of his family in any cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or
visual) should not be made to [him] or any member of his family, much less to any matter purely
personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary
Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case
No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four
Day Revolution". The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his right of privacy.
On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan
Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint
on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss
alleging lack of cause of action as the mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against
the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants,

and all persons and entities employed or under contract with them, including actors,
actresses and members of the production staff and crew as well as all persons and
entities acting on defendants' behalf, to cease and desist from producing and filming
the mini-series entitled 'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu of
plaintiff which nevertheless is based on, or bears rent substantial or marked
resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the
production and any similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever
damages defendants may suffer by reason of the injunction if the Court should finally
decide that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated
21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition
was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari
with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed
as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a
Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order
of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners
to resume producing and filming those portions of the projected mini-series which do not make any
reference to private respondent or his family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a
right of privacy.
The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners'
claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech
and of expression protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the projected mini-series
would constitute an unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would once
more stress that this freedom includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through television. In our day and age,
motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along
with the press, radio and television, motion pictures constitute a principal medium of mass
communication for information, education and entertainment. In Gonzales v. Katigbak, 3 former Chief
Justice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse. Their effect on the perception by our
people of issues and public officials or public figures as well as the pre cultural traits
is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear
dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free expression.
...4
This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech
and of expression. In our community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media facilities commonly require
to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in
our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime

ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right
of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right
of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of
privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The
interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to
privacy in a context which included a claim to freedom of speech and of
expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family
of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a
motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party
for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for
whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men
were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but refused to pay the
stipulated royalties, the Court, through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and
void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that of his mother and the
member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31
LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a
deperson to protect his memory, but the privilege wts for the benefit of the living, to
protect their feelings and to preventa violation of their own rights in the character and
memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being
a public figure ipso facto does not automatically destroy in toto a person's right to
privacy. The right to invade a person's privacy to disseminate public information does
not extend to a fictional or novelized representation of a person, no matter how public
a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner exerted efforts to present a
true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance
in the film because without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the
name of freedom of speech and expression, a right to produce a motion picture biography at least
partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties
to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as
a citizen and as a newspaperman, he had the right to express his thoughts in film on
the public life of Moises Padilla without prior restraint.The right freedom of
expression, indeed, occupies a preferred position in the "hierarchy of civil liberties"
(Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales
v. Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press,
which includes such vehicles of the mass media as radio, television and the movies,
is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of
Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed
consideration of the interplay of interests observable in given situation or type of
situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing
Agreement entered into by petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be applied in respect
of the instant Petitions, the Court believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's
"right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and direct
restraint on the part of the respondent Judge upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any
kind imposed upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent
liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary
Restraining Order one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other
words, no "clear and present danger" of any violation of any right to privacy that private respondent
could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government
that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led
up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it
is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the
history of this countryand as such, must be regarded as having passed into the public domain and
as an appropriate subject for speech and expression and coverage by any form of mass media. The
subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not
relate to the individual life and certainly not to the private life of private respondent Ponce Enrile.
Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least
his immediate family, what we have here is not a film biography, more or less fictionalized, of private
respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon,
the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by
Juan Ponce Enrile in the precipitating and the constituent events of the change of government in
February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in
character. The extent of that intrusion, as this Court understands the synopsis of the proposed film,
may be generally described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened to depict in "The
Four Day Revolution" any part of the private life of private respondent or that of any member of his
family.
4. At all relevant times, during which the momentous events, clearly of public concern, that
petitioners propose to film were taking place, private respondent was what Profs. Prosser and
Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this
category are those who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainment. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions" that
they had sought publicity and consented to it, and so could not complaint when they
received it; that their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who have become legitimate
matters of public interest. On one or another of these grounds, and sometimes all, it
was held that there was no liability when they were given additional publicity, as to
matters legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was
held to arise out of the desire and the right of the public to know what is going on in
the world, and the freedom of the press and other agencies of information to tell
it. "News" includes all events and items of information which are out of the ordinary
hum-drum routine, and which have 'that indefinable quality of information which
arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination
of news, as a glance at any morning newspaper will sufficiently indicate. It includes
homicide and othe crimes, arrests and police raides, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to information
or education, or even entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human activity in general, as
well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal
actor in the culminating events of the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of the peaceful revolution that fails to
make reference to the role played by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple private citizenship. he continues to be a
"public figure." After a successful political campaign during which his participation in the EDSA
Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very
public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional
freedom of speech and of expression and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truthful and historical in its presentation
of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the
participation of private respondent in the EDSA Revolution. 16 There must, further, be no
presentation of the private life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what
Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern."
18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private
respondent in the EDSA Revolution to those events which are directly and reasonably related to
the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be
regarded as unreasonable and actionable. Such portrayal may be carried out even without a license
from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a
Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan
vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion
for Pictures Production" enjoining him and his production company from further filimg any scene of
the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and
paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case
No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to
the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the
complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent
herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately
engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that on Honasan in the construction of their legal basis
of the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same tortious act of
petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases
on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413
are not identical.
For reasons that by now have become clear, it is not necessary for the Court to deal with the
question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum
shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan
who, having refused to subject himself to the legal processes of the Republic and having become
once again in fugitive from justice, must be deemed to have forfeited any right the might have had to
protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited
Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by
enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate
Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the
exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and
accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988
and any Preliminary Injunction that may have been issued by him.
SO ORDERED.
G.R. No. 181881 October 18, 2011
BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D.
UNITE AND THE CIVIL SERVICE COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee who was
charged administratively and eventually dismissed from the service. The employee’s personal files
stored in the computer were used by the government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside
the Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner
Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the
service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also
the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan
Muna Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent

CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a
courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following
office practice in which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov’t employee having a
pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4 office. He is
the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue.
Please investigate this anomaly because our perception of your clean and good office is being
tainted.
Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to
back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal
divisions."4 After some briefing, the team proceeded at once to the CSC-ROIV office at Panay
Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of
the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert
Unite (Director Unite) of Chairperson David’s directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division
(LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the
head of LSD, who were both out of the office at the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the CSC Chair. The text messages received by
petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed about this.
"We can’t do anything about … it … it’s a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
via mms"5
Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At
around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the
computers in the PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The contents of the diskettes were examined by
the CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being used by the petitioner, numbering
about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in
the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause
Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit
his explanation or counter-affidavit within five days from notice.
Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made
the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the
CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft
pleadings are for and on behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared
further demonstrates that such person is not merely engaged in an isolated practice but pursues it
with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control and
disposition.9
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering"
for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition"
when they unlawfully copied and printed personal files in his computer, and subsequently asking him
to submit his comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the letter dated
January 8, 2007 in which he informed Director Castillo that the files in his computer were his
personal files and those of his sister, relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as these would violate his constitutional
right to privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous letter,
petitioner argued that it is not actionable as it failed to comply with the requirements of a formal
complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of
the illegal search, the files/documents copied from his computer without his consent is thus
inadmissible as evidence, being "fruits of a poisonous tree."10
On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for
Public Officials and Employees). Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension
effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No.
070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that
he never aided any people with pending cases at the CSC and alleged that those files found in his
computer were prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship. Attached to the motion
were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s
CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that petitioner
had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the
prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director
Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the
lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19,
2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioner’s
answer.
On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of
discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner
lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for
the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing
conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that
the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle
the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the investigation proceedings should be held in
abeyance pending the resolution of his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsel’s non-appearance.17 This prompted petitioner to file another motion in
the CA, to cite the respondents, including the hearing officer, in indirect contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside
the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with
dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded ex
parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service
examinations.21
On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible misconduct committed by said employee
and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the
United States Supreme Court, and cited the leading case of O’Connor v. Ortega22 as authority for the
view that government agencies, in their capacity as employers, rather than law enforcers, could
validly conduct search and seizure in the governmental workplace without meeting the "probable
cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L. Simons23 which declared that the federal agency’s computer
use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode
the respondent’s legitimate expectation of privacy in the office in which the computer was installed,
still, the warrantless search of the employee’s office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared that a CSC employee cannot
assert any privacy right to a computer assigned to him. Even assuming that there was no such
administrative policy, the CSC was of the view that the search of petitioner’s computer successfully
passed the test of reasonableness for warrantless searches in the workplace as enunciated in the
aforecited authorities. The CSC stressed that it pursued the search in its capacity as government
employer and that it was undertaken in connection with an investigation involving work-related
misconduct, which exempts it from the warrant requirement under the Constitution. With the matter
of admissibility of the evidence having been resolved, the CSC then ruled that the totality of
evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave
infractions justified petitioner’s dismissal from the service with all its accessory penalties.
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his
motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner
was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-
finding investigation was conducted and the results thereof yielded a prima facie case against him;
(2) it could not be said that in ordering the back-up of files in petitioner’s computer and later
confiscating the same, Chairperson David had encroached on the authority of a judge in view of the
CSC computer policy declaring the computers as government property and that employee-users
thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on
the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the
formal investigation as there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that –
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED

SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES
PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE

ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS
OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON
THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26
Squarely raised by the petitioner is the legality of the search conducted on his office computer and
the copying of his personal files without his knowledge and consent, alleged as a transgression on
his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :
Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.30
In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to recognize as reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union officials, even as the latter
or their guests could enter the office. The Court thus "recognized that employees may have a
reasonable expectation of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was addressed in the 1987
case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency program, sexual harassment of female
hospital employees and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing cabinets. In that
case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely
because they work for the government instead of a private employer."35 A plurality of four Justices
concurred that the correct analysis has two steps: first, because "some government offices may be
so open to fellow employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether an employee’s
Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy
expectation, an employer’s intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by the standard
of reasonableness under all the circumstances."36
On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:
x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal invitees. Instead, in many cases
offices are continually entered by fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put, it is the nature of government
offices that others – such as fellow employees, supervisors, consensual visitors, and the general
public – may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable. x x x Given the great variety of work
environments in the public sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted;
emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court declared that Dr.
Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed
"an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other
employees, kept personal correspondence and other private items in his own office while those
work-related files (on physicians in residency training) were stored outside his office, and there being
no evidence that the hospital had established any reasonable regulation or policy discouraging
employees from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not otherwise
exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his
desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the O’Connor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under
the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
reasonable depends on the context within which a search takes place. x x x Thus, we must
determine the appropriate standard of reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In the case of
searches conducted by a public employer, we must balance the invasion of the employees’
legitimate expectations of privacy against the government’s need for supervision, control,
and the efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other circumstances in which we have
required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant requirement
would conflict with the "common-sense realization that government offices could not function if every
employment decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little meaning for a routine inventory conducted by
public employers for the purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other
work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their misconduct or incompetence to both
the agency and the public interest can be severe. In contrast to law enforcement officials, therefore,
public employers are not enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper and efficient
manner. In our view, therefore, a probable cause requirement for searches of the type at issue
here would impose intolerable burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the agency’s work,
and ultimately to the public interest. x x x
xxxx
In sum, we conclude that the "special needs, beyond the normal need for law enforcement
make the…probable-cause requirement impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard
of reasonableness will neither unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the constitutionally
protected privacy interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances which justified
the interference in the first place,’" x x x
Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception"
when there are reasonable grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of …the nature of the
[misconduct]." x x x39 (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that
was undertaken, the case was remanded to said court for the determination of the justification for the
search and seizure, and evaluation of the reasonableness of both the inception of the search and its
scope.
In O’Connor the Court recognized that "special needs" authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement, which are
related to law enforcement.40
O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
workplace. One of these cases involved a government employer’s search of an office computer,
United States v. Mark L. Simons41 where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which he did not share with anyone, and a
computer with Internet access. The agency had instituted a policy on computer use stating that
employees were to use the Internet for official government business only and that accessing
unlawful material was specifically prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the user’s Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the agency’s computer
network, upon initial discovery of prohibited internet activity originating from Simons’ computer, to
conduct a remote monitoring and examination of Simons’ computer. After confirming that Simons
had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of
Simon’s computer were copied from a remote work station. Days later, the contractor’s
representative finally entered Simon’s office, removed the original hard drive on Simon’s computer,
replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons’ office in the evening when Simons was not around. The
search team copied the contents of Simons’ computer; computer diskettes found in Simons’ desk
drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer violated his Fourth Amendment
rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’
computer and office did not violate his Fourth Amendment rights and the first search warrant was
valid. It held that the search remains valid under the O’Connor exception to the warrant requirement
because evidence of the crime was discovered in the course of an otherwise proper administrative
inspection. Simons’ violation of the agency’s Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests of an employer.
The warrantless entry into Simons’ office was reasonable under the Fourth Amendment standard
announced in O’Connor because at the inception of the search, the employer had "reasonable
grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was
already aware that Simons had misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was reasonably related to the objective of the
search, and the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard
to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that
he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in
order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation
of privacy is one that society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth
Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record or fruits of
his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would
"audit, inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all
websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed
employees on notice that they could not reasonably expect that their Internet activity would be
private. Therefore, regardless of whether Simons subjectively believed that the files he transferred
from the Internet were private, such a belief was not objectively reasonable after FBIS notified him
that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not violate the Fourth
Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate expectation of privacy in his office.
x x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons’ workplace may have diminished his legitimate privacy expectations.
However, there is no evidence in the record of any workplace practices, procedures, or regulations
that had such an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy – equipment that the employer knew contained evidence of
crimes committed by the employee in the employee’s office. This situation may be contrasted with
one in which the criminal acts of a government employee were unrelated to his employment. Here,
there was a conjunction of the conduct that violated the employer’s policy and the conduct that
violated the criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard
drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis
supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor’s office with certain offenses, have also
recognized the fact that there may be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees’ privacy interest in an office is to a large extent circumscribed by the company’s work
policies, the collective bargaining agreement, if any, entered into by management and the bargaining
unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate enclosed office which he did not share
with anyone, or that his office was always locked and not open to other employees or visitors.
Neither did he allege that he used passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits that being in the public assistance
office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and
even unknown people, whom he even allowed to use his computer which to him seemed a trivial
request. He described his office as "full of people, his friends, unknown people" and that in the past
22 years he had been discharging his functions at the PALD, he is "personally assisting incoming
clients, receiving documents, drafting cases on appeals, in charge of accomplishment report,
Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service,
and hardly had anytime for himself alone, that in fact he stays in the office as a paying
customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer
as he claims, such is negated by the presence of policy regulating the use of office computers, as in
Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission and may be
used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall not have
an expectation of privacy in anything they create, store, send, or receive on the computer
system.
The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor
the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a personal property

or for the exclusive use of a User to whom a memorandum of receipt (MR) has been
issued. It can be shared or operated by other users. However, he is accountable therefor and
must insure its care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be printed,
stored online, or given to others. Users shall be responsible for all transactions made using
their passwords. No User may access the computer system with another User’s password or
account.
13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access to all materials stored on
its networked computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall authorize the
application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and
that the CSC may monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.
One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy
policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee
has not shown that he had a reasonable expectation of privacy in his computer files where the
university’s computer policy, the computer user is informed not to expect privacy if the university has
a legitimate reason to conduct a search. The user is specifically told that computer files, including e-
mail, can be searched when the university is responding to a discovery request in the course of
litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related materials.49
As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.
The search of petitioner’s computer files was conducted in connection with investigation of work-
related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV
(CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties
with pending cases, all done during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and details sufficient
to warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it
was held that where a government agency’s computer use policy prohibited electronic messages
with pornographic content and in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the use and contents of his
office computer, and therefore evidence found during warrantless search of the computer was
admissible in prosecution for child pornography. In that case, the defendant employee’s computer
hard drive was first remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed non-work-related e-
mail messages throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of the agency, his
computer tower and floppy disks were taken and examined. A formal administrative investigation
ensued and later search warrants were secured by the police department. The initial remote search
of the hard drive of petitioner’s computer, as well as the subsequent warrantless searches was held
as valid under the O’Connor ruling that a public employer can investigate work-related misconduct
so long as any search is justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place.52
Under the facts obtaining, the search conducted on petitioner’s computer was justified at its
inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by O’Connor:
Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in connection with an investigation
involving a work-related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that a certain
division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the
practice of "lawyering" for parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in
the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be actually
impartial but must be seen to be so, otherwise the general public would not have any trust and
confidence in it.
Considering the damaging nature of the accusation, the Commission had to act fast, if only to
arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in the
concerned regional office. That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they
could easily be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files
from his computer.
All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed admissible.53
Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III
of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O’Connor and Simons are not relevant
because the present case does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioner’s computer was justified there being reasonable ground for
suspecting that the files stored therein would yield incriminating evidence relevant to the
investigation being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless requirement
in administrative searches defined in O’Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales)
who was investigated on the basis of an anonymous letter alleging that he was consuming his
working hours filing and attending to personal cases, using office supplies, equipment and utilities.
The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty.
Morales’ personal computer and print two documents stored in its hard drive, which turned out to be
two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another
lawyer. Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered
released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to support the
charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty. Morales, along with other court
personnel also charged in the same case. The OCA recommended that Atty. Morales should be
found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen
short of the exacting standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that
they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer, hence government property the
use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner
with the item seized (office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use
Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office
computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the CSC
was correct in finding the petitioner guilty of the charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded
not only respect but even finality if such findings are supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a substantial number of drafts of legal
pleadings and documents stored in his office computer, as well as the sworn affidavits and
testimonies of the witnesses it presented during the formal investigation. According to the CSC,
these documents were confirmed to be similar or exactly the same content-wise with those on the
case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and duly
furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful under the circumstances. We hold that the CSC’s
factual finding regarding the authorship of the subject pleadings and misuse of the office computer is
well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the
author thereof knowingly and willingly participated in the promotion or advancement of the interests
of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved
documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an
inference that the preparation or drafting of the legal pleadings was pursued with less than a
laudable motivation. Whoever was responsible for these documents was simply doing the same for
the money – a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written
copy of one of the pleadings found in the case records lying on the table of the respondent. This was
the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her
entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity with Pollo and would have known
if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty.
Solosa himself was never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private
joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he
had something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II – Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the
files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter --
as part of the disciplining authority’s own fact-finding investigation and information-gathering -- found
a prima facie case against the petitioner who was then directed to file his comment. As this Court
held in Civil Service Commission v. Court of Appeals57 --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II
of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by
the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said memorandum
order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission
Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the
Commission En Banc at the time saw no need to issue a Resolution for the purpose and further
because the CUP being for internal use of the Commission, the practice had been to issue a
memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or
which regulates only the personnel of the CSC and not the public, the CUP need not be published
prior to its effectivity.59
In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling
that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing
rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007
and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
G.R. No. 179736 June 26, 2013
SPOUSES BILL AND VICTORIA HING, Petitioners,

vs.
ALEXANDER CHOACHUY, SR. and ALLAN CHOACHUY, Respondents.
DECISION
DEL CASTILLO, J.:
"The concept of liberty would be emasculated if it does not likewise compel respect for one's
personality as a unique individual whose claim to privacy and non-interference demands respect."1
This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the July 10, 2007
Decision3 and the September 11, 2007 Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP
No. 01473.
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional Trial Court
(RTC) of Mandaue City a Complaint5 for Injunction and Damages with prayer for issuance of a Writ
of Preliminary Mandatory Injunction/Temporary Restraining Order (TRO), docketed as Civil Case
MAN-5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr. and Allan
Choachuy.
Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-B) covered by
Transfer Certificate of Title (TCT) No. 42817 situated in Barangay Basak, City of Mandaue,
Cebu;6 that respondents are the owners of Aldo Development & Resources, Inc. (Aldo) located at
Lots 1901 and 1900-C, adjacent to the property of petitioners;7 that respondents constructed an
auto-repair shop building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a
case against petitioners for Injunction and Damages with Writ of Preliminary Injunction/TRO,
docketed as Civil Case No. MAN-5125;8 that in that case, Aldo claimed that petitioners were
constructing a fence without a valid permit and that the said construction would destroy the wall of its
building, which is adjacent to petitioners’ property;9 that the court, in that case, denied Aldo’s
application for preliminary injunction for failure to substantiate its allegations;10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up and installed on the
building of Aldo Goodyear Servitec two video surveillance cameras facing petitioners’ property;11 that
respondents, through their employees and without the consent of petitioners, also took pictures of
petitioners’ on-going construction;12 and that the acts of respondents violate petitioners’ right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove the video surveillance
cameras and enjoined from conducting illegal surveillance.14
In their Answer with Counterclaim,15 respondents claimed that they did not install the video
surveillance cameras,16 nor did they order their employees to take pictures of petitioners’
construction.17 They also clarified that they are not the owners of Aldo but are mere stockholders.18
Ruling of the Regional Trial Court
On October 18, 2005, the RTC issued an Order19 granting the application for a TRO. The dispositive
portion of the said Order reads:
WHEREFORE, the application for a Temporary Restraining Order or a Writ of Preliminary Injunction
is granted. Upon the filing and approval of a bond by petitioners, which the Court sets at ₱50,000.00,
let a Writ of Preliminary Injunction issue against the respondents Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately remove the revolving camera that they installed
at the left side of their building overlooking the side of petitioners’ lot and to transfer and operate it
elsewhere at the back where petitioners’ property can no longer be viewed within a distance of about
2-3 meters from the left corner of Aldo Servitec, facing the road.
IT IS SO ORDERED.20
Respondents moved for a reconsideration21 but the RTC denied the same in its Order22 dated
February 6, 2006.23 Thus:
WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of merit. Issue a Writ of
Preliminary Injunction in consonance with the Order dated 18 October 2005.
IT IS SO ORDERED.24
Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of the Rules of
Court with application for a TRO and/or Writ of Preliminary Injunction.
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision26 granting the Petition for Certiorari. The CA ruled that
the Writ of Preliminary Injunction was issued with grave abuse of discretion because petitioners
failed to show a clear and unmistakable right to an injunctive writ.27 The CA explained that the right
to privacy of residence under Article 26(1) of the Civil Code was not violated since the property
subject of the controversy is not used as a residence.28 The CA alsosaid that since respondents are
not the owners of the building, they could not have installed video surveillance cameras.29 They are
mere stockholders of Aldo, which has a separate juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING

the petition filed in this case. The assailed orders dated October 18, 2005 and February 6, 2006
issued by the respondent judge are hereby ANNULLED and SET ASIDE.
SO ORDERED.32
Issues
Hence, this recourse by petitioners arguing that:
I.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET ASIDE THE
ORDERS OF THE RTC DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006 HOLDING THAT
THEY WERE ISSUED WITH GRAVE ABUSE OF DISCRETION.
II.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT PETITIONER
SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION ON THE
GROUND THAT THERE IS NO VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO
PRIVACY DESPITE THE FACTUAL FINDINGS OF THE RTC, WHICH RESPONDENTS
CHOACHUY FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED SURVEILLANCE
CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF
PETITIONER SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.
III.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE

OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO SUE
RESPONDENTS CHOACHUY CONSTITUTES A PURPORTEDLY UNWARRANTED PIERCING
OF THE CORPORATE VEIL.
IV.
THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS

FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION FOR
RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENTS CHOACHUY AND GAVE X X
X THEM DUE COURSE AND CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right to privacy, and
(2) whether respondents are the proper parties to this suit.
Petitioners’ Arguments
Petitioners insist that they are entitled to the issuance of a Writ of Preliminary Injunction because
respondents’ installation of a stationary camera directly facing petitioners’ property and a revolving
camera covering a significant portion of the same property constitutes a violation of petitioners’ right
to privacy.34 Petitioners cite Article 26(1) of the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains to the privacy of another’s residence,
petitioners opine that it includes business offices, citing Professor Arturo M. Tolentino.36 Thus, even
assuming arguendo that petitioners’ property is used for business, it is still covered by the said
provision.37
As to whether respondents are the proper parties to implead in this case, petitioners claim that
respondents and Aldo are one and the same, and that respondents only want to hide behind Aldo’s
corporate fiction.38 They point out that if respondents are not the real owners of the building, where
the video surveillance cameras were installed, then they had no business consenting to the ocular
inspection conducted by the court.39
Respondents’ Arguments
Respondents, on the other hand, echo the ruling of the CA that petitioners cannot invoke their right
to privacy since the property involved is not used as a residence.40 Respondents maintain that they
had nothing to do with the installation of the video surveillance cameras as these were installed by
Aldo, the registered owner of the building,41 as additional security for its building.42 Hence, they were
wrongfully impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our Constitution44 and in our laws. It is defined as "the right to be
free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in
such a way as to cause humiliation to a person’s ordinary sensibilities."45 It is the right of an
individual "to be free from unwarranted publicity, or to live without unwarranted interference by the
public in matters in which the public is not necessarily concerned."46 Simply put, the right to privacy is
"the right to be let alone."47
The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s
abuse of power. In this regard, the State recognizes the right of the people to be secure in their
houses. No one, not even the State, except "in case of overriding social need and then only under
the stringent procedural safeguards," can disturb them in the privacy of their homes.48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
where the public are excluded
therefrom and only certain individuals
are allowed to enter.
Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to privacy and
provides a legal remedy against abuses that may be committed against him by other individuals. It
states:
Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another’s residence;
xxxx
This provision recognizes that a man’s house is his castle, where his right to privacy cannot be
denied or even restricted by others. It includes "any act of intrusion into, peeping or peering
inquisitively into the residence of another without the consent of the latter."49 The phrase "prying into
the privacy of another’s residence," however, does not mean that only the residence is entitled to
privacy. As elucidated by Civil law expert Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy of another’s residence." This does not mean,
however, that only the residence is entitled to privacy, because the law covers also "similar acts." A
business office is entitled to the same privacy when the public is excluded therefrom and only such
individuals as are allowed to enter may come in. x x x50 (Emphasis supplied)
Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not be confined to
his house or residence as it may extend to places where he has the right to exclude the public or
deny them access. The phrase "prying into the privacy of another’s residence," therefore, covers
places, locations, or even situations which an individual considers as private. And as long as his
right is recognized by society, other individuals may not infringe on his right to privacy. The CA,
therefore, erred in limiting the application of Article 26(1) of the Civil Code only to residences.
The "reasonable expectation of

privacy" test is used to determine
whether there is a violation of the right
to privacy.
In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable
expectation of privacy" test. This test determines whether a person has a reasonable expectation of
privacy and whether the expectation has been violated.51 In Ople v. Torres,52 we enunciated that "the
reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable." Customs, community norms, and practices may, therefore, limit
or extend an individual’s "reasonable expectation of privacy."53 Hence, the reasonableness of a
person’s expectation of privacy must be determined on a case-to-case basis since it depends on the
factual circumstances surrounding the case.54
In this day and age, video surveillance cameras are installed practically everywhere for the
protection and safety of everyone. The installation of these cameras, however, should not cover
places where there is reasonable expectation of privacy, unless the consent of the individual, whose
right to privacy would be affected, was obtained. Nor should these cameras be used to pry into the
privacy of another’s residence or business office as it would be no different from eavesdropping,
which is a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for Preliminary Injunction, ruled that:
After careful consideration, there is basis to grant the application for a temporary restraining order.
The operation by respondents of a revolving camera, even if it were mounted on their building,
violated the right of privacy of petitioners, who are the owners of the adjacent lot. The camera does
not only focus on respondents’ property or the roof of the factory at the back (Aldo Development and
Resources, Inc.) but it actually spans through a good portion of the land of petitioners.
Based on the ocular inspection, the Court understands why petitioner Hing was so unyielding in
asserting that the revolving camera was set up deliberately to monitor the on[-]going construction in
his property. The monitor showed only a portion of the roof of the factory of Aldo. If the purpose of
respondents in setting up a camera at the back is to secure the building and factory premises, then
the camera should revolve only towards their properties at the back. Respondents’ camera cannot
be made to extend the view to petitioners’ lot. To allow the respondents to do that over the objection
of the petitioners would violate the right of petitioners as property owners. "The owner of a thing
cannot make use thereof in such a manner as to injure the rights of a third person."55
The RTC, thus, considered that petitioners have a "reasonable expectation of privacy" in their
property, whether they use it as a business office or as a residence and that the installation of video
surveillance cameras directly facing petitioners’ property or covering a significant portion thereof,
without their consent, is a clear violation of their right to privacy. As we see then, the issuance of a
preliminary injunction was justified. We need not belabor that the issuance of a preliminary injunction
is discretionary on the part of the court taking cognizance of the case and should not be interfered
with, unless there is grave abuse of discretion committed by the court.56 Here, there is no indication
of any grave abuse of discretion. Hence, the CA erred in finding that petitioners are not entitled to an
injunctive writ.
This brings us to the next question: whether respondents are the proper parties to this suit.
A real party defendant is one who has a

correlative legal obligation to redress a
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands to be benefited or

injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of the
real party-in-interest.
A real party defendant is "one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant’s act or omission which had violated the legal right of the
former."57
In ruling that respondents are not the proper parties, the CA reasoned that since they do not own the
building, they could not have installed the video surveillance cameras.58 Such reasoning, however, is
erroneous. The fact that respondents are not the registered owners of the building does not
automatically mean that they did not cause the installation of the video surveillance cameras.
In their Complaint, petitioners claimed that respondents installed the video surveillance cameras in
order to fish for evidence, which could be used against petitioners in another case.59 During the
hearing of the application for Preliminary Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately broached his concerns but they did not
seem to care,60 and thus, he reported the matter to the barangay for mediation, and eventually, filed
a Complaint against respondents before the RTC.61 He also admitted that as early as 1998 there has
already been a dispute between his family and the Choachuy family concerning the boundaries of
their respective properties.62 With these factual circumstances in mind, we believe that respondents
are the proper parties to be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from its stockholders,
records show that it is a family-owned corporation managed by the Choachuy family.63
Also quite telling is the fact that respondents, notwithstanding their claim that they are not owners of
the building, allowed the court to enter the compound of Aldo and conduct an ocular inspection. The
counsel for respondents even toured Judge Marilyn Lagura-Yap inside the building and answered all
her questions regarding the set-up and installation of the video surveillance cameras.64 And when
respondents moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of the
arguments they raised is that Aldo would suffer damages if the video surveillance cameras are
removed and transferred.65 Noticeably, in these instances, the personalities of respondents and Aldo
seem to merge.
All these taken together lead us to the inevitable conclusion that respondents are merely using the
corporate fiction of Aldo as a shield to protect themselves from this suit. In view of the foregoing, we
find that respondents are the proper parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007 and the
Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP No. 01473 are
hereby REVERSED and SET ASIDE. The Orders dated October 18,2005 and February 6, 200[6] of
Branch 28 of the Regional Trial Court of Mandaue City in Civil Case No. MAN-5223 are hereby
REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is an equally
powerful desire. Thus each individual is continually engaged in a personal adjustment process in
which he balances the desire for privacy with the desire for disclosure and communication of himself
to others, in light of the environmental conditions and social norms set by the society in which he
lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to
Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data."
Petitioners herein assail the July 27, 2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu
City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the
period material, graduating high school students at St. Theresa's College (STC), Cebu City.
Sometime in January 2012, while changing into their swimsuits for a beach party they were about to
attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in
their undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high
school department, learned from her students that some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed only in brassieres. Escudero then asked her
students if they knew who the girls in the photos are. In turn, they readily identified Julia, Julienne,
and Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal Facebook
accounts and showed her photos of the identified students, which include: (a) Julia and Julienne
drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets
of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. What is
more, Escudero’s students claimed that there were times when access to or the availability of the
identified students’ photos was not confined to the girls’ Facebook friends,4 but were, in fact,
viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page,
showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action.
Thereafter, following an investigation, STC found the identified students to have deported
themselves in a manner proscribed by the school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually

suggestive messages, language or symbols; and 6. Posing and uploading pictures on the
Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question,
reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school
principal and ICM6 Directress. They claimed that during the meeting, they were castigated and
verbally abused by the STC officials present in the conference, including Assistant Principal
Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their
parents the following day that, as part of their penalty, they are barred from joining the
commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as
Civil Case No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined from implementing
the sanction that precluded Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as
an intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from
participating in the graduation rites, arguing that, on the date of the commencement exercises, its
adverted motion for reconsideration on the issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data,
docketed as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They,
thus, have a reasonable expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of
laws that safeguard the right to privacy. Corollarily, respondents knew or ought to have
known that the girls, whose privacy has been invaded, are the victims in this case, and not
the offenders. Worse, after viewing the photos, the minors were called "immoral" and were
punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced
without their consent. Escudero, however, violated their rights by saving digital copies of the
photos and by subsequently showing them to STC’s officials. Thus, the Facebook accounts
of petitioners’ children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STC’s Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with Civil Case
No. CEB-38594. To petitioners, the interplay of the foregoing constitutes an invasion of their
children’s privacy and, thus, prayed that: (a) a writ of habeas databe issued; (b) respondents
be ordered to surrender and deposit with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved or stored, reproduced,
spread and used, to have been illegally obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012,
issued the writ of habeas data. Through the same Order, herein respondents were directed to file
their verified written return, together with the supporting affidavits, within five (5) working days from
service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified written return, laying
down the following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties
to file the petition; (b) petitioners are engaging in forum shopping; (c) the instant case is not one
where a writ of habeas data may issue;and (d) there can be no violation of their right to privacy as
there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The
dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the
minors’ right to privacy, one of the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quoheld that the photos, having been uploaded on Facebook without
restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that is, the implementation
of the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the
Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be
issued given the factual milieu. Crucial in resolving the controversy, however, is the pivotal point of
whether or not there was indeed an actual or threatened violation of the right to privacy in the life,
liberty, or security of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.11 It is an independent
and summary remedy designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order
to achieve unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure
designed to safeguard individual freedom from abuse in the information age."13 The writ, however,
will not issue on the basis merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus between the right to privacy on the
one hand, and the right to life, liberty or security on the other.14 Thus, the existence of a person’s
right to informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are indispensable
before the privilege of the writ may be extended.15
Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)––(1) that it facilitates and promotes
real-time interaction among millions, if not billions, of users, sans the spatial barriers,16 bridging the
gap created by physical space; and (2) that any information uploaded in OSNs leavesan indelible
trace in the provider’s databases, which are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before addressing this point, We must first
resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the
purpose of complementing the Writ of Amparoin cases of extralegal killings and enforced
disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children
and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth
civil degreeof consanguinity or affinity, in default of those mentioned in the preceding
paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal
killings or enforced disappearances, the above underscored portion of Section 2, reflecting a
variance of habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its applicability to extralegal killings and enforced
disappearances only. In fact, the annotations to the Rule preparedby the Committee on the Revision
of the Rules of Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo,
pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s
right to privacy, more specifically the right to informational privacy. The remedies against the
violation of such right can include the updating, rectification, suppression or destruction of the
database or information or files in possession or in control of respondents.18 (emphasis Ours) Clearly
then, the privilege of the Writ of Habeas Datamay also be availed of in cases outside of extralegal
killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the businessof gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the aggrieved
party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas
data is a protection against unlawful acts or omissions of public officials and of private individuals or
entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To "engage" means
"to do or take part in something."19 It does not necessarily mean that the activity must be done in
pursuit of a business. What matters is that the person or entity must be gathering, collecting or
storing said data or information about the aggrieved party or his or her family. Whether such
undertaking carries the element of regularity, as when one pursues a business, and is in the nature
of a personal endeavour, for any other reason or even for no reason at all, is immaterial and such
will not prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a
very small group, i.e., private persons and entities whose business is data gathering and storage,
and in the process decreasing the effectiveness of the writ asan instrument designed to protect a
right which is easily violated in view of rapid advancements in the information and communications
technology––a right which a great majority of the users of technology themselves are not capable of
protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological advancements having
an influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S.
Puno’s speech, The Common Right to Privacy,20 where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy;21 (2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the right to informational privacy––
usually defined as the right of individuals to control information about themselves.23
With the availability of numerous avenues for information gathering and data sharing nowadays, not
to mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that
every individual’s right to control said flow of information should be protected and that each
individual should have at least a reasonable expectation of privacy in cyberspace. Several
commentators regarding privacy and social networking sites, however, all agree that given the
millions of OSN users, "[i]n this [Social Networking] environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial remedies that
would allow a summary hearing of the unlawful use of data or information and to remedy possible
violations of the right to privacy.25 In the same vein, the South African High Court, in its Decision in
the landmark case, H v. W,26 promulgated on January30, 2013, recognized that "[t]he law has to take
into account the changing realities not only technologically but also socially or else it will lose
credibility in the eyes of the people. x x x It is imperative that the courts respond appropriately to
changing times, acting cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in effect, recognized that,
generally speaking, having an expectation of informational privacy is not necessarily incompatible
with engaging in cyberspace activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind
that informational privacy involves personal information. At the same time, the very purpose of OSNs
is socializing––sharing a myriad of information,27 some of which would have otherwise remained
personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected
to other members of the same or different social media platform through the sharing of statuses,
photos, videos, among others, depending on the services provided by the site. It is akin to having a
room filled with millions of personal bulletin boards or "walls," the contents of which are under the
control of each and every user. In his or her bulletin board, a user/owner can post anything––from
text, to pictures, to music and videos––access to which would depend on whether he or she allows
one, some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites, includingthe one
involved in the case at bar, www.facebook.com (Facebook), which, according to its developers,
people use "to stay connected with friends and family, to discover what’s going on in the world, and
to share and express what matters to them."28
Facebook connections are established through the process of "friending" another user. By sending a
"friend request," the user invites another to connect their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once the request is accepted, the link is established
and both users are permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the accessibility of a user’s profile31 as well as information
uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this ability of the users
to "customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy settings are not
foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos),
posted on his or her personal bulletin or "wall," except for the user’sprofile picture and ID, by
selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the
photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden
or limit the visibility of his or her specific profile content, statuses, and photos, among others, from
another user’s point of view. In other words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice as to "when and to what extent to disclose
facts about [themselves] – and to put others in the position of receiving such confidences."34 Ideally,
the selected setting will be based on one’s desire to interact with others, coupled with the opposing
need to withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users
can view that user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable expectation of
privacy in Facebook would, in context, be correct. However, such is not the case. It is through the
availability of said privacy tools that many OSN users are said to have a subjective expectation that
only those to whomthey grant access to their profile will view the information they post or upload
thereto.35
This, however, does not mean thatany Facebook user automatically has a protected expectation of
privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that
said user, in this case the children of petitioners,manifest the intention to keepcertain posts private,
through the employment of measures to prevent access thereto or to limit its visibility.36 And this
intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other
words, utilization of these privacy tools is the manifestation,in cyber world, of the user’s invocation of
his or her right to informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or
her post orprofile detail should not be denied the informational privacy right which necessarily
accompanies said choice.38 Otherwise, using these privacy tools would be a feckless exercise, such
that if, for instance, a user uploads a photo or any personal information to his or her Facebook page
and sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view
it, said photo would still be deemed public by the courts as if the user never chose to limit the photo’s
visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said photo or information
within the confines of his or her private space.
We must now determine the extent that the images in question were visible to other Facebook users
and whether the disclosure was confidential in nature. In other words, did the minors limit the
disclosure of the photos such that the images were kept within their zones of privacy? This
determination is necessary in resolving the issue of whether the minors carved out a zone of privacy
when the photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited since their profiles
were not open to public viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without their knowledge and
consent. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were
only viewable by the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of
girls cladin brassieres. This student [sic] of mine informed me that these are senior high school
[students] of STC, who are their friends in [F]acebook. x x x They then said [that] there are still many
other photos posted on the Facebook accounts of these girls. At the computer lab, these students
then logged into their Facebook account [sic], and accessed from there the various photographs x x
x. They even told me that there had been times when these photos were ‘public’ i.e., not confined to
their friends in Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to
question the students’ act of showing the photos to Tigol disproves their allegation that the photos
were viewable only by the five of them. Without any evidence to corroborate their statement that the
images were visible only to the five of them, and without their challenging Escudero’s claim that the
other students were able to view the photos, their statements are, at best, self-serving, thus
deserving scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn account that her students,
who are the minors’ Facebook "friends," showed her the photos using their own Facebook accounts.
This only goes to show that no special means to be able to viewthe allegedly private posts were ever
resorted to by Escudero’s students,43 and that it is reasonable to assume, therefore, that the photos
were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’
children positively limited the disclosure of the photograph. If suchwere the case, they cannot invoke
the protection attached to the right to informational privacy. The ensuing pronouncement in US v.
Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and renounce all
privacy rights to such imagery, particularly under circumstances suchas here, where the Defendant
did not employ protective measures or devices that would have controlled access to the Web page
or the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-mail
that is forwarded from correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the petitioners’
contention. In this regard, the cyber community is agreed that the digital images under this setting
still remain to be outside the confines of the zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its users the tools
to interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not
Facebook friends with the former, despite its being visible only tohis or her own Facebook
friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is not Facebook friends with the
source of the content. The user’s own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or
not with the former. Also, when the post is shared or when a person is tagged, the respective
Facebook friends of the person who shared the post or who was tagged can view the post, the
privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook
friends. If C, A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of
100 (A’s own Facebook friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200
friends or the public, depending upon B’s privacy setting). As a result, the audience who can view
the post is effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user
interaction and socialization rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have facilitated their users’ self-tribute,
thereby resulting into the "democratization of fame."51 Thus, it is suggested, that a profile, or even a
post, with visibility set at "Friends Only" cannot easily, more so automatically, be said to be "very
private," contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned students’
Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion
since it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate access to the said
posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither
the minors nor their parents imputed any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality that respondents appended said photographs in
their memorandum submitted to the trial court in connection with Civil Case No. CEB-38594.52 These
are not tantamount to a violation of the minor’s informational privacy rights, contrary to petitioners’
assertion.
In sum, there can be no quibbling that the images in question, or to be more precise, the photos of
minor students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebook’s privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the photographs subject
of this case within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the original uploader,
through the "Me Only" privacy setting, or that the user’s contact list has been screened to limit
access to a select few, through the "Custom" setting, the result may have been different, for in such
instances, the intention to limit access to the particular post, instead of being broadcasted to the
public at large or all the user’s friends en masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears."53 This means that self-
regulation on the part of OSN users and internet consumers ingeneral is the best means of avoiding
privacy rights violations.54 As a cyberspace communitymember, one has to be proactive in protecting
his or her own privacy.55 It is in this regard that many OSN users, especially minors, fail.Responsible
social networking or observance of the "netiquettes"56 on the part of teenagers has been the concern
of many due to the widespreadnotion that teenagers can sometimes go too far since they generally
lack the people skills or general wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its
curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not only
STC but a number of schools and organizations have already deemed it important to include digital
literacy and good cyber citizenshipin their respective programs and curricula in view of the risks that
the children are exposed to every time they participate in online activities.58 Furthermore, considering
the complexity of the cyber world and its pervasiveness,as well as the dangers that these children
are wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about being a good digital
citizen is encouraged by these institutions and organizations. In fact, it is believed that "to limit such
risks, there’s no substitute for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
beresponsible in their dealings and activities in cyberspace, particularly in OSNs, whenit enforced
the disciplinary actions specified in the Student Handbook, absenta showing that, in the process, it
violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities. Accordingly, they should be cautious enough to control their privacy and to
1âw phi 1
exercise sound discretion regarding how much information about themselves they are willing to give
up. Internet consumers ought to be aware that, by entering or uploading any kind of data or
information online, they are automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore, and more importantly,
information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and
activities and must not be negligent in protecting their rights. Equity serves the vigilant. Demanding
relief from the courts, as here, requires that claimants themselves take utmost care in safeguarding
a right which they allege to have been violated. These are indispensable. We cannot afford
protection to persons if they themselves did nothing to place the matter within the confines of their
private zone. OSN users must be mindful enough to learn the use of privacy tools, to use them if
they desire to keep the information private, and to keep track of changes in the available privacy
settings, such as those of Facebook, especially because Facebook is notorious for changing these
settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no
cogent reason to disturb the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27,
2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby
AFFIRMED.
SO ORDERED.
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.
Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6 Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38 However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46 No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55 Definitely, the subject matter in this case is different
from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.
The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.
This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)
Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112 Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

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

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations
omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.
Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit
polls — properly conducted and publicized — can be vital tools in eliminating the evils of election-
fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to
minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in
any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution,
the poll body
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize the
Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that
ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of
the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be [broadcast] immediately."2 The
electoral body believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had
not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually
conducted and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its agents or representatives from
conducting exit polls during the . . . May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional
issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of
the assailed Comelec Resolution.
The Court's Ruling

The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual controversy
before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our democratic government. By its
very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the duty
to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here,
we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of
exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the
protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when the
need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on
May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not
only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to
this Court through a special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals
for the purpose of determining the probable result of an election by confidentially asking randomly
selected voters whom they have voted for, immediately after they have officially cast their ballots.
The results of the survey are announced to the public, usually through the mass media, to give an
advance overview of how, in the opinion of the polling individuals or organizations, the electorate
voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998
elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the
mass media, committed to report balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of
the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining
the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly
violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the
conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were
designed "to condition the minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus Election
Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune
to regulation by the State in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in general be manipulated easily. He
insists that these polls would sow confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the quick count undertaken by the
Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech and
of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a

'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties.
. . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom
of thought and speech is the indispensable condition of nearly every other form of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of
the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very least,
free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and political decision-making, and of maintaining the
balance between stability and change.17 It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open.18 It means more than the right
to approve existing political beliefs or economic arrangements, to lend support to official measures,
or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought
we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times
and under all circumstances.20 They are not immune to regulation by the State in the exercise of its
police power.21 While the liberty to think is absolute, the power to express such thought in words and
deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the
validity of restrictions to such freedoms, as follows:
These are the "clear and present danger" rule and the "dangerous tendency" rule. The first,
as interpreted in a number of cases, means that the evil consequence of the comment or
utterance must be "extremely serious and the degree of imminence extremely high" before
the utterance can be punished. The danger to be guarded against is the "substantive evil"
sought to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the
words uttered create a dangerous tendency which the state has a right to prevent, then such
words are punishable. It is not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in
general terms. Nor is it necessary that the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the legislative
body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier
decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well as in later
ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and,
more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the "clear and
present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every
case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of such substantive
character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present. "Present" refers to the time element; the danger
must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.35 And it is respondent's burden to overthrow such presumption.
Any act that restrains speech should be greeted with furrowed brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.37 Thus:
A government regulation is sufficiently justified if it is within the constitutional power of the

government, if it furthers an important or substantial government interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, when the end can be more
narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant. to add meaning to the equally vital right of
suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech."41 When faced with borderline situations in which the freedom of a
candidate or a party to speak or the freedom of the electorate to know is invoked against actions
allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in
the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be
antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.42
True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the electoral process. However, in order to justify a
restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring
orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research data
which may be used to study influencing factors and trends in voting behavior. An absolute prohibition
would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not
only for election-day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an
exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof
creates a clear and present danger to the community or it has a dangerous tendency." It then
contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the
results of such exit poll may not be in harmony with the official count made by the Comelec . . . is
ever present. In other words, the exit poll has a clear and present danger of destroying the credibility
and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey,
the interviewees or participants are selected at random, so that the results will as much as possible
be representative or reflective of the general sentiment or view of the community or group polled.
Second, the survey result is not meant to replace or be at par with the official Comelec count. It
consists merely of the opinion of the polling group as to who the electorate in general has probably
voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are
the credibility and the integrity of the elections, which are exercises that are separate and
independent from the exit polls. The holding and the reporting of the results of exit polls cannot
undermine those of the elections, since the former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and
confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior
around the voting centers.45 There is no showing, however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or confuse the
voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the voters'
answer to the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would be deprived
of studies on the impact of current events and of election-day and other factors on voters' choices. 1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such purpose
was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the
least restrictive alternative. Furthermore, the general interest of the State in insulating voters from
outside influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the voters'
choices is impermissible, so is impermissible, so is regulating speech via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type of information obtained through exit polling.
On the other hand, there are other valid and reasonable ways and means to achieve the Comelec
end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters that the latter may refuse
interviewed, and that the interview is not part of the official balloting process. The pollsters may
further be required to wear distinctive clothing that would show they are not election
officials.48 Additionally, they may be required to undertake an information campaign on the nature of
the exercise and the results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are
randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are
released to the public only on the day after the elections.49 These precautions, together with the
possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit polls — properly conducted and
publicized — can be vital tools for the holding of honest, orderly, peaceful and credible elections;
and for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy
of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the
voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification.
Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from
making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of
disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of
voters with their respective votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however, be achieved merely
through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court
on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the
Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
EN BANC RESOLUTION October 22,1991
Gentlemen
Quoted hereunder, for your information is a resolution of the Court En Banc dated October 22, 1991.
Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino's Libel Case. —
February 11, 1991 was no ordinary day for he Regional Trial Court of Manila, particularly branch 35
thereof. Calendared for hearing that day was Criminal Case No. 88-61915, entitled "People of the
Philippines vs. Luis Beltran," and scheduled to testify for the prosecution was no less than Her
Excellency, President Corazon Aquino.
Upon prior permission sought and obtained by Presiding Judge Ramon Makasiar, the hearing was
held at the session hall of the Manila City Council to accommodate the large audience. The
proceedings were telecast live by several television stations, Judge Makasiar having granted on
February 7, 1991 the request of Ms. Ida F. Vargas of the Presidential Broadcast Staff to televise the
proceedings in said case.
The day after the trial, Sectoral Representative Arturo A. Borjal wrote Justice Marcelo B. Fernan
lamenting the live coverage by several television stations of the court proceedings. In his letter,
Borjal stated that:
. . . in the United States and other democratic countries, live TV and radio coverage is strictly
prohibited under their Rules of Court. For such practice tends to undermine the integrity of
and decorum in judicial proceedings.
Thus, Borjal requested:
for a reaction to this letter so that, if deemed necessary, I could initiate the remedial
legislation.
On February 14, 1991, the Supreme Court En Banc required Judge Makasiar to comment on the
letter of Congressman Borjal. Complying therewith, Judge Makasiar stated at the outset that "he had
never asked, invited or requested any media man whether print, broadcast, or telecast, to cover the
Court's
proceedings." 1 When a representative from Malacañang sought permission to televise the
proceedings, he granted the request on the condition "that only the usual video footages would be
taken of the proceedings for news purposes." 2 It turned out that the entire proceedings was telecast
live to the public.
Nonetheless, Judge Makasiar remarked that he "was not aware of any law, rule of court, or Supreme
Court decision, guideline or declared policy, vis-à-vis, the live TV and radio coverage of court trials.
However, sections 4, 7 and 14 (2) of the Bill of Rights (Article III) of the 1987 Constitution guarantee
the freedom of speech, of expression, and of the press; the right of the people to information on
matters of public concern; and the right of the accused to public trial, respectively. The implied
suggestion of Congressman Borjal to ban live TV and radio coverage of court trials may be offensive
to these constitutional freedoms and rights." 3
He further observed that "the justice system in the Philippines cannot be compared with that of the
United States which adopts the jury system. Members of the jury are laymen, some of whom with
low education, and therefore easily influenced by emotion, sentiments, comments of other people,
and other human frailties. In the Philippines, justice is administered by judges who are learned in the
law of evidence, and are constitutionally mandated to state clearly and distinctly the facts and the
law on which their pronouncements and judgment are based." 4
To stress his point, Judge Makasiar cited the U.S. Supreme Court decision in the case, "Richmond
Newspaper, Inc. et al. vs. Virginia, et al" 5 which, among others, stated that "a trial courtroom is a
public place where the people and the representatives of media, generally, have a right to be
present, and where their presence has been historically thought to enhance the integrity and the
quality of what takes place."
The response to the letter of Congressman Borjal should not be to strictly prohibit live TV
and radio coverage of judicial proceedings but to prescribe rules and guidelines for
electronics media coverage of court trials," thus submitted Judge Makasiar. He further
suggested that an ad hoc committee be formed to draft the necessary rules and guidelines
on this matter for submission and consideration of the Supreme Court En Banc. 6
The propriety of granting or denying permission to the media to broadcast, record, or photograph
court proceedings involves weighing the constitutional guarantees of freedom of the press, 7 the
right of the public to information 8 and the right to public trial, 9 on the one hand, and on the other
hand, the due process rights of the defendant 10 and the inherent and constitutional power of the
courts to control their proceedings in order to permit the fair and impartial administration of
justice. 11 Collaterally, it also raises issues in the nature of media, particularly television and its role
in society, and of the impact of new technologies on law.
The records of the Constitutional Commission are bereft of discussion regarding the subject of
cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the
questions squarely.
While we take notice of the September 1990 report 12 of the United States Judicial Conference Ad
Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of
the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the
Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial
proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in
any court is a matter of serious importance to all concerned and should not be treated as a means of
entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the
orderly and serious quest for truth for which our judicial proceedings are formulated.
Courts do not discriminate against radio and television media by forbidding the broadcasting or
televising of a trial while permitting the newspaper reporter access to the courtroom, since a
television or news reporter has the same privilege, as the news reporter is not permitted to bring his
typewriter or printing press into the courtroom. 13
In Estes vs. Texas, 14 the United States Supreme Court held that television coverage of judicial
proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-
4, the Court through Mr. Justice Clark, identified four (4) areas of potential prejudice which might
arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The
decision in part pertinently stated:
Experience likewise has established the prejudicial effect of telecasting on witnesses.

Witnesses might be frightened, play to the camera, or become nervous. They are subject to
extraordinary out-of-court influences which might affect their testimony. Also, telecasting not
only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it
may as well affect his own performance. Judges are human beings also and are subject to
the same psychological reactions as laymen. For the defendant, telecasting is a form of
mental harassment and subjects him to excessive public exposure and distracts him from the
effective presentation of his defense.
The television camera is a powerful weapon which intentionally or inadvertently can destroy
an accused and his case in the eyes of the public.
Representatives of the press have no special standing to apply for a writ of mandate to compel a
court to permit them to attend a trial, since within the courtroom a reporter's constitutional rights are
no greater than those of any other member of the public. 15 massive intrusion of representatives of
the news media into the trial itself can also alter or destroy the constitutionally necessary judicial
atmosphere and decorum that the requirements impartiality imposed by due process of law are
denied the defendant 16 and a defendant in a criminal proceeding should not be forced to run a
gauntlet of reporters and photographers each time he enters or leaves the courtroom. 17
Considering the prejudice it poses to the defendant's right to due process as well as to the fair and
orderly administration of justice and considering further that the freedom of the press and the right of
the people to information may be served and satisfied by less distracting, degrading and prejudicial
means, live radio and television coverage of court proceedings shall not be allowed. Video footages
of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the
judicial officers, the parties and their counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be permitted during the trial proper.
ACCORDINGLY, in order to protect the parties' right to due process, to prevent the distraction of the
participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court
Resolved to PROHIBIT live radio and television coverage of court proceedings. Video footages of
court hearings for news purposes shall be limited and restricted as above indicated. Melencio-
Herrera, J., is on leave.
Very truly yours,
DANIEL T. MARTINEZ
Clerk of Court
By:
(Sgd.) LUZVIMINDA D. PUNO

Assistant Clerk of Court
A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF
THE PLUNDER CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG

PILIPINAS, CESAR SARINO, RENATO CAYETANO, and ATTY. RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES,oppositors.
RESOLUTION
MENDOZA, J.:
This is a motion for reconsideration of the decision denying petitioners' request for permission to
televise and broadcast live the trial of former President Estrada before the Sandiganbayan. The
motion was filed by the Secretary of Justice, as one of the petitioners, who argues that there is really
no conflict between the right of the people to public information and the freedom of the press, on the
one hand, and, on the other, the right of the accused to a fair trial; that if there is a clash between
these rights, it must be resolved in favor of the right of the people and the press because the people,
as the repository of sovereignty, are entitled to information; and that live media coverage is a
safeguard against attempts by any party to use the courts as instruments for the pursuit of selfish
interests.
On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and
radio coverage of his trial on the ground that its allowance will violate the sub judice rule and that,
based on his experience with the impeachment trial, live media coverage will only pave the way for
so-called "expert commentary" which can trigger massive demonstrations aimed at pressuring the
Sandiganbayan to render a decision one way or the other. Mr. Estrada contends that the right of the
people to information may be served through other means less distracting, degrading, and
prejudicial than live TV and radio coverage. 1âwphi1.nêt
The Court has considered the arguments of the parties on this important issue and, after due
deliberation, finds no reason to alter or in any way modify its decision prohibiting live or real time
broadcast by radio or television of the trial of the former president. By a vote of nine (9) to six (6) of
its members,1 the Court denies the motion for reconsideration of the Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices,2 has
resolved to order the audio-visual recording of the trial.
What follows is the opinion of the majority. law phil.net
Considering the significance of the trial before the Sandiganbayan of former President Estrada and
the importance of preserving the records thereof, the Court believes that there should be an audio-
visual recording of the proceedings. The recordings will not be for live or real time broadcast but for
documentary purposes. Only later will they be available for public showing, after the Sandiganbayan
shall have promulgated its decision in every case to which the recording pertains. The master film
shall be deposited in the National Museum and the Records Management and Archives Office for
historical preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be inconspicuously installed in the
courtroom and the movement of TV crews will be regulated, consistent with the dignity and solemnity
of the proceedings. The trial shall be recorded in its entirety, except such portions thereof as the
Sandiganbayan may decide should not be held public pursuant to Rule 119, §21 of the Revised
Rules of Criminal Procedure. No comment shall be included in the documentary except annotations
which may be necessary to explain certain scenes which are depicted. The audio-visual recordings
shall be made under the supervision and control of the Sandiganbayan or its Division as the case
may be.
There are several reasons for such televised recording. First, the hearings are of historic
1aw phil.net
significance. They are an affirmation of our commitment to the rule that "the King is under no man,
but he is under God and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.)
Second, the Estrada cases involve matters of vital concern to our people who have a fundamental
right to know how their government is conducted. This right can be enhanced by audio visual
presentation. Third, audio-visual presentation is essential for the education and civic training of the
people.
Above all, there is the need to keep audio-visual records of the hearings for documentary purposes.
The recordings will be useful in preserving the essence of the proceedings in a way that the cold
print cannot quite do because it cannot capture the sights and sounds of events. They will be
primarily for the use of appellate courts in the event a review of the proceedings, rulings, or
decisions of the Sandiganbayan is sought or becomes necessary. The accuracy of the transcripts of
stenographic notes taken during the trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking
part in the proceedings will be playing to the cameras and will thus be distracted from the proper
performance of their roles -- whether as counsel, witnesses, court personnel, or judges -- will be
allayed. The possibility that parallel trials before the bar of justice and the bar of public opinion may
jeopardize, or even prevent, the just determination of the cases can be minimized. The possibility
that judgment will be rendered by the popular tribunal before the court of justice can render its own
will be avoided.
At the same time, concerns about the regularity and fairness of the trial -- which, it may be assumed,
is the concern of those opposed to, as much as of those in favor of, televised trials - will be
addressed since the tapes will not be released for public showing until after the decision of the cases
by the Sandiganbayan. By delaying the release of the tapes, much of the problem posed by real time
TV and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trial can be served by audio-visual
recordings without impairing the right of the accused to a fair trial.
Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer
Productions Pty. Ltd. V. Capulong,5 this Court set aside a lower court's injunction restraining the
filming of "Four Day Revolution," a documentary film depicting, among other things, the role of then
Minister of National Defense Juan Ponce Enrile in the 1986 EDSA people power. This Court held: "A
limited intrusion into a person's privacy has long been regarded as permissible where that person is
a public figure and the information sought to be elicited from him or to be published about him
constitute matters of a public character."6
No one can prevent the making of a movie based on the trial. But, at least, if a documentary record
is made of the proceedings, any movie that may later be produced can be checked for its accuracy
against such documentary and any attempt to distort the truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes
célèbres was made was made way back in 1971 by Paul Freund of the Harvard Law School. As he
explained:
In fairness let me refer to an American experience many of my lay friends found similarly
moving. An educational television network filmed a trial in Denver of a Black Panther leader
on charges of resisting arrest, and broadcast the document in full, in four installments,
several months after the case was concluded -- concluded incidentally, with a verdict of
acquittal.
No one could witness the trial without a feeling of profound respect for the painstaking way in
which the truth was searched for, for the ways whereby law copes with uncertainties and
ambiguities through presumptions and burden of proof, and the sense of gravity with which
judge and jury carried out their responsibilities.
I agree in general with the exclusion of television from the courtroom, for the familiar good
reasons. And yet the use of television at a trial for documentary purposes, not for the
broadcast of live news, and with the safeguards of completeness and consent, is an
educational experiment that I would be prepared to welcome. Properly safeguarded and with
suitable commentary, the depiction of an actual trial is an agency of enlightenment that could
have few equals in its impact on the public understanding.
Understanding of our legal process, so rarely provided by our educational system, is now a
desperate need.7
Professor Freund's observation is as valid today as when it was made thirty years ago. It is
perceptive for its recognition of the serious risks posed to the fair administration of justice by live TV
and radio broadcasts, especially when emotions are running high on the issues stirred by a case,
while at the same time acknowledging the necessity of keeping audio-visual recordings of the
proceedings of celebrated cases, for public information and exhibition, after passions have subsided.
WHEREFORE, an audio-visual recording of the trial of former President Estrada before the
Sandiganbayan is hereby ordered to be made, for the account of the Sandiganbayan, under the
following conditions: (a) the trial shall be recorded in its entirety, excepting such portions thereof as
the Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of
Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and solemnity of the
proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall
be made without comment except such annotations of scenes depicted therein as may be necessary
to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the former President shall be prohibited under pain of
contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the
conditions are observed, the audio-visual recording of the proceedings shall be made under the
supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant
to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for
public broadcast, the original thereof shall be deposited in the National Museum and the Records
Management and Archives Office for preservation and exhibition in accordance with law.
SO ORDERED.
A.M. No. 10-11-5-SC, June 14, 2011
RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER
CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL.,
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-11-6-SC
RE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF
THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN,
MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE
PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF
VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND
FOR THE PEOPLE TO WITNESS THE "TRIAL OF THE DECADE" TO MAKE IT TRULY PUBLIC
AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION,
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-11-7-SC
RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF
THE MAGUINDANAO MASSACRE TRIAL.
RESOLUTION
CARPIO MORALES, J.:
On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while
on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the
most brutal killing of journalists in recent history, the tragic incident which came to be known as the
"Maguindanao Massacre" spawned charges for 57 counts of murder and an additional charge of
rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-09-162216-31,
Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et al.
Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding
Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) of Quezon City inside
Camp Bagong Diwa in Taguig City.
Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines
(NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,1 individual
journalists2 from various media entities, and members of the academe3 filed a petition before this
Court praying that live television and radio coverage of the trial in these criminal cases be allowed,
recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the
working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and
the use of devices.4 The Court docketed the petition as A.M. No. 10-11-5-SC.
In a related move, the National Press Club of the Philippines5 (NPC) and Alyansa ng Filipinong
Mamamahayag6 (AFIMA) filed on November 22, 2010 a petition praying that the Court constitute
Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao Massacre trial
to relieve it of all other pending cases and assigned duties, and allow the installation inside the
courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the
television monitors outside the court.7 The Court docketed the petition as A.M. No. 10-11-6-SC.
President Benigno S. Aquino III, by letter of November 22, 20108 addressed to Chief Justice Renato
Corona, came out "in support of those who have petitioned [this Court] to permit television and radio
broadcast of the trial." The President expressed "earnest hope that [this Court] will, within the many
considerations that enter into such a historic deliberation, attend to this petition with the dispatch,
dispassion and humaneness, such a petition merits."9 The Court docketed the matter as A.M. No.
10-11-7-SC.
By separate Resolutions of November 23, 2010,10 the Court consolidated A.M. No. 10-11-7-SC with
A.M. No. 10-11-5-SC. The Court shall treat in a separate Resolution A.M. No. 10-11-6-SC.
Meanwhile, various groups11 also sent to the Chief Justice their respective resolutions and
statements bearing on these matters.
The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment
of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The President, through the
Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply of January 18,
2011 and January 20, 2011. Ampatuan also filed a Rejoinder of March 9, 2011.
On Broadcasting the Trial of the Maguindanao Massacre Cases
Petitioners seek the lifting of the absolute ban on live television and radio coverage of court
proceedings. They principally urge the Court to revisit the 1991 ruling in Re: Live TV and Radio
Coverage of the Hearing of President Corazon C. Aquino’s Libel Case12 and the 2001 ruling in Re:
Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the
Former President Joseph E. Estrada13 which rulings, they contend, violate the doctrine that proposed
restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand
when regulation is a viable alternative.
Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media
coverage due to the gruesomeness of the crime, prominence of the accused, and the number of
media personnel killed. They inform that reporters are being frisked and searched for cameras,
recorders, and cellular devices upon entry, and that under strict orders of the trial court against live
broadcast coverage, the number of media practitioners allowed inside the courtroom has been
limited to one reporter for each media institution.
The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter14 to
Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the
proceedings of the Maguindanao Massacre cases. Judge Solis-Reyes replied, however, that
"matters concerning media coverage should be brought to the Court’s attention through appropriate
motion."15 Hence, the present petitions which assert the exercise of the freedom of the press, right to
information, right to a fair and public trial, right to assembly and to petition the government for
redress of grievances, right of free access to courts, and freedom of association, subject to
regulations to be issued by the Court.
The Court partially GRANTS pro hac vice petitioners’ prayer for a live broadcast of the trial
court proceedings, subject to the guidelines which shall be enumerated shortly.
Putt’s Law16 states that "technology is dominated by two types of people: those who understand
what they do not manage, and those who manage what they do not understand." Indeed, members
of this Court cannot strip their judicial robe and don the experts’ gown, so to speak, in a pretense to
foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom.
A decade after Estrada and a score after Aquino, the Court is once again faced with the same task
of striking that delicate balance between seemingly competing yet certainly complementary rights.
The indication of "serious risks" posed by live media coverage to the accused’s right to due process,
left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the
exercise of press freedom and the right to public information. lawphil
The rationale for an outright total prohibition was shrouded, as it is now, inside the
comfortable cocoon of a feared speculation which no scientific study in the Philippine setting
confirms, and which fear, if any, may be dealt with by safeguards and safety nets under
existing rules and exacting regulations.
In this day and age, it is about time to craft a win-win situation that shall not compromise rights in
the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the
integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment
of a right, provides a workable solution to the concerns raised in these administrative matters, while,
at the same time, maintaining the same underlying principles upheld in the two previous cases.
The basic principle upheld in Aquino is firm ─ "[a] trial of any kind or in any court is a matter of
serious importance to all concerned and should not be treated as a means of entertainment[, and t]o
so treat it deprives the court of the dignity which pertains to it and departs from the orderly and
serious quest for truth for which our judicial proceedings are formulated." The observation that
"[m]assive intrusion of representatives of the news media into the trial itself can so alter and destroy
the constitutionally necessary atmosphere and decorum" stands.
The Court concluded in Aquino:
Considering the prejudice it poses to the defendant's right to due process as well as to the fair and
orderly administration of justice, and considering further that the freedom of the press and the right
of the people to information may be served and satisfied by less distracting, degrading and
prejudicial means, live radio and television coverage of court proceedings shall not be allowed.
Video footages of court hearings for news purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of
official proceedings. No video shots or photographs shall be permitted during the trial proper.
Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the
participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court
resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of
court hearings for news purposes shall be limited and restricted as above indicated.17
The Court had another unique opportunity in Estrada to revisit the question of live radio and
television coverage of court proceedings in a criminal case. It held that "[t]he propriety of granting or
denying the instant petition involve[s] the weighing out of the constitutional guarantees of freedom of
the press and the right to public information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the constitutional power of a court to control its proceedings
in ensuring a fair and impartial trial." The Court disposed:
The Court is not all that unmindful of recent technological and scientific advances but to chance
forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample
safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too
high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.18
In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13,
2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for
documentary purposes, under the following conditions:
x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the
Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of
Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and solemnity of the
proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall
be made without comment except such annotations of scenes depicted therein as may be necessary
to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the former President shall be prohibited under pain of
contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the
conditions are observed, the audio-visual recording of the proceedings shall be made under the
supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant
to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for
public broadcast, the original thereof shall be deposited in the National Museum and the Records
Management and Archives Office for preservation and exhibition in accordance with law.19
Petitioners note that the 1965 case of Estes v. Texas20 which Aquino and Estrada heavily cited, was
borne out of the dynamics of a jury system, where the considerations for the possible infringement of
the impartiality of a jury, whose members are not necessarily schooled in the law, are different from
that of a judge who is versed with the rules of evidence. To petitioners, Estes also does not
represent the most contemporary position of the United States in the wake of latest
jurisprudence21 and statistical figures revealing that as of 2007 all 50 states, except the District of
Columbia, allow television coverage with varying degrees of openness.
Other jurisdictions welcome the idea of media coverage. Almost all the proceedings of United
Kingdom’s Supreme Court are filmed, and sometimes broadcast.22 The International Criminal Court
broadcasts its proceedings via video streaming in the internet.23
On the media coverage’s influence on judges, counsels and witnesses, petitioners point out
that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion.
They point out errors of generalization where the conclusion has been mostly supported by studies
on American attitudes, as there has been no authoritative study on the particular matter dealing with
Filipinos.
Respecting the possible influence of media coverage on the impartiality of trial court judges,
petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial
must pass the "totality of circumstances" test, applied in People v. Teehankee, Jr.24 and Estrada v.
Desierto,25 that the right of an accused to a fair trial is not incompatible to a free press, that pervasive
publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be
allegation and proof of the impaired capacity of a judge to render a bias-free decision. Mere fear of
possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right
to a fair trial.
Moreover, an aggrieved party has ample legal remedies. He may challenge the validity of an
adverse judgment arising from a proceeding that transgressed a constitutional right. As pointed out
by petitioners, an aggrieved party may early on move for a change of venue, for continuance until
the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of
the trial when necessary. The trial court may likewise exercise its power of contempt and issue gag
orders.
One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases
is the impossibility of accommodating even the parties to the cases – the private
complainants/families of the victims and other witnesses – inside the courtroom. On public
trial, Estrada basically discusses:
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else,
where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly
dealt with and would not be unjustly condemned and that his rights are not compromised in secrete
conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the
court doors must be open to those who wish to come, sit in the available seats, conduct themselves
with decorum and observe the trial process. In the constitutional sense, a courtroom should have
enough facilities for a reasonable number of the public to observe the proceedings, not too small as
to render the openness negligible and not too large as to distract the trial participants from their
proper functions, who shall then be totally free to report what they have observed during the
proceedings.26 (underscoring supplied)
Even before considering what is a "reasonable number of the public" who may observe the
proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily
entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims
and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the
proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that
the prosecution and the defense have listed more than 200 witnesses each.
The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the
interested parties, whether private complainants or accused, is unfortunate enough. What more if the
right itself commands that a reasonable number of the general public be allowed to witness the
proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and
public trial.
In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao
Massacre cases, the Court lays down the following guidelines toward addressing the concerns
mentioned in Aquino and Estrada:
(a) An audio-visual recording of the Maguindanao massacre cases may be made both for
documentary purposes and for transmittal to live radio and television broadcasting.
(b) Media entities must file with the trial court a letter of application, manifesting that they
intend to broadcast the audio-visual recording of the proceedings and that they have the
necessary technological equipment and technical plan to carry out the same, with an
undertaking that they will faithfully comply with the guidelines and regulations and cover the
entire remaining proceedings until promulgation of judgment.
No selective or partial coverage shall be allowed. No media entity shall be allowed to

broadcast the proceedings without an application duly approved by the trial court.
(c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to
provide a single wide-angle full-view of the sala of the trial court. No panning and zooming
shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings.
The camera and the necessary equipment shall be operated and controlled only by a duly
designated official or employee of the Supreme Court. The camera equipment should not
produce or beam any distracting sound or light rays. Signal lights or signs showing the
equipment is operating should not be visible. A limited number of microphones and the least
installation of wiring, if not wireless technology, must be unobtrusively located in places
indicated by the trial court.
The Public Information Office and the Office of the Court Administrator shall coordinate and
assist the trial court on the physical set-up of the camera and equipment.
(d) The transmittal of the audio-visual recording from inside the courtroom to the media
entities shall be conducted in such a way that the least physical disturbance shall be ensured
in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access
to the media entities.
The hardware for establishing an interconnection or link with the camera equipment
monitoring the proceedings shall be for the account of the media entities, which should
employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom,
(ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue
commotion in case of technical glitches.
If the premises outside the courtroom lack space for the set-up of the media entities’
facilities, the media entities shall access the audio-visual recording either via wireless
technology accessible even from outside the court premises or from one common web
broadcasting platform from which streaming can be accessed or derived to feed the images
and sounds.
At all times, exclusive access by the media entities to the real-time audio-visual recording
should be protected or encrypted.
(e) The broadcasting of the proceedings for a particular day must be continuous and in its
entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of
Court27 applies, and where the trial court excludes, upon motion, prospective witnesses from
the courtroom, in instances where, inter alia, there are unresolved identification issues or
there are issues which involve the security of the witnesses and the integrity of their
testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the
witness).
The trial court may, with the consent of the parties, order only the pixelization of the image of
the witness or mute the audio output, or both.
(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or
any other gap shall be allowed until the day’s proceedings are adjourned, except during the
period of recess called by the trial court and during portions of the proceedings wherein the
public is ordered excluded. 1avv phi 1
(g) To avoid overriding or superimposing the audio output from the on-going proceedings,
the proceedings shall be broadcast without any voice-overs, except brief annotations of
scenes depicted therein as may be necessary to explain them at the start or at the end of the
scene. Any commentary shall observe the sub judice rule and be subject to the contempt
power of the court;
(h) No repeat airing of the audio-visual recording shall be allowed until after the finality of
judgment, except brief footages and still images derived from or cartographic sketches of
scenes based on the recording, only for news purposes, which shall likewise observe the sub
judice rule and be subject to the contempt power of the court;
(i) The original audio-recording shall be deposited in the National Museum and the Records
Management and Archives Office for preservation and exhibition in accordance with law.
(j) The audio-visual recording of the proceedings shall be made under the supervision and
control of the trial court which may issue supplementary directives, as the exigency requires,
including the suspension or revocation of the grant of application by the media entities.
(k) The Court shall create a special committee which shall forthwith study, design and
recommend appropriate arrangements, implementing regulations, and administrative matters
referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in
accordance with the above-outlined guidelines. The Special Committee shall also report and
recommend on the feasibility, availability and affordability of the latest technology that would
meet the herein requirements. It may conduct consultations with resource persons and
experts in the field of information and communication technology.
(l) All other present directives in the conduct of the proceedings of the trial court (i.e.,
prohibition on recording devices such as still cameras, tape recorders; and allowable number
of media practitioners inside the courtroom) shall be observed in addition to these guidelines.
Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract
discussion of key constitutional precepts into the workable context. Technology per se has always
been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work
to the advantage and furtherance of the various rights herein involved, within the contours of defined
guidelines.
WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC
VICE the request for live broadcast by television and radio of the trial court proceedings of the
Maguindanao Massacre cases, subject to the guidelines herein outlined.
SO ORDERED.
wed to candidates and political parties, as well as the requirements incident thereto, such as the
need to report the same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of
candidates and political parties for national election positions to an aggregate total of one hundred
twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people's
right to suffrage as well as their right to information relative to the exercise of their right to choose
who to elect during the forth coming elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number
of minutes that candidates may use for television and radio advertisements, as provided in Section 6
of Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent
portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates
shall have equal access to media time and space. The following guidelines may be amplified on by
the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty ( 60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of advertisements broadcast for any candidate
or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that
a candidate is entitled to the aforestated number of minutes "per station."7 For the May 2013
elections, however, respondent COMELEC promulgated Resolution No. 9615 dated January 15,
2013, changing the interpretation of said candidates' and political parties' airtime limitation for
political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA

Network, Incorporated ( GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds
Broadcasting Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators
of radio and television networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng
Pilipinas (KBP) is the national organization of broadcasting companies in the Philippines
representing operators of radio and television stations and said stations themselves. They sent their
respective letters to the COMELEC questioning the provisions of the aforementioned Resolution,
thus, the COMELEC held public hearings. Thereafter, on February 1, 2013, respondent issued
Resolution No. 9631 amending provisions of Resolution No. 9615. Nevertheless, petitioners still
found the provisions objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's

franchise or permit, imposes criminal liability against broadcasting entities and their officers
in the event they sell airtime in excess of the size, duration, or frequency authorized in the
new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per
station" airtime for political campaigns or dvertisements, and also required prior COMELEC
approval for candidates' television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while petitioner GMA further assails Section 35, 12 which
states that any violation of said Rules shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave
to Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution
changing the interpretation of candidates' and political parties' airtime limitation for political
campaigns or advertisements from a "per station" basis, to a "total aggregate" basis. Petitioners
allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional
and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction, for the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive
aggregate airtime limit and a vague meaning for a proper computation of "aggregate total" airtime,
and violates the equal protection guarantee, thereby defeating the intent and purpose of R.A. No.
9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes
on the constitutionally protected freedom of speech, of the press and of expression, and on the right
of people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost
impossible burden on broadcast mass media of monitoring a candidate's or political party's
aggregate airtime, otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and
the press; and for being violative of the equal protection guarantee. In addition to the foregoing,
petitioner GMA further argues that the Resolution was promulgated without public consultations, in
violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition
of the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby
producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated March 8, 2013, that the
petition should be denied based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition are not available to petitioners,
because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial
powers, while the writ of prohibition only lies against the exercise of judicial, quasijudicial or
ministerial functions. Said writs do not lie against the COMELEC's administrative or rule-making
powers.
Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights
and freedoms they enumerate are not personal to them, rather, they belong to candidates, political
parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on
media outlets. It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to
give them legal standing as said "fear of injury" is highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance
with R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to
media during elections. It sees this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the power to supervise and regulate, during election
periods, transportation and other public utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or
opportunity, and equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.
This being the case, then the Resolutions cannot be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed Resolutions have
given clear and adequate mechanisms to protect broadcast stations from potential liability arising
from a candidate's or party's violation of airtime limits by putting in the proviso that the station "may
require buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration
or frequency authorized by law or these rules." Furthermore, words should be understood in the
sense that they have in common usage, and should be given their ordinary meaning. Thus, in the
provision for the right to reply, "charges" against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona fide news broadcasts. It points out that the fact that
notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring
purposes only, not for censorship. Further, respondent argues, that for there to be prior restraint,
official governmental restrictions on the press or other forms of expression must be done in advance
of actual publication or dissemination. Moreover, petitioners are only required to inform the
COMELEC of candidates'/parties' guestings, but there is no regulation as to the content of the news
or the expressions in news interviews or news documentaries. Respondent then emphasized that
the Supreme Court has held that freedom of speech and the press may be limited in light of the duty
of the COMELEC to ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it as restrictive of the
airing of bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in
the Constitution, and the assailed Resolutions provide that said right can only be had after going
through administrative due process. The provision was also merely lifted from Section 10 of R.A. No.
9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot
be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of
"political advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not violate the equal
protection clause, because it does not make any substantial distinctions between national and
regional and/or local broadcast stations, and even without the aggregate total airtime rule,
candidates and parties are likely to be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of
private property without just compensation. Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves and frequencies through which they transmit
broadcast signals; they are merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with some form of public service,
in this case, to provide candidates with the opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of proposed rules and afford interested parties the
opportunity to submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next
succeeding section, except the Congress, the Judiciary, the Constitutional Commissions,
military establishments in all matters relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before
the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-
arguments:
According to GMA, a petition for certiorari is the proper remedy to question the herein assailed
Resolutions, which should be considered as a "decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of the matter justifies
its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for
declaratory relief because such action only asks the court to make a proper interpretation of the
rights of parties under a statute or regulation. Such a petition does not nullify the assailed statute or
regulation, or grant injunctive relief, which petitioners are praying for in their petition. Thus, GMA
maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking
said law. GMA points out that it has stated in its petition that the law in fact allows the sale or
donation of airtime for political advertisements and does not impose criminal liability against radio
and television stations. What it is assailing is the COMELEC's erroneous interpretation of the law's
provisions by declaring such sale and/or donation of airtime unlawful, which is contrary to the
purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit because:
x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability
because of the alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding
what was provided for in R.A. No. 9006. Second, the injury is traceable to the challenged action of
respondent COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is likely to
be redressed by the remedy sought in petitioner GMA's Petition, among others, for the Honorable
Court to nullify the challenged pertinent provisions of the assailed Resolutions.15
On substantive issues, GMA first argues that the questioned Resolutions are contrary to the
objective and purpose of the Fair Election Act. It points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A. No. 6646. The Fair Election Act also speaks of
"equal opportunity" and "equal access,'' but said law never mentioned equalizing the economic
station of the rich and the poor, as a declared policy. Furthermore, in its opinion, the supposed
correlation between candidates' expenditures for TV ads and actually winning the elections, is a
mere illusion, as there are other various factors responsible for a candidate's winning the election.
GMA then cites portions of the deliberations of the Bicameral Conference Committee on the bills that
led to the enactment of the Fair Election Act, and alleges that this shows the legislative intent that
airtime allocation should be on a "per station" basis. Thus, GMA claims it was arbitrary and a grave
abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime limitations
on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the duration of total airtime that each candidate has
purchased even from other stations would expose their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as its franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that petitioners would only incur liability if they "knowingly"
sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is
clearly absent from the provisions thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and
is unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole
judgment of a news event as a political advertisement are so pervasive under the assailed
Resolutions, and provoke the distastes or chilling effect of prior restraint"16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the governmental interest of
leveling the playing field between rich and poor candidates cannot justify the restriction on the
freedoms of expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election
Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful election propaganda shall include:
xxxx
All other forms of election propaganda not prohibited by this Code as the Commission may authorize
after due notice to all interested parties and hearing where all the interested parties were given an
equal opportunity to be heard: Provided, That the Commission's authorization shall be published in
two newspapers of general circulation throughout the nation for at least twice within one week after
the authorization has been granted.
There having been no prior public consultation held, GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order, because the
implementation of the Resolutions in question will cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide television and radio services to the public, and
by exposing it to the risk of incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio and television
stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed
a Supplemental Comment and Opposition17 where it further expounded on the legislative intent
behind the Fair Election Act, also quoting portions of the deliberations of the Bicameral Conference
Committee, allegedly adopting the Senate Bill version setting the computation of airtime limits on a
per candidate, not per station, basis. Thus, as enacted into law, the wordings of Section 6 of the Fair
Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per
station basis. Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano is
wrong in arguing that there should be empirical data to support the need to change the computation
of airtime limits from a per station basis to a per candidate basis, because nothing in law obligates
the COMELEC to support its Resolutions with empirical data, as said airtime limit was a policy
decision dictated by the legislature itself, which had the necessary empirical and other data upon
which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to minimize election spending and in furtherance of
such constitutional power, the COMELEC issued the questioned Resolutions, in faithful
implementation of the legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion
of his name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be
charged against his airtime limits by pointing out that what will be counted against a candidate's
airtime and expenditures are those advertisements that have been paid for or donated to them to
which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional imprimatur. It is the Constitution itself that
imposes the restriction on the freedoms of speech and expression, during election period, to
promote an important and significant governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to
information on matters of public concern, because in this case, the COMELEC is not withholding
access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency
involved and to prevent irreparable injury that may be caused to the petitioners if respondent
COMELEC is not enjoined from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion
for Early Resolution of the Consolidated Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said
Motion. Not long after, ABC followed suit and filed its own Opposition to the Motion23 filed by the
respondent.
In the interim, respondent filed a Second Supplemental Comment and Opposition24 dated April 8,
2013.
In the Second Supplemental Comment and Opposition, respondent delved on points which were not
previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in
the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the
assailed Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present
petition.
Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No.
9006 conclusively shows that congress intended the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In addition, the legal duty of monitoring lies with the
COMELEC. Broadcast stations are merely required to submit certain documents to aid the
COMELEC in ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to
inform the COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It
is for monitoring purposes only, not censorship. It does not control the subject matter of news
broadcasts in anyway. Neither does it prevent media outlets from covering candidates in news
interviews, news events, and news documentaries, nor prevent the candidates from appearing
thereon.
As for the right to reply, respondent insists that the right to reply provision cannot be considered a
prior restraint on the freedoms of expression, speech and the press, as it does not in any way restrict
the airing of bona fide new broadcasts. Media entities are free to report any news event, even if it
should turn out to be unfavourable to a candidate or party. The assailed Resolutions merely give the
candidate or party the right to reply to such charges published or aired against them in news
broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of
franchise or permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the
Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a
Resolution25 consolidating the case with the rest of the petitions and requiring respondent to
comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.26 Therein,
respondent stated that the petition filed by RMN repeats the issues that were raised in the previous
petitions. Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to
question the assailed resolutions and that RMN has no locus standi to file the present petition.
Respondent maintains that the arguments raised by RMN, like those raised by the other petitioners
are without merit and that RMN is not entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013 national and local elections, nevertheless the issues
raised by the petitioners have not been rendered moot and academic by the conclusion of the 2013
elections. Considering that the matters elevated to the Court for resolution are susceptible to
repetition in the conduct of future electoral exercises, these issues will be resolved in the present
action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are presented before the Court. So the Court does again in this particular
case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the COMELEC. Technically, respondent may have a
point. However, considering the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and definitive pronouncement
that everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to
step in and resolve petitions despite their being the subject of an improper remedy, in view of the
public importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to
question the personality of the parties invoking the Court's jurisdiction. The Court has routinely made
reference to a liberalized stance when it comes to petitions raising issues of transcendental
importance to the country. Invariably, after some discussions, the Court would eventually grant
standing.28
In this particular case, respondent also questions the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a
candidate whose ability to reach out to the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct injury they may
suffer relative to their ability to carry out their tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in regard to the broadcast companies invoking the
injury that may be caused to their customers or the public - those who buy advertisements and the
people who rely on their broadcasts - what the Court said in White Light Corporation v. City of
Manila29 may dispose of the question. In that case, there was an issue as to whether owners of
establishments offering "wash-up" rates may have the requisite standing on behalf of their patrons'
equal protection claims relative to an ordinance of the City of Manila which prohibited "short-time" or
"wash-up" accommodation in motels and similar establishments. The Court essentially condensed
the issue in this manner: "[T]he crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights."30 The Court then
went on to hold:
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution. The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability in
Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-ininterest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim
that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see
that based on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.31
If in regard to commercial undertakings, the owners may have the right to assert a constitutional right
of their clients, with more reason should establishments which publish and broadcast have the
standing to assert the constitutional freedom of speech of candidates and of the right to information
of the public, not to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC
resolutions relative to the airtime limitations on political advertisements. This essentially consists in
computing the airtime on an aggregate basis involving all the media of broadcast communications
compared to the past where it was done on a per station basis. Thus, it becomes immediately
obvious that there was effected a drastic reduction of the allowable minutes within which candidates
and political parties would be able to campaign through the air. The question is accordingly whether
this is within the power of the COMELEC to do or not. The Court holds that it is not within the power
of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A.
No. 9006 [2001])32 - one hundred (120) minutes of television advertisement and one-hundred· eighty
(180) minutes for radio advertisement. For the 2004 elections, the respondent COMELEC
promulgated Resolution No. 652033 implementing the airtime limits by applying said limitation on a
per station basis.34 Such manner of determining airtime limits was likewise adopted for the 2007
elections, through Resolution No. 7767.35 In the 2010 elections, under Resolution No. 8758,36 the
same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615,
as amended by Resolution No. 9631, chose to aggregate the total broadcast time among the
different broadcast media, thus: Section 9. Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to
media time and space for their election propaganda during the campaign period subject to the
following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their broadcast advertisements or
election propaganda shall be, as follows:
For Candidates/Registered Not more than an aggregate total of one
Political parties for a National hundred (120) minutes of television
Elective Position advertising, whether appearing on national,
regional, or local, free or cable television, and
one hundred eighty (180) minutes of radio
advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation
For Candidates/Registered Not more than an aggregate total of sixty (60)
Political parties for a Local minutes of television advertising, whether
Elective Position appearing on national, regional, or local, free
or cable television, and ninety (90) minutes of
radio advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation.
In cases where two or more candidates or parties whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used,
or mentioned together in the broadcast election propaganda or advertisements, the length of time
during which they appear or are being mentioned or promoted will be counted against the airtime
limits allotted for the said candidates or parties and the cost of the said advertisement will likewise
be considered as their expenditures, regardless of whoever paid for the advertisements or to whom
the said advertisements were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent
Comelec without consultation with the candidates for the 2013 elections, affected parties such as
media organizations, as well as the general public. Worse, said change was put into effect without
explaining the basis therefor and without showing any data in support of such change. Respondent
Comelec merely maintained that such action "is meant to level the playing field between the
moneyed candidates and those who don i have enough resources," without particularizing the
empirical data upon which such a sweeping statement was based. This was evident in the public
hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that no empirical
data on he excesses or abuses of broadcast media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the
authority of the Commission is if we do not want to amplify and we think that the 120 or 180 is okay
we cannot be compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the law and the law
has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are
just raising our concern on the manner of regulation because as it is right now, there is a changing
mode or sentiments of the Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was there abuse of the
media in 2010, we were not informed Your Honor. So we would like to know what is the basis of the
sudden change in this limitation, Your Honor .. And law must have a consistent interpretation that
[is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is that if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission. Which means if previous Commissions
felt that expanding it should be part of our authority that was a valid exercise if we reduce it to what
is provided for by law which is 120-180 per medium, TV, radio, that is also within the law and that is
still within our prerogative as provided for by the Constitution. If you say we have to expose the
candidates to the public then I think the reaction should come, the negative reaction should come
from the candidates not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we have been
constantly (sic) as the resolution says and even in the part involved because you will be getting
some affirmative action time coming from the media itself and Comelec time coming from the media
itself. So we could like to be both involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually
to level the playing field. That should be the paramount consideration. If we allow everybody to make
use of all their time and all radio time and TV time then there will be practically unlimited use of the
mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse
of a (sic) political ads in the mass media that became the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took ... who had
the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No
amount of law or regulation can even level the playing filed (sic) as far as the economic station in life
of the candidates are concern (sic) our Honor.38
Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor
went on to allege that:
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a),
respondent Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the cliched explanation of respondent Comelec (i.e. leveling
the playing field) in its published statements which in itself is a mere reiteration of the rationale for
the enactment of the political ad ban of Republic Act No. 6646, and which has likewise been foisted
when said political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not have any other basis for coming up
with a new manner of determining allowable time limits except its own idea as to what should be the
maximum number of minutes based on its exercise of discretion as to how to level the playing field.
The same could be encapsulized in the remark of the COMELEC Chairman that "if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission."40
The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded
anon.
b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and
implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and statutorily authorized to
enforce election laws but it cannot exercise its powers without limitations - or reasonable basis. It
could not simply adopt measures or regulations just because it feels that it is the right thing to do, in
so far as it might be concerned. It does have discretion, but such discretion is something that must
be exercised within the bounds and intent of the law. The COMELEC is not free to simply change
the rules especially if it has consistently interpreted a legal provision in a particular manner in the
past. If ever it has to change the rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had already
promulgated the Resolution, the respondent did not fully explain or justify the change in computing
the airtime allowed candidates and political parties, except to make reference to the need to "level
the playing field." If the "per station" basis was deemed enough to comply with that objective in the
past, why should it now be suddenly inadequate? And, the short answer to that from the respondent,
in a manner which smacks of overbearing exercise of discretion, is that it is within the discretion of
the COMELEC. As quoted in the transcript, "the right to amplify is with the COMELEC. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?"41
There is something basically wrong with that manner of explaining changes in administrative rules.
For one, it does not really provide a good basis for change. For another, those affected by such rules
must be given a better explanation why the previous rules are no longer good enough. As the Court
has said in one case:
While stability in the law, particularly in the business field, is desirable, there is no demand that the
NTC slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides inconsistently with previous action, that it explain
thoroughly why a different result is warranted, or ?f need be, why the previous standards should no
longer apply or should be overturned. Such explanation is warranted in order to sufficiently establish
a decision as having rational basis. Any inconsistent decision lacking thorough, ratiocination in
support may be struck down as being arbitrary. And any decision with absolutely nothing to support
it is a nullity.42
What the COMELEC came up with does not measure up to that level of requirement and
accountability which elevates administrative rules to the level of respectability and acceptability.
Those governed by administrative regulations are entitled to a reasonable and rational basis for any
changes in those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in
the determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled
to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable airtime should be
based on the totality of possible broadcast in all television or radio stations. Senator Cayetano has
called our attention to the legislative intent relative to the airtime allowed - that it should be on a "per
station" basis.43
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No. 6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If under the previous law, no candidate was allowed
to directly buy or procure on his own his broadcast or print campaign advertisements, and that he
must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her
from that restriction and allowed him or her to broadcast time or print space subject to the limitations
set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law was not an
effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous
law on the right of suffrage and Philippine democracy, Congress decided to repeal such rule by
enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive nature of the
previous law, the sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA
6646. In view of the importance of their appeal in connection with the thrusts of the bill, I hereby
quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or
printed matter urging voters to vote for or against any candidate unless they hear the
names and addresses of the printed and payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-
poster, balloons and the like, of whatever size, shape, form or kind, advertising for or
against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral propaganda

gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or
materials, wallets, shirts, hats, bandannas, matches, cigarettes and the like, except
that campaign supporters accompanying a candidate shall be allowed to wear hats
and/or shirts or T-shirts advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or against any
candidate by means of cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge
airtime for campaign and other political purposes except as authorized in this Code
under the rules and regulations promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom
down by the representative of the Commission upon specific authority of the Commission." "SEC.
10. Common Poster Areas. - The Commission shall designate common poster areas in strategic
public places such as markets, barangay centers and the like wherein candidates can post, display
or exhibit election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan
private or civic organizations which the Commission may authorize whenever available, after due
notice and hearing, in strategic areas where it may readily be seen or read, with the heaviest
pedestrian and/or vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of charge, if feasible,
equitably and impartially among the candidates in the province, city or municipality. "SEC. 11.
Prohibite,d Forms of Election Propaganda. - In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or puolicly exhibit any election propaganda in any place, whether private
or public, except in common poster areas and/or billboards provided in the immediately preceding
section, at the candidate's own residence, or at the campaign headquarters of the candidate or
political party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8)
each may be displayed five (5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or give for free of charge print space or air time for
campaign or other political purposes except to the Commission as provided under Section 90 and 92
of Batas Pambansa Big. 881. Any mass media columnist, commentator, announcer or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign."
The repeal of the provision on the Common Poster Area implements the strong recommendations of
the Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by
the Supreme Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712,
31 March 1992. Here a unanimous Supreme Court ruled: The COMELEC's prohibition on the
posting of decals and stickers on "mobile" places whether public or private except [in] designated
areas provided for by the COMELEC itself is null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by which the candidates, political parties, citizens and
other stake holders in the periodic electoral exercise may be given a chance to fully explain and
expound on their candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard, the media is also given
a very important part in that undertaking of providing the means by which the political exercise
becomes an interactive process. All of these would be undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of the import of the legislative deliberations on the
adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per
candidate or political party aggregate total airtime limits on political advertisements and election
propaganda. This is evidenced by the dropping of the "per day per station" language embodied in
both versions of the House of Representatives and Senate bills in favour of the "each candidate" and
"not more than" limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether by purchase or by
donation, shall be limited to five (5) minutes per day in each television, cable television and radio
stations during the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates
shall have equal access to media space and time. The following guidelines may be amplified by the
COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide candidate whether by purchase
or donation shall not exceed a total of one (1) minute per day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature
intended the computation to be on per station basis, it could have left the original "per day per
station" formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent
that the COMELEC wants this Court to put on the final language of the law. If anything, the change
in language meant that the computation must not be based on a "per day" basis for each television
or radio station. The same could not therefore lend itself to an understanding that the total allowable
time is to be done on an aggregate basis for all television or radio stations. Clearly, the respondent
in this instance went beyond its legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement. As we held in Lakin, Jr. v. Commission on
Elections:47
The COMELEC, despite its role as the implementing arm of the Government in the enforcement and
administration of all laws and regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby.
The IRRs the COMELEC issued for that purpose should always be in accord with the law to be
implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should
remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative
authority must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs,
because an administrative agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not
add anything but merely reworded and rephrased the statutory provision did not persuade the Court.
With more reason here since the COMELEC not only reworded or rephrased the statutory provision -
it practically replaced it with its own idea of what the law should be, a matter that certainly is not
within its authority. As the Court said in Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a public official exercises power, not
rights. The government itself is merely an agency through which the will of the state is expressed
and enforced. Its officers therefore are likewise agents entrusted with the responsibility of
discharging its functions. As such there is no presumption that they are empowered to act. There
must be a delegation of such authority, either express or implied. In the absence of a valid grant,
they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be
sufficiently stressed. In the appropriate language of Chief Justice Hughes: "It must be conceded that
departmental zeal may not be permitted to outrun the authority conferred by statute." Neither the
high dignity of the office nor the righteousness of the motive then is an acceptable substitute.
Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the
constitutional guaranty of freedom of expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate
what is said. And where there is a need to reach a large audience, the need to access the means
and media for such dissemination becomes critical. This is where the press and broadcast media
come along. At the same time, the right to speak and to reach out would not be meaningful if it is just
a token ability to be heard by a few. It must be coupled with substantially reasonable means by
which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably restricts
the guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy."51 Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests, an American case
observed:
A restriction on the amount of money a person or group can spend on political communication during
a campaign necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience reached. This is because
virtually every means of communicating ideas in today's mass society requires the expenditure of
money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation
costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The
electorate's increasing dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to
a clearly identified candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude
all citizens and groups except candidates, political parties, and the institutional press from any
significant use of the most effective modes of communication. Although the Act's limitations on
expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain campaigning by
candidates who raise sums in excess of the spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an
unreasonable basis for determining the allowable air time that candidates and political parties may
avail of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have 120 minutes to utilize for his political
advertisements in television during the whole campaign period of 88 days, or will only have
81.81 seconds per day TV exposure allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal allocation, he will only have 27.27
seconds of airtime per network per day. This barely translates to 1 advertisement spot on a
30-second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's coverage,
it will be difficult for 1 advertising spot to make a sensible and feasible communication to the
public, or in political propaganda, to "make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to
barely three 30-second advertising spots in television on a daily basis using the same
assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila,
the commercial advertisements in television are viewed by only 39.2% of the average total
day household audience if such advertisements are placed with petitioner GMA, the leading
television network nationwide and in Mega Manila. In effect, under the restrictive aggregate
airtime limits in the New Rules, the three 30-second political advertisements of a candidate in
petitioner GMA will only be communicated to barely 40% of the viewing audience, not even
the voting population, but only in Mega Manila, which is defined by AGB Nielsen Philippines
to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna,
Rizal, Batangas and Pampanga. Consequently, given the voting population distribution and
the drastically reduced supply of airtime as a result of the New Rules' aggregate airtime
limits, a national candidate will be forced to use all of his airtime for political advertisements
in television only in urban areas such as Mega Manila as a political campaign tool to achieve
maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be
informed of the candidates in the national elections, and the said candidates also enjoy the
right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and
arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach
out and communicate with the people. Here, the adverted reason for imposing the "aggregate-
based" airtime limits - leveling the playing field - does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of government. And, this is specially
so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this
particular instance, what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on
broadcast time when we consider that the Philippines is not only composed of so many islands.
There are also a lot of languages and dialects spoken among the citizens across the country.
Accordingly, for a national candidate to really reach out to as many of the electorates as possible,
then it might also be necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express
himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most costeffective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability."54 If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak as
a means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its essential role in our democracy. The press was to serve
the governed, not the governors. The Government's power to censor the press was abolished so
that the press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and unrestrained
press can effectively expose deception in government."55
In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting
as a sounding board, the people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the people to determine
their own destiny through the choice of leaders they may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the people to be adequately informed for the
intelligent exercise of such birthright. It was said that:
x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever

may be the modality and form devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established authority.
He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when
called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with
utmost, with reasonable, liberality. x x x56 It has also been said that "[ c ]ompetition in ideas and
governmental policies is at the core of our electoral process and of the First Amendment
freedoms."57 Candidates and political parties need adequate breathing space - including the means
to disseminate their ideas. This could not be reasonably addressed by the very restrictive manner by
which the respondent implemented the time limits in regard to political advertisements in the
broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public
hearing on January 31, 2013 to explain what it had done, particularly on the aggregate-based air
time limits. This circumstance also renders the new regulation, particularly on the adoption of the
aggregate-based airtime limit, questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on airtime for political advertisements
are to be reckoned. As such there is a need for adequate and effective means by which they may be
adopted, disseminated and implemented. In this regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere administrative agency
under the Executive Department, rules which apply to the latter must also be deemed to similarly
apply to the former, not as a matter of administrative convenience but as a dictate of due process.
And this assumes greater significance considering the important and pivotal role that the COMELEC
plays in the life of the nation. Thus, whatever might have been said in Commissioner of Internal
Revenue v. Court of Appeals,58 should also apply mutatis mutandis to the COMELEC when it comes
to promulgating rules and regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of government we have adopted:
It should be understandable that when an administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially adds to or increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances under which it has been issued,
convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the
process the previous holdings of past Commissioners) or merely as construing Section 142(c)(l) of
the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope
Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes
bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied to locally manufactured cigarettes which at the time of
its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply
interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of
the requirements of notice, of hearing, and of publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any
governmental rule or regulation must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to the purpose or objective of the
government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as unreasonable. It
explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations
nationwide and 8 originating television stations (including its main transmitter in Quezon City)
which are authorized to dechain national programs for airing and insertion of local content
and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an
aggregate basis and considering that said Rules declare it unlawful in Section 7( d) thereof
for a radio, television station or other mass media to sell or give for free airtime to a
candidate in excess of that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is

unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or cable television station, or other
mass media, or any person making use of the mass media to sell or to give free of charge
print space or air time for campaign or election propaganda purposes to any candidate or
party in excess of the size, duration or frequency authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid administrative
or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all television and
radio stations, broadcast mass media organizations would surely encounter insurmountable
difficulties in monitoring the airtime minutes spent by the numerous candidates for various
elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that
there are 372 television stations and 398 AM and 800 FM radio stations nationwide as of
June 2012. In addition, there are 1, 113 cable TV providers authorized by the NTC to operate
within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor political
advertisements pursuant to the New Rules, petitioner OMA estimates that monitoring
television broadcasts of all authorized television station would involve 7,440 manhours per
day. To aggravate matters, since a candidate may also spend his/her broadcasting minutes
on cable TV, additional 281,040 manhours per day would have to be spent in monitoring the
various channels carried by cable TV throughout the Philippines. As far as radio broadcasts
(both AM and FM stations) are concerned, around 23,960 manhours per day would have to
be devoted by petitioner OMA to obtain an accurate and timely determination of a political
candidate's remaining airtime minutes. During the campaign period, petitioner OMA would
have to spend an estimated 27,494,720 manhours in monitoring the election campaign
commercials of the different candidates in the country. 1âw phi1
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further
estimates that it would need to engage and train 39,055 additional persons on an eight-hour
shift, and assign them all over the country to perform the required monitoring of radio,
television and cable TV broadcasts. In addition, it would likewise need to allot radio,
television, recording equipment and computers, as well as telecommunications equipment,
for this surveillance and monitoring exercise, thus imputing additional costs to the company.
Attached herewith are the computations explaining how the afore-said figures were derived
and the conservative assumptions made by petitioner OMA in reaching said figures, as
Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and effort would have to
be replicated by each and every radio station to ensure that they have properly monitored
around 33 national and more than 40,000 local candidates' airtime minutes and thus, prevent
any risk of administrative and criminal liability.60
The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear
more to be the result of a misappreciation of the real import of the regulation rather than a real and
present threat to its broadcast activities. The Court is more in agreement with the respondent when it
explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of
the allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates
of performance, and certificates of acceptance, or other analogous record on specified dates
(Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all
contract for advertising, promoting or opposing any political party or the candidacy of any person for
public office within five (5) days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real
time. GMA grossly exaggerates when it claims that the non-existent duty would require them to hire
and train an astounding additional 39,055 personnel working on eight-hour shifts all over the
country.61
The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for
the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third
paragraph of Section 9 (a). As revised, the provision now reads:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that
parties and candidates were afforded equal opportunities to promote their candidacy, the media
entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region (NCR), the Education and Information
Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within
twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence
1awp++i 1
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules."63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring
requirement, contending, among others, that it constitutes prior restraint. The Court finds otherwise.
Such a requirement is a reasonable means adopted by the COMELEC to ensure that parties and
candidates are afforded equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not unduly burdensome
and unreasonable, much less could it be characterized as prior restraint since there is no restriction
on dissemination of information before broadcast. Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in issue was worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. To determine whether the appearance or guesting in a program is
bona fide, the broadcast stations or entities must show that (1) prior approval of the Commission
was secured; and (2) candidates and parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-
spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of
these Rules.64
Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC
had done - to modify the requirement from "prior approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature
of a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair
elections without having to undertake any chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it
similarly concludes that the "right to reply" provision is reasonable and consistent with the
constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:
SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona
fide candidates shall have the right to reply to charges published or aired against them. The reply
shall be given publicity by the newspaper, television, and/or radio station which first printed or aired
the charges with the same prominence or in the same page or section or in the same time slot as the
first statement.
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the
right to reply by submitting within a nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed enumeration of the circumstances and
occurrences which warrant the invocation of the right to reply and must be accompanied by
supporting evidence, such a copy of the publication or recording of the television or radio broadcast,
as the case may be. If the supporting evidence is not yet available due to circumstances beyond the
power of the claimant, the latter shall supplement his claim as soon as the supporting evidence
becomes available, without delay on the part of the claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to the media outlet concerned prior to the filing of the
claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from
receipt thereof, including supporting evidence, and if circumstances warrant, give notice to the media
outlet involved for appropriate action, which shall, within forty-eight ( 48) hours, submit its comment,
answer or response to the RED, explaining the action it has taken to address the claim. The media
outlet must likewise furnish a copy of the said comment, answer or response to the claimant invoking
the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she may file the
appropriate petition and/or complaint before the Commission on Elections or its field offices, which
shall be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground
of prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or
of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests -
the constitutional mandate granting candidates the right to reply and the inviolability of the
constitutional freedom of expression, speech, and the press - will show that the Right to
Reply, as provided for in the Assailed Resolution, is an impermissible restraint on these
fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test)
with respect to the present controversy will show that the Constitution does not tilt the
balance in favor of the Right to Reply provision in the Assailed Resolution and the supposed
governmental interest it attempts to further.65
The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible
elections, a task addressed to the COMELEC to provide for a right to reply.66 Given that express
constitutional mandate, it could be seen that the Fundamental Law itself has weighed in on the
balance to be struck between the freedom of the press and the right to reply. Accordingly, one is not
merely to see the equation as purely between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible elections would
necessarily have to be factored in trying to see where the balance lies between press and the
demands of a right-to-reply.
Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme Court decision with regard
to broadcasting, right to reply requirements, and the limitations on speech:
We have long recognized that each medium of expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of
all forms of communication, it is broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except under laws that carefully define
and narrow official discretion, a broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public interest, convenience, and
necessity." Similarly, although the First Amendment protects newspaper publishers from being
required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418
US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the
contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,
395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the present case. First,
the broadcast media have established a uniquely pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented over the airwaves confronts the citizen not only in
public, but also in the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L
Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or viewer from unexpected program content. To say
that one may avoid further offense by turning off the radio when he hears indecent language is like
saying that the remedy for an assault is to run away after the first blow. One may hang up on an
indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm
that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although
Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast
could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be
withheld from the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material available to children.
We held in Ginsberg v. New York, 390 US 629, that the government's interest in the "well-being of its
youth" and in supporting "parents' claim to authority in their own household" justified the regulation of
otherwise protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech and the press over
so many other values of society do not readily lend itself to this particular matter. Instead, additional
weight should be accorded on the constitutional directive to afford a right to reply. If there was no
such mandate, then the submissions of petitioners may more easily commend themselves for this
Court's acceptance. But as noted above, this is not the case. Their arguments simplistically provide
minimal importance to that constitutional command to the point of marginalizing its importance in the
equation.
In fine, when it comes to election and the exercise of freedom of speech, of expression and of the
press, the latter must be properly viewed in context as being necessarily made to accommodate the
imperatives of fairness by giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of
Resolution No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of the remaining provisions of Resolution No. 9615,
as amended by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is
hereby made PERMANENT.
SO ORDERED.
REPUBLIC ACT NO. 10173
Section 5. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be
construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the
publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general
circulation protection from being compelled to reveal the source of any news report or information
appearing in said publication which was related in any confidence to such publisher, editor, or
reporter.
REPUBLIC ACT No. 1477
An Act Amending Section One of Republic Act Numbered Fifty-Three, Entitled "An Act to
Exempt the Publisher, Editor, Columnist or Reporter of Any Publication from Revealing the
Source of Published News or Information Obtained in Confidence"
Be it enacted by the Senate and House of Representatives of the Philippine Congress Assembled:
Section 1. Section one of Republic Act Numbered Fifty-three is amended to read as follows:
"Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor,
columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation
cannot be compelled to reveal the source of any news-report or information appearing in said
publication which was related in confidence to such publisher, editor or reporter unless the court or a
House or committee of Congress finds that such revelation is demanded by the security of the
State."
Section 2. This Act shall take effect upon its approval.
Approved: June 15, 1956.
REPUBLIC ACT NO. 53

AN ACT TO EXEMPT THE PUBLISHER, EDITOR OR REPORTER OF ANY PUBLICATION FROM REVEALING THE
SOURCE OF PUBLISHED NEWS OR INFORMATION OBTAINED IN CONFIDENCE
Section 1. The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical
of general circulation cannot be compelled to reveal the source of any news-report or information
appearing in said publication which was related in confidence to such publisher, editor or reporter,
unless the court or a House or committee of Congress finds that such revelation is demanded by the
interest of the State.
Sec. 2. All provisions of law or rules of court inconsistent with this Act are hereby repealed or modified
accordingly.
Sec. 3. This Act shall take effect upon its approval.
G.R. No. 127930 December 15, 2000
MIRIAM COLLEGE FOUNDATION, INC., petitioner,

vs.
HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO,
ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD
GARY RENACIDO, respondents.
KAPUNAN, J.:
"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young readers," and devoid
of all moral values."1 This was now some members of the Miriam College community allegedly
described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College's
school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in
the Chi-Rho included:
. . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry Renacido . . .
Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo
players who, one evening, after their performance went to see a bold show in a place called
"Flirtation". This was the way the author described the group's exposure during that stage
show:
"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang
bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang
pinananabikan nuong makalawa pa, susog naman ang tropa.
". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee. Nakasuot
lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong.
Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng
"Goodbye" ng Air Supply. Dahan-dahan ang kanyang mga malalantik at mapang-akit
na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-
dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit
para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar.
"Kaskas mo babe, sige . . . kaskas."
Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa
harap niya'y nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong tela. Hindi
nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng
kanyang hita. Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang
pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-putol ang
kanyang hininga nang kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo
naghingalo siya nang kabayuhin ito ng dahan dahan . . . Pabilis ng pabilis.'
The author further described Mike's responses to the dancer as follows (quoted in
part):
. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang

ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang
dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"
Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan

siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim
ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring
sagupaan ng libog. Ang alam lang niya ay nanlata na siya."
After the show the group went home in a car with the bokalista driving. A pedestrian
happened to cross the street and the driver deliberately hit him with these words:
"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng
sabog nilang drayber/bokalista."
The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!!
Put . . .!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title
of "Libog at iba pang tula."
In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko,
nakakagulat ang aming pamagat." Jerome then proceeded to write about previous reactions
of readers to women-writers writing about matters erotic and to gay literature. He justified the
Magazine's erotic theme on the ground that many of the poems passed on to the editors
were about "sekswalidad at iba't ibang karanasan nito." Nakakagulat ang tapang ng mga
manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon pang katulad ng
Miriam!"
Mr. Gomez quoted from a poem entitled "Linggo" written by himself:
may mga palangganang nakatiwangwang -
mga putang biyak na sa gitna,
'di na puwedeng paglabhan,
'di na maaaring pagbabaran . . ."
Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang ito
namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na "Libog at iba
pang Tula." He finished "Foreplay" with these words: "Dahil para saan pa ang libog kung
hindi ilalabas?"
The cover title in question appears to have been taken from a poem written by Relly Carpio
of the same title. The poem dealt on a woman and a man who met each other, gazed at
each other, went up close and "Naghalikan, Shockproof." The poem contained a background
drawing of a woman with her two mammary and nipples exposed and with a man behind
embracing her with the woman in a pose of passion-filled mien.
Another poem entitled 'Virgin Writes Erotic' was about a man having fantasies in his sleep.
The last verse said: "At zenith I pull it out and find myself alone in this fantasy." Opposite the
page where this poem appeared was a drawing of a man asleep and dreaming of a naked
woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a
hospital bed with one end rolled up). The woman's right nipple can be seen clearly. Her
thighs were stretched up with her knees akimbo on the bed.
In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle Campanario.
It was about a young student who has a love-selection problem: ". . . Kung sinong pipiliin:
ang teacher kong praning, o ang boyfriend kong bading." The word "praning" as the court
understands it, refers to a paranoid person; while the word "bading" refers to a sward or
"bakla" or "badidang". This poem also had an illustration behind it: of a young girl with large
eyes and sloping hair cascading down her curves and holding a peeled banana whose top
the illustrator shaded up with downward-slanting strokes. In the poem, the girl wanted to eat
banana topped by peanut butter. In line with Jerome's "Foreplay" and by the way it was
drawn that banana with peanut butter top was meant more likely than not, to evoke a
spiritedly mundane, mental reaction from a young audience.
Another poem entitled "Malas ang Tatlo" by an unknown author went like this:
'Na picture mo na ba
no'ng magkatabi tayong dalawa
sa pantatluhang sofa -
ikaw, the legitimate asawa
at ako, biro mo, ang kerida?
tapos, tumabi siya, shit!
kumpleto na:
ikaw, ako at siya
kulang na lang, kamera."
A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox
(lobo) yearning for "karneng sariwa, karneng bata, karneng may kalambutan . . . isang bahid
ng dugong dalaga, maamo't malasa, ipahid sa mga labing sakim sa romansa' and ended
with 'hinog na para himukin bungang bibiyakin."2
Following the publication of the paper and the magazine, the members of the editorial board,3 and
Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by Dr. Aleli
Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4 November 1994
stated:
This is to inform you that the letters of complain filed against you by members of the Miriam
Community and a concerned Ateneo grade five student have been forwarded to the
Discipline Committee for inquiry and investigation. Please find enclosed complaints.
As expressed in their complaints you have violated regulations in the student handbook
specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j,
page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37.
You are required to submit a written statement in answer to the charge/s on or before the
initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at
the DSA Conference Room.4
None of the students submitted their respective answers. They instead requested Dr. Sevilla to
transfer the case to the Regional Office of the Department of Education, Culture and Sports (DECS)
which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the
case.5
In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written
answers.
In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter6 to the Discipline
Committee reiterating his clients' position that said Committee had no jurisdiction over them.
According to Atty. Valmonte, the Committee was "trying to impose discipline on his clients on
account of their having written articles and poems in their capacity as campus journalists." Hence, he
argued that "what applies is Republic Act No. 7079 The Campus Journalism Act and its
implementing rules and regulations." He also questioned the partiality of the members of said
Committee who allegedly "had already articulated their position" against his clients.
The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board,
after a review of the Discipline Committee's report, imposed disciplinary sanctions upon the
students, thus:
1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th

year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February 2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year student and
could graduate as summa cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including diploma. She is an
Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He is a 2nd year student.
He wrote the fiction story "Kaskas";
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd year and
wrote the poem "Libog";
10. Jerome Gomez Dismissed and given transfer credentials. He is in 3rd year. He
wrote the foreword "Foreplay" to the questioned Anthology of
Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year student and
art editor of Chi-Rho.7
The above students thus filed a petition for prohibition and certiorari with preliminary
injunction/restraining order before the Regional Trial Court of Quezon City questioning the
jurisdiction of the Discipline Board of Miriam College over them.
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr.,
issued an order denying the plaintiffs' prayer for a Temporary Restraining Order. It held:
There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes
school Administrators from exercising jurisdiction over cases of the nature involved in the
instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The
DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over
disciplinary cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it
merely prescribes for purposes of internal administration which DECS officer or body shall
hear cases arising from R A. 7079 if and when brought to it for resolution. The said order
never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.8
The students thereafter filed a "Supplemental Petition and Motion for Reconsideration." The
College followed with its Answer.
Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of
preliminary injunction.
ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of
preliminary injunction issue enjoining the defendants, including the officers and members of
the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and
the officers and members of the Security Department, Division, or Security Agency securing
the premises and campus of Miriam College Foundation, Inc. from:
1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders

complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido;
(c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise
allowing the defendants to impose lesser sanctions on aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all
eleven of them) from taking tests or exams and entering the Miriam campus for such
purpose as extended to all students of Miriam College Foundation, Inc.; neither
should their respective course or subject teachers or professors withhold their
grades, including final grades, if and when they meet the requirements similarly
prescribed for all other students, this current 2nd Semester of 1994-95.
The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario,
Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall
not be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have
the right to receive her diploma, but defendants are not hereby prevented from refusing her
the privilege of walking on the graduation stage so as to prevent any likely public tumults.
The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos
(P4,000.00) each.
SO ORDERED.9
Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995,
the RTC dismissed the petition, thus:
4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch
as both parties do not want this court to assume jurisdiction here then this court will not be
more popish than the Pope and in fact is glad that it will have one more case out of its
docket.
ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties
going to another forum.
All orders heretofore issued here are hereby recalled and set aside.
SO ORDERED.10
The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this
Court through a petition for certiorari and prohibition of preliminary injunction/restraining
order11 questioning the Orders of the RTC dated 10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for
disposition.12 On 19 May 1995, the CA issued a resolution stating:
The respondents are hereby required to file comment on the instant petition and to show
cause why no writ of preliminary injunction should be issued, within ten (10) days from notice
hereof, and the petitioners may file reply thereto within five (5) days from receipt of former's
comment.
In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.
SO ORDERED.13
In its Decision dated 26 September 1996, respondent court granted the students' petition. The CA
declared the RTC Order dated 22 February 1995, as well as the students' suspension and dismissal,
void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following issues:
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students.
(3) The power of petitioner to suspend or dismiss respondent students.
(4) The jurisdiction of petitioner over the complaints against the students.
We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the
manner of the imposition thereof. These issues, though touched upon by the parties in the
proceedings below, were not fully ventilated therein.
Petitioner asserts the Court of Appeals found the case moot thus:
While this petition may be considered moot and academic since more than one year have
passed since May 19, 1995 when this court issued a temporary restraining order enjoining
respondents from enforcing the dismissal and suspension on petitioners . . .14
Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded
with the adjudication of the merits of the case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a
preliminary injunction. The records do not show that the CA ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to perform to refrain from
performing a particular act or acts.15 As an extraordinary remedy, injunction is calculated to preserve
or maintain the status quo of things and is generally availed of to prevent actual or threatened acts,
until the merits of the case can be heard.16 A preliminary injunction persists until it is dissolved or
until the termination of the action without the court issuing a final injunction.
The basic purpose of restraining order, on the other hand, is to preserve the status quo until the
hearing of the application for preliminary injunction.17 Under the former 5, Rule 58 of the Rules of
Court, as amended by 5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary
restraining order with a limited life of twenty days from date of issue.18 If before the expiration of the
20-day period the application for preliminary injunction is denied, the temporary order would thereby
be deemed automatically vacated. If no action is taken by the judge on the application for preliminary
injunction within the said 20 days, the temporary restraining order would automatically expire on the
20th day by the sheer force of law, no judicial declaration to that effect being necessary.19 In the
instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically
expired under the aforesaid provision of the Rules of Court.20
This limitation as to the duration of the temporary restraining order was the rule prevailing when the
CA issued its TRO dated 19 May 1995.21 By that time respondents Elizabeth Valdezco and Joel Tan
had already served their respective suspensions. The TRO was applicable only to respondents
Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of
whom were dismissed, and respondent Camille Portugal whose graduation privileges were withheld.
The TRO, however, lost its effectivity upon the lapse of the twenty days. It can hardly be said that in
that short span of time, these students had already graduated as to render the case moot.
Either the CA was of the notion that its TRO was effective throughout the pendency of the case or
that what is issued was a preliminary injunction. In either case, it was error on the part of the CA to
assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was
complied with. A case becomes moot and academic when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the merits.22 To determine
the moot character of a question before it, the appellate court may receive proof or take notice of
facts appearing outside the record.23 In the absence of such proof or notice of facts, the Court of
Appeals should not have assumed that its TRO was enforced, and that the case was rendered moot
by the mere lapse of time.
Indeed, private respondents in their Comment herein24 deny that the case has become moot since
Miriam refused them readmission in violation of the TRO. This fact is unwittingly conceded by Miriam
itself when, to counter this allegation by the students, it says that private respondents never sought
readmission after the restraining order was issued.25 In truth, Miriam relied on legal technicalities to
subvert the clear intent of said order, which states:
In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.
Petitioner says that the above order is "absurd" since the order "incorrectly directs public
respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not
to dismiss or suspend the students."26
We do not agree. Padua vs. Robles27 lays down the rules in construing judgments. We find these
rules to be applicable to court orders as well:
The sufficiency and efficacy of a judgment must be tested by its substance rather than its
form. In construing a judgment, its legal effects including such effects that necessarily follow
because of legal implications, rather than the language used, govern. Also, its meaning,
operation, and consequences must be ascertained like any other written instrument. Thus, a
judgment rests on the intent of the court as gathered from every part thereof, including the
situation to which it applies and attendant circumstances. (Emphasis supplied.)
Tested by such standards, we find that the order was indeed intended for private respondents (in the
appellate court) Miriam College, et al., and not public respondent Judge. In dismissing the case, the
trial judge recalled and set aside all orders it had previously issued, including the writ of preliminary
injunction. In doing so, the trial court allowed the dismissal and suspension of the students to remain
in force. Thus, it would indeed be absurd to construe the order as being directed to the RTC.
Obviously, the TRO was intended for Miriam College.
True, respondent-students should have asked for a clarification of the above order. They did not.
Nevertheless, if Miriam College found the order "absurd," then it should have sought a clarification
itself so the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took
advantage of the supposed vagueness of the order and used the same to justify its refusal to
readmit the students.
As Miriam never readmitted the students, the CA's ruling that the case is moot has no basis. How
then can Miriam argue in good faith that the case had become moot when it knew all along that the
facts on which the purported moot character of the case were based did not exist? Obviously, Miriam
is clutching to the CA's wrongful assumption that the TRO it issued was enforced to justify the
reversal of the CA's decision.
Accordingly, we hold that the case is not moot, Miriam's pretensions to the contrary notwithstanding.
II
"To uphold and protect the freedom of the press even at the campus level and to promote the
development and growth of campus journalism as a means of strengthening ethical values,
encouraging critical and creative thinking, and developing moral character and personal discipline of
the Filipino youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT
PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND
FOR OTHER PURPOSES,"29 the law contains provisions for the selection of the editorial board30 and
publication adviser,31 the funding of the school publication,32 and the grant of exemption to donations
used actually, directly and exclusively for the promotion of campus journalism from donor's or gift
tax.33
Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its
members. Thus, the second paragraph of Section 4 states that "(o)nce the publication is established,
its editorial board shall freely determine its editorial policies and-manage the publication's funds."
Section 7, in particular, provides:
A member of the publication staff must maintain his or her status as student in order to retain
membership in the publication staff. A student shall not be expelled or suspended solely on
the basis of articles he or she has written, or on the basis of the performance of his or her
duties in the student publication.
Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary for the
effective implementation of this Act."34 Pursuant to said authority, then DECS Secretary Armand
Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that:
GENERAL PROVISIONS
SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and
facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No.
7079. It shall also act on cases on appeal brought before it.
The DECS regional office shall have the original jurisdiction over cases as a result of the decisions,
actions and policies of the editorial board of a school within its area of administrative responsibility. It
shall conduct investigations and hearings on the these cases within fifteen (15) days after the
completion of the resolution of each case. (Emphasis supplied.)
The latter two provisions of law appear to be decisive of the present case.
It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the
students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as
grounds therefor, that:
DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF

DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.35
II
DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD

DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND,
THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL
DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS.36
Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for
the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction
over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam
Disciplinary Board, which would thereby deprive them of due process. This contention, if true, would
constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial
court. These were the same grounds invoked by the students in their refusal to answer the charges
against them. The issues were thus limited to the question of jurisdiction - a question purely legal in
nature and well within the competence and the jurisdiction of the trial court, not the DECS Regional
Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global
Communications, Inc. vs. Relova.37
Absent such clarity as to the scope and coverage of its franchise, a legal question arises
which is more appropriate for the judiciary than for an administrative agency to resolve. The
doctrine of primary jurisdiction calls for application when there is such competence to act on
the part of an administrative body. Petitioner assumes that such is the case. That is to beg
the question. There is merit, therefore, to the approach taken by private respondents to seek
judicial remedy as to whether or not the legislative franchise could be so interpreted as to
enable the National Telecommunications Commission to act on the matter. A jurisdictional
question thus arises and calls for an answer.
However, when Miriam College in its motion for reconsideration contended that the DECS Regional
Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope,"
dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have
one more case out of its docket." We remind the trial court that a court having jurisdiction of a case
has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to
render a decision in a case properly submitted to it.38 Accordingly, the trial court should not have
dismissed the petition without settling the issues presented before it.
III
Before we address the question of which between the DECS Regional Office and Miriam College
has jurisdiction over the complaints against the students, we first delve into the power of either to
impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction
would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College
had the power to impose sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the
expulsion or suspension of a student solely on the basis of articles he or she has written.
A.
Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic
freedom. This institutional academic freedom includes the right of the school or college to decide for
itself, its aims and objectives, and how best to attain them free from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint.39 The essential freedoms
subsumed in the term "academic freedom" encompasses the freedom to determine for itself on
academic grounds:
(1) Who may teach,

(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.40
The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it
shall be taught." A school certainly cannot function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational institution requires
rules and regulations necessary for the maintenance of an orderly educational program and
the creation of an educational environment conducive to learning. Such rules and regulations
are equally necessary for the protection of the students, faculty, and property.41
Moreover, the school has an interest in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling discipline, the school teaches discipline.
Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.
All educational institutions shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of citizenship, strengthen ethical and
spiritual values, develop moral character and personal discipline, encourage critical and
creative thinking, broaden scientific and technological knowledge, and promote vocational
efficiency.42
In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its
responsibility to help its students "grow and develop into mature, responsible, effective and worthy
citizens of the community."43
Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be
admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also
has the right to determine whom to exclude or expel, as well as upon whom to impose lesser
sanctions such as suspension and the withholding of graduation privileges.
Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of students found guilty of
hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that the immediate reinstatement of respondent

students who have been investigated and found guilty by the Disciplinary Board to have
violated petitioner university's disciplinary rules and standards will certainly undermine the
authority of the administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom which has
been enshrined in the 1935, 1973 and the present 1987 Constitution.45
Tracing the development of academic freedom, the Court continued:

Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary
proposition that admission to an institution of higher learning is discretionary upon a school,
the same being a privilege on the part of the student rather than a right. While under the
Education Act of 1982, students have a right "to freely choose their field of study, subject to
existing curricula and to continue their course therein up to graduation," such right is subject,
as all rights are, to the established academic and disciplinary standards laid down by the
academic institution.
"For private schools have the right to establish reasonable rules and regulations for the
admission, discipline and promotion of students. This right . . . extends as well to parents . . .
as parents under a social and moral (if not legal) obligation, individually and collectively, to
assist and cooperate with the schools."
Such rules are "incident to the very object of incorporation and indispensable to the
successful management of the college. The rules may include those governing student
discipline." Going a step further, the establishment of the rules governing university-student
relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival.
Within memory of the current generation is the eruption of militancy in the academic groves
as collectively, the students demanded and plucked for themselves from the panoply of
academic freedom their own rights encapsulized under the rubric of "right to education"
forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to
learn under the rules laid down by the school.
. . . It must be borne in mind that universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the
development, or flowering if you will, of the total man.
In essence, education must ultimately be religious - not in the sense that the founders or
charter members of the institution are sectarian or profess a religious ideology. Rather, a
religious education, as the renowned philosopher Alfred North Whitehead said, is 'an
education which inculcates duty and reverence.' It appears that the particular brand of
religious education offered by the Ateneo de Manila University has been lost on the
respondent students.
Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila
University as their own a minute longer, for they may foreseeably cast a malevolent influence
on the students currently enrolled, as well as those who come after them. 1avv phi 1
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that:
"The maintenance of a morally conducive and orderly educational environment will be
seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to
admit petitioner's children and to reintegrate them to the student body." Thus, the decision of
petitioner university to expel them is but congruent with the gravity of their misdeeds.46
B.
Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational
institution:
The State recognizes the complementary roles of public and private institutions in the
educational system and shall exercise reasonable supervision and regulation of all
educational institutions.
As may be gleaned from the above provision, such power to regulate is subject to the requirement
of reasonableness. Moreover, the Constitution allows merely the regulation and supervision of
educational institutions, not the deprivation of their rights.
C.
In several cases, this Court has upheld the right of the students to free speech in school premises. In
the landmark case of Malabanan vs. Ramento,47 students of the Gregorio Araneta University
Foundation, believing that the merger of the Institute of Animal Science with the Institute of
Agriculture would result in the increase in their tuition, held a demonstration to protest the proposed
merger. The rally however was held at a place other than that specified in the school permit and
continued longer than the time allowed. The protest, moreover, disturbed the classes and caused
the stoppage of the work of non-academic personnel. For the illegal assembly, the university
suspended the students for one year. In affirming the students' rights to peaceable assembly and
free speech, the Court through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US
Supreme Court in Tinker v. Des Moines School District.48
Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to
do so. They enjoy like the rest of the citizens the freedom to express their views and
communicate their thoughts to those disposed to listen in gatherings such as was held in this
case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines
Community School District, 'shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.' While, therefore, the authority of educational institutions
over the conduct of students must be recognized, it cannot go so far as to be violative of
constitutional safeguards. On a more specific level there is persuasive force to this Fortas
opinion. "The principal use to which the schools are dedicated is to accommodate students
during prescribed hours for the purpose of certain types of activities. Among those activities
is personal intercommunication among the students. This is not only inevitable part of the
educational process. A student's rights, therefore, do not embrace merely the classroom
hours. When he is in the cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without 'materially and substantially interfering with the
requirements of appropriate discipline in the operation of the school' and without colliding
with the rights of others. . . . But conduct by the student, in class or out of it, which for any
reason - whether it stems from time, place, or type of behavior - materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech.49
The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,50 Arreza vs.
Gregorio Araneta University Foundation,51 and Non vs. Dames II.52
The right of the students to free speech in school premises, however, is not absolute. The right to
free speech must always be applied in light of the special characteristics of the school
environment.53 Thus, while we upheld the right of the students to free expression in these cases, we
did not rule out disciplinary action by the school for "conduct by the student, in class or out of it,
which for any reason - whether it stems from time, place, or type of behavior - which materially
disrupts classwork or involves substantial disorder or invasion of the rights of others."54 Thus,
in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the speeches by the student
leaders. That there would be a vigorous presentation of view opposed to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture was to be expected.
There was no concealment of the fact that they were against such a move as it confronted
them with a serious problem ("isang malaking suliranin.") They believed that such a merger
would result in the increase in tuition fees, an additional headache for their parents ("isa na
naman sakit sa ulo ng ating mga magulang.") If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances extremely critical at times, even vitriolic,
were let loose, that is quite understandable. Student leaders are hardly the timid, different
types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally
they speak in the guarded and judicious language of the academe. At any rate, even a
sympathetic audience is not disposed to accord full credence to their fiery exhortations. They
take into account the excitement of the occasion, the propensity of speakers to exaggerate,
the exuberance of youth. They may give the speakers the benefit of their applause, but with
the activity taking place in the school premises and during the daytime, no clear and present
danger of public disorder is discernible. This is without prejudice to the taking of disciplinary
action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."55
It is in the light of this standard that we read Section 7 of the Campus Journalism Act. Provisions of
law should be construed in harmony with those of the Constitution; acts of the legislature should be
construed, wherever possible, in a manner that would avoid their conflicting with the fundamental
law.56 A statute should not be given a broad construction if its validity can be saved by a narrower
one.57 Thus, Section 7 should be read in a manner as not to infringe upon the school's right to
discipline its students. At the same time, however, we should not construe said provision as to
unduly restrict the right of the students to free speech. Consistent with jurisprudence, we read
Section 7 of the Campus Journalism Act to mean that the school cannot suspend or expel a student
solely on the basis of the articles he or she has written, except when such article materially disrupt
class work or involve substantial disorder or invasion of the rights of others.
IV.
From the foregoing, the answer to the question of who has jurisdiction over the cases filed against
respondent students becomes self-evident. The power of the school to investigate is an adjunct of its
power to suspend or expel. It is a necessary corollary to the enforcement of rules and regulations
and the maintenance of a safe and orderly educational environment conducive to learning.58 That
power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions
of higher learning guaranteed by the Constitution. We therefore rule that Miriam College has the
authority to hear and decide the cases filed against respondent students. 1âwphi1.nêt
WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner
Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has long
lapsed.
SO ORDERED.
BATAS PAMBANSA BLG. 880
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY
TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES
Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985."
Section 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.
Section 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 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.
Section 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.
Section 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.
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application 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.
Section 7. Use of public thoroughfare - 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.
Section 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;
(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.
Section 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) meter away from the area of activity ready to
maintain peace and order at all times.
Section 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.
Section 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 disturbances 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 branch of the peace during the public assembly
shall not constitute a group for dispersal.
Section 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.
Section 13. Prohibited acts - The following shall constitute violations of this 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.
Section 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.
Section 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 of this Act.
Section 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.
Section 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.
Section 18. Effectivity - This Act shall take effect upon its approval.
Approved, October 22, 1985.

G.R. No. 175241 February 24, 2010
INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose

Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L. Roque and Joel R.
Butuyan appeal the June 28, 2006 Decision2 and the October 26, 2006 Resolution3 of the Court of
Appeals that found no grave abuse of discretion on the part of respondent Jose "Lito" Atienza, the
then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the
IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed
with the Office of the City Mayor of Manila a letter application4 for a permit to rally at the foot of
Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers
and members, law students and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on given date but
indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP
received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari
docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved within 24 hours from its
filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R.
No. 172951 which assailed the appellate court’s inaction or refusal to resolve the petition within the
period provided under the Public Assembly Act of 1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively,
denied the petition for being moot and academic, denied the relief that the petition be heard on the
merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt.
Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners
from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the
peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No. 06I-12501,
against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the
permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance,
that the petition became moot and lacked merit. The appellate court also denied petitioners’ motion
for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed his
Comment of November 18, 2008 which merited petitioners’ Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the modification of the venue in
IBP’s rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act
and violates their constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the
passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in
cases where supervening events had made the cases moot, this Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and
public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise
moot if it is capable of repetition, yet evading review.9
In the present case, the question of the legality of a modification of a permit to rally will arise each
time the terms of an intended rally are altered by the concerned official, yet it evades review, owing
to the limited time in processing the application where the shortest allowable period is five days prior
to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue
at hand.
Respecting petitioners’ argument that the issues presented in CA-G.R. SP No. 94949 pose a
prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the
same in the present case.
Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend
proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be
made only upon petition and not at the instance of the judge or the investigating prosecutor,11 the
latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being
filed. Since a petition to suspend can be filed only in the criminal action,12 the determination of the
pendency of a prejudicial question should be made at the first instance in the criminal action, and not
before this Court in an appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of
discretion on the part of respondent because the Public Assembly Act does not categorically require
respondent to specify in writing the imminent and grave danger of a substantive evil which warrants
the denial or modification of the permit and merely mandates that the action taken shall be in writing
and shall be served on respondent within 24 hours. The appellate court went on to hold that
respondent is authorized to regulate the exercise of the freedom of expression and of public
assembly which are not absolute, and that the challenged permit is consistent with Plaza Miranda’s
designation as a freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [sic] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall, be immediately
executory.
(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring
supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost deference and
respect. It is not to be limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it
is a necessary consequence of our republican institutions and complements the right of free speech.
To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of the people peaceably
to assemble and to petition the government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise
of this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified
the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act
with the pertinent portion of the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid objections to the grant
of the permit or to its grant but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.16 (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when he did not
immediately inform the IBP who should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant the changing of the venue. The
opportunity to be heard precedes the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit. 1avv phi1
Respondent failed to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption – especially so where
the assembly is scheduled for a specific public place – is that the permit must be for the assembly
being held there. The exercise of such a right, in the language of Justice Roberts, speaking for
the American Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place."17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It
smacks of whim and caprice for respondent to just impose a change of venue for an assembly that
was slated for a specific public place. It is thus reversible error for the appellate court not to have
found such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to the applicant."18
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
94949 are REVERSED. The Court DECLARES that respondent committed grave abuse of discretion
in modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola
Bridge to Plaza Miranda.
SO ORDERED.
This web page features the full text of
A.M. 98-7-02-SC dated July 7, 1998 .
A.M. 98-7-02-SC dated July 7, 1998
Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies
and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts
En Banc.
Considering the inherent and regulatory power of the courts to control their proceedings in order to
permit the fair and impartial administration of justice and the constitutional rights, pleading, practice,
and procedure in all courts, and complementing further the Per Curiam Resolution of the Court in the
case of Nestle Philippines, Inc. v. Hon. Augusto S. Sanchez, et al., dated September 30, 1987, the Court
resolves to adopt formally the following policy and procedural guidelines, regarding the conduct of
demonstrations, pickets, rallies and other similar gatherings in the vicinity of the grounds and adjacent
areas of the Supreme Court and all other courts:
1. Courts are the defenders of the people's rights, especially their freedom of expression and assembly.
Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in
our scheme of constitutional values.
These freedoms, however, are not absolute. The right of a citizen to use the streets for communication
of views on national questions must be balanced with the need of our courts for an atmosphere that will
enable them to dispense justice free from bias and unnecessary pressure. The courts would not exist
and survive to protect the people's most revered rights if they were unable to preserve the integrity of
judicial proceedings and the dignity of the institution from all forms of distracting, degrading and
prejudicial influences that threaten the fair and orderly administration of justice.
2. Demonstrators, picketers, rallyists and all other similar persons are enjoined from holding any activity
on the sidewalks and streets adjacent to, in front of, or within a radius of two hundred (200) meters
from, the outer boundary of the Supreme Court Building, any Hall of Justice, and any other building that
houses at least one (1) court sala. Such activities unquestionably interrupt and hamper the working
condition in the salas, offices and chambers of the courts.
3. Demonstrators, picketers, rallyists and their sympathizers must keep all public thoroughfares free
and unimpeded to allow the smooth flow of vehicular and pedestrian traffic. At no time should ingress
to and egress from the premises of the courts and the offices of the courts and the offices of the
justices, judges, and court officials and employees be obstructed.
4. Demonstrators, picketers, rallyists and their sympathizers are prohibited from camping out on the
streets, sidewalks or pavement adjacent to, in front of, or within a radius of two hundred (200) meters
from, the outer boundary of the Supreme Court Building, any Hall of Justice, and any other building that
houses at least one (1) court sala. No provisional shelters and kitchens, pickets' quarters, and other
similar makeshift structures shall be established in said areas.
5. Lawyers of parties with cases pending in courts have a duty to properly apprise their clients on
matters of decorum and proper attitude toward courts of justice when engaged in demonstrations,
pickets, rallies and similar activities. As officers of the court, they must help to preserve the dignity of
the courts and to insulate the courts from all forms of influence that may adversely affect judicial
impartiality and violate a party's right to due process.
6. Any violation of this resolution shall be treated as contempt of court. Members of the Bar violating
this resolution may, in addition, be subject to the administrative sanctions of fine, imprisonment,
suspension from the practice of law or disbarment as circumstances may warrant.
The Clerk of Court is directed to forthwith cause publication of these Guidelines in two (2) newspapers
of general circulation. The Guidelines shall take effect upon the expiration of fifteen (15) days after such
publication.
The Clerk of Court is further directed to furnish all lower courts, the Integrated Bar of the Philippines,
the PNP, and all agencies of local governments in charge of issuing permits to hold demonstrations,
rallies, pickets and similar activities, around the vicinity of courts of justice with copies of this
Resolution.cralaw
Very truly yours,

[Sgd.] LUZVIMINDA D. PUNO
Clerk of Court
GR No. 134621, September 29, 1998
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT
CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE

PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National
President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,

AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive

Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty
to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on
behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as
citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C.
Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the
Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and
several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen

and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited

political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law would
authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from conception.35
• The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH
Law violates the constitutional guarantee respecting religion as it authorizes the use of public
funds for the procurement of contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is included in the constitutional
mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest
test" to justify the regulation of the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail
of the practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government
program that promotes contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce contraceptives that
would effectively reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the RH
Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way
of family planning. The petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution.
It is contended that the RH Law providing for mandatory reproductive health education
intrudes upon their constitutional right to raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative authority.

The petitioners question the delegation by Congress to the FDA of the power to determine
whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI
of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
(OSG) which commented on the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano
was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was
provided that "no drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development.70 Thus, on
August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.
The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny,
be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to make sure that they
have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has
no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1
of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
which are legally demandable and enforceable, and to determine whether or not there has been a
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions raised
by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-
AD) was put in question, it was argued that the Court has no authority to pass upon the issues
raised as there was yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press
and peaceful assembly are but component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of
the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.121
One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and where,
as here, the persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life

Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that
the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not
be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna
Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to
prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such
as the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination of
23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from

Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To
adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization,
not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained
but that instance of implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as

"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary
effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176 Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly increased in women
who use oral contraceptives as compared to women who never use them. They point out that the
risk is decreased when the use of contraceptives is discontinued. Further, it is contended that the
use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk
of myocardial infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory, the
OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181
A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-executing provisions.182 In Manila
Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when,
or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of
R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements
are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman
that the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since
the sale, distribution and dispensation of contraceptive drugs and devices will still require the
prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards
to ensure the public that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the
Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The
DOH shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section
9 that ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third sentence
concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:

1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and

The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against
his free will.199
The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer -
and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys
on the matter, they highlight the changing stand of the Catholic Church on contraception throughout
the years and note the general acceptance of the benefits of contraceptives by its followers in
planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect. Generally, the
1âw phi1
State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the
country.
Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
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.212
The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same
case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The purpose
of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218 Underlying the compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was
written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case
of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]
In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's

organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause

and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the
RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it
was stressed:
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to
be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?
Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means.234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to

ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women

and girls. In addition, healthy lifestyle activities are encouraged and promoted
through programs and projects as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the youth and
the development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of
character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested:
"the forced referral clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above principles
are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention
of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State should see to
it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where
the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family.
It does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation
of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and whether
they will contradict the religious beliefs of the petitioners and validate their apprehensions. Thus,
considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of developing
the youth and their important role in nation building.253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule
10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its judgment should an actual case
be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
service provider." They argue that confusion further results since Section 7 only makes reference to
a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It
is unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference
to the context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they
are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are
broad enough to include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as
follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The public deserves
no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members,
as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a
truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right
altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or is found to
be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may
not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government
under the annual General Appropriations Act, other special laws, pertinent executive orders,
and those wholly or partially funded from foreign sources, are not covered under this Section,
except in those cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services. [Emphases
supplied]
The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments.274 Except for the
express and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot
serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to
modem methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless
of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic
Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to
refer a patient not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to another health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and
void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been
herein declared as constitutional.
SO ORDERED.
March 7, 2017
A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE HALL

OF JUSTICE BUILDING IN QUEZON CITY
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion. Some put their faith in a god different
from ours, while some may not believe in a god at all. Nevertheless, despite the inconveniences this
difference may cause us, we must accept it unconditionally for only upon acceptance of the fact that
we are different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony Q. Valenciano (Valenciano) and
addressed to then Chief Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that the basement of the Hall of
Justice of Quezon City (QC) had been converted into a Roman Catholic Chapel, complete with
offertory table, images of Catholic religious icons, a canopy, an electric organ, and a projector. He
believed that such practice violated the constitutional provision on the separation of Church and
State and the constitutional prohibition against the appropriation of public money or property for the
benefit of a sect, church, denomination, or any other system of religion.
Valenciano further averred that the holding of masses at the basement of the QC Hall of Justice
showed that it tended to favor Catholic litigants; that the rehearsals of the choir caused great
disturbance to other employees; that the public could no longer use the basement as resting place;
that the employees and litigants of the Public Attorney's Office (PAO), Branches 82 and 83 of the
Regional Trial Court (RTC), Legal Library, Philippine Mediation Center, and Records Section of the
Office of the Clerk of Court (OCC) could not attend to their personal necessities such as going to the
lavatories because they could not traverse the basement between 12:00 o'clock noontime and 1: 15
o'clock in the afternoon; that the court employees became hostile toward each other as they vied for
the right to read the epistle; and that the water supply in the entire building was cut off during the
mass because the generator was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred Valenciano 's letter to
then Deputy Court Administrator (DCA) and Officer-in-Charge of the Office on Halls of Justice,
Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred the letter to Executive
Judge Teodoro A. Bay (Judge Bay) of the RTC and to Executive Judge Luis Zenon Q.
Maceren (Judge Maceren) of the Metropolitan Trial Court (MeTC) for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified that the basement of
the QC Hall of Justice was known as the prayer corner. He opined that the use of the said area for
holding masses did not violate the constitutional prohibition against the use of public property for
religious purposes because the religious character of such use was merely incidental to a temporary
use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was due to compulsorily
retire on April 29, 2009, and he was taking a leave of absence prior to such date to concentrate in
resolving cases submitted for decision before his sala and requested that then Vice-Executive Judge
Jaime N. Salazar (Judge Salazar) be assigned to further investigate, study, and make
recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final resolution of the case, daily
masses be permitted to continue, provided that: (1) the mass be limited to thirty (30) minutes; (2) no
loud singing be allowed so as not to disturb others; and (3) the inconveniences caused by the mass
be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred another letter of
Valenciano, dated May 13, 2009, to DCA Dujua for appropriate action, as he complained that
masses continued to be held at the basement of the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be promulgated by the Court
to put a stop to the holding of Catholic masses, or any other religious rituals, at the QC Hall of
Justice and in all other halls of justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of Valenciano and
referred the matter to the Office of the Court Administrator (OCA) for evaluation, report and
recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then Assistant Court
Administrator (ACA) Jenny Lind R. AldecoaDelorino (now Deputy Court Administrator), referred the
letters of Valenciano to the incumbent RTC Executive Judge Fernando T. Sagun, Jr. (Judge Sagun,
Jr.) and incumbent MeTC Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed the Court that his
office had already implemented measures to address Valenciano's complaints. He reported that
masses were shortened to a little over thirty (30) minutes; that it was only during special holy days of
obligation when the celebration of mass went beyond one (1) o'clock in the afternoon; that the
pathways leading to the lavatories were open and could be used without obstruction; that there was
never an instance where the actions of court personnel, who were vying to read the epistle during
mass, caused back-biting and irritation among themselves; that the water generator had been
broken beyond repair and decommissioned since December 2009; and that the court employees
prepared for the mass before the day officially started, so that the performance of their official duties
in court was not hampered.
In her letter,11 Judge Lutero reported that Catholic masses were being held only during lunch breaks
and did not disturb court proceedings; that the basement of the QC Hall of Justice could still be used
as waiting area for the public; that court personnel and the public were never physically prevented
from reaching the lavatories during mass as there was a clear path from the public offices leading to
the comfort rooms; that water service interruptions were caused by maintenance problems and not
because the water pump was being shut off during mass; and that the elevators could not be used
during mass because elevator attendants took their lunch break from twelve (12) o'clock to one (1)
o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public places which the Constitution
prohibited, but the passage of laws or the use of public funds for the purpose of establishing a
religion or prohibiting the free exercise thereof. She conveyed the fact that no law or rule had been
passed and that no public funds had been appropriated or used to support the celebration of
masses. She added that the holding of Catholic masses did not mean that Catholics had better
chances of obtaining favorable resolutions from the court.
Accordingly, Judge Lutero recommended that the holding of masses at the basement of the QC Hall
of Justice be allowed to continue considering that it was not inimical to the interests of the court
employees and the public.
The OCA Report

and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that the practical inconveniences
cited by Valenciano were unfounded. It, thus, recommended that his letter-complaints, dated
January 6, 2009, May 13, 2009 and March 23, 2010, be dismissed for lack of merit and that the RTC
and MeTC Executive Judges of QC be directed to closely regulate and monitor the holding of
masses and other religious practices within the premises of the QC Hall of Justice. 1âwphi1
The OCA opined that the principle of separation of Church and State, particularly with reference to
the Establishment Clause, ought not to be interpreted according to the rigid standards of separation;
that the neutrality of the State on religion should be benevolent because religion was an ingrained
part of society and played an important role in it; and that the State, therefore, instead of being
belligerent (in the case of Strict Separation) or being aloof (in the case of Strict Neutrality) towards
religion should instead interact and forbear.13
The OCA advanced the view that the standard of Benevolent Neutrality/Accommodation was
espoused because the principal religion clauses in our Constitution were not limited to the
Establishment Clause, which created a wall between the Church and the State, but was quickly
followed by the declaration of the Free Exercise Clause, which protected the right of the people to
practice their religion. In effect, the standard of Benevolent Neutrality/Accommodation balanced the
interest of the State through the Establishment Clause, and the interest and right of the individual to
freely exercise his religion as guaranteed by the Free Exercise Clause.14
The OCA observed that the present controversy did not involve a national or local law or regulation
in conflict with the Free Exercise Clause. On the contrary, Valenciano was merely questioning the
propriety of holding religious masses at the basement of the QC Hall of Justice, which was nothing
more than an issue of whether the said religious practice could be accommodated or not. It ended
up concluding that based on prevailing jurisprudence, as well as the interpretations given to the
religion clauses of the 1987 Constitution, there was nothing constitutionally abhorrent in allowing the
continuation of the masses.15
The OCA added that by allowing or accommodating the celebration of Catholic masses within the
premises of the QC Hall of Justice, the Court could not be said to have established Roman
Catholicism as an official religion or to have endorsed the said religion, for the reason that it also
allowed other religious denominations to practice their religion within the courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY HALL OF
JUSTICE VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND
STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION AGAINST APPROPRIATION OF
PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT, CHURCH,
DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA and denies the prayer of
Valenciano that the holding of religious rituals of any of the world's religions in the QC Hall of Justice
or any halls of justice all over the country be prohibited.
The Holding of Religious

Rituals in the Halls of Justice
does not Amount to a Union of
Church and State
As earlier stated, Valenciano is against the holding of religious rituals in the halls of justice on the
ground that it violates the constitutional provision on the separation of Church and State and the
constitutional prohibition against the appropriation of public money or property for the benefit of a
sect, church, denomination, or any other system of religion. Indeed, Section 6, Article II of the 1987
The separation of Church and State shall be inviolable.17
The Court once pronounced that "our history, not to speak of the history of mankind, has taught us
that the union of church and state is prejudicial to both, for occasions might arise when the state will
use the church, and the church the state, as a weapon in the furtherance of their respective ends
and aims."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors."
The idea is to delineate the boundaries between the two institutions and, thus, avoid encroachments
by one against the other because of a misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render therefore unto Caesar the things
that are Caesar's and unto God the things that are God's."19
This, notwithstanding, the State still recognizes the inherent right of the people to have some form of
belief system, whether such may be belief in a Supreme Being, a certain way of life, or even an
outright rejection of religion. Our very own Constitution recognizes the heterogeneity and religiosity
of our people as reflected in lmbong v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to Whom they called for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God" manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality. Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 Constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.
[Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve as a motivating force
behind each person's actions:
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for
religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy," they thereby
manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is recognized here
as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively
to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec.
Ordinance appended thereto; Assessment Law, sec. 344, par [c], Adm. Code) sectarian aid is not
prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is
assigned to the armed forces or to any penal institution, orphanage or leprosarium xxx. Optional
religious instruction in the public schools is by constitutional mandate allowed xxx. Thursday and
Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec.
29, Adm. Code) because of the secular idea that their observance is conducive to beneficial moral
results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against
religious worship are considered crimes against the fundamental laws of the state xxx.22 [Emphasis
supplied]
Thus, the right to believe or not to believe has again been enshrined in Section 5, Article III of the
1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. xxx.
Free Exercise Clause
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
"The right to religious profession and worship has a two-fold aspect - freedom to believe and
freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is translated into external acts that
affect the public welfare."24 Justice Isagani A. Cruz explained these two (2) concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may
indulge his own theories about life and death; worship any god he chooses, or none at all; embrace
or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence;
recognize or deny the immortality of his soul - in fact, cherish any religious conviction as he and he
alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to
the majority, he has full freedom to believe as he pleases. He may not be required to prove his
beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men
may believe what they cannot prove." Every one has a right to his beliefs and he may not be called
to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his
freedom to do so becomes subject to the authority of the State. As great as this liberty may be,
religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only with a
proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the State and render it
impotent in protecting the general welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such practices are pursued out of
sincere religious conviction and not merely for the purpose of evading the reasonable requirements
or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma."25
Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact,
these two principles are in perfect harmony with each other.
The State is aware of the existence of religious movements whose members believe in the divinity of
Jose Rizal. Yet, it does not implement measures to suppress the said religious sects. Such inaction
or indifference on the part of the State gives meaning to the separation of Church and State, and at
the same time, recognizes the religious freedom of the members of these sects to worship their own
Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship through the holy mass
and to stop these would be tantamount to repressing the right to the free exercise of their religion.
Our Muslim brethren, who are government employees, are allowed to worship their Allah even
during office hours inside their own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them from working on a Saturday. Even
Christians have been allowed to conduct their own bible studies in their own offices. All these have
been allowed in respect of the workers' right to the free exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and
State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state
interest. To successfully invoke compelling state interest, it must be demonstrated that the masses
in the QC Hall of Justice unduly disrupt the delivery of public services or affect the judges and
employees in the performance of their official functions. In Estrada v. Escritor,27 the Court expounded
on the test as follows:
The "compelling state interest" test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the interests of the state
in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom as this is a
fundamental .right that enjoys a preferred position in the hierarchy of rights - "the most inalienable
and sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of the
Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and humane society and establish a
government." As held in Sherbert, only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide. The "compelling state interest"
serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty will
not be preserved.137 [Citations omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being conducted only during
noon breaks and were not disruptive of public services. The court proceedings were not being
distracted or interrupted and that the performance of the judiciary employees were not being
adversely affected. Moreover, no Civil Service rules were being violated. As there has been no
detrimental effect on the public service or prejudice to the State, there is simply no state interest
compelling enough to prohibit the exercise of religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November 13, 1981,
the CSC came out with Resolution No. 81-1277, which provided, among others, that "during Friday,
the Muslim pray day, Muslims are excused from work from 10:00 o'clock in the morning to 2:00
o'clock in the afternoon." The Court struck this down28 as not sanctioned by the law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00
p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of
the prescribed government working hours. For then, they would be rendering service twelve (12)
hours less than that required by the civil service rules for each month. Further, this would encourage
other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or those belonging to
other religious denominations, should not prejudice the courts and the public. Indeed, the exercise of
religious freedom does not exempt anyone from compliance with reasonable requirements of the
law, including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State adopts a policy of
accommodation. Accommodation is a recognition of the reality that some governmental measures
may not be imposed on a certain portion of the population for the reason that these measures are
contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not
impair the public welfare, the attempt of the State to regulate or prohibit such right would be an
unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
that take religion specifically into account not to promote the government's favored form of religion,
effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion. As Justice Brennan explained, the "government [may] take religion into account ... to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption of members
of Iglesia ni Cristo from the coverage of a closed shop agreement between their employer and a
union, because it would violate the teaching of their church not to affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners, who were members of
the Jehovah 's Witnesses, refused to salute the flag, sing the national anthem, and recite the
patriotic pledge for it is their belief that those were acts of worship or religious devotion, which they
could not conscientiously give to anyone or anything except God. The Court accommodated them
and granted them an exemption from observing the flag ceremony out of respect for their religious
beliefs.
Further, several laws have been enacted to accommodate religion. The Revised Administrative
Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas Day as regular holidays.
Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of Shawwal, the tenth month of the Islamic
Calendar, a national holiday for the observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849
declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar, a national holiday for
the observance of Eidul Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of
Muslim Personal Laws of the Philippines, expressly allows a Filipino Muslim to have more than one
(1) wife and exempts him from the crime of bigamy punishable under Revised Penal
Code (RPC). The same Code allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322,
provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the
national government, government-owned or controlled corporations, provinces, cities, municipalities
and other instrumentalities shall observe office hours from seven-thirty in the morning (7:30 a.m.) to
three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there shall be
no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to the
benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981, which
reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official time of 8
o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M. without
noon break and the difference of 2 hours is not counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan City (Re:
Office Hours),34 the Court recognized that the observance of Ramadan as integral to the Islamic faith
and allowed Muslim employees in the Judiciary to hold flexible office hours from 7:30 o'clock in the
morning to 3:30 o'clock in the afternoon without any break during the period. This is a clear case of
accommodation because Section 5, Rule XVII of the Omnibus Rules Implementing Book V of E.0.
No. 292, enjoins all civil servants, of whatever religious denomination, to render public service of no
less than eight (8) hours a day or forty (40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate that "no law shall be made
respecting an establishment of religion,"35 otherwise known as the non-establishment clause. Indeed,
there is a thin line between accommodation and establishment, which makes it even more
imperative to understand each of these concepts by placing them in the Filipino society's
perspective.
The non-establishment clause reinforces the wall of separation between Church and State. It simply
means that the State cannot set up a Church; nor pass laws which aid one religion, aid all religion, or
prefer one religion over another nor force nor influence a person to go to or remain away from
church against his will or force him to profess a belief or disbelief in any religion; that the state
cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church
attendance or nonattendance; that no tax in any amount, large or small, can be levied to support any
religious activity or institution whatever they may be called or whatever form they may adopt or teach
or practice religion; that the state cannot openly or secretly participate in the affairs of any religious
organization or group and vice versa.36 Its minimal sense is that the state cannot establish or sponsor
an official religion.37
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do. They can neither cause the government to adopt
their particular doctrines as policy for everyone, nor can they cause the government to restrict other
groups. To do so, in simple terms, would cause the State to adhere to a particular religion and, thus,
establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in religious matters. Such
government neutrality may be summarized in four general propositions: (1) Government must not
prefer one religion over another or religion over irreligion because such preference would violate
voluntarism and breed dissension; (2) Government funds must not be applied to religious purposes
because this too would violate voluntarism and breed interfaith dissension; (3) Government action
must not aid religion because this too can violate voluntarism and breed interfaith dissension; [and]
(4) Government action must not result in excessive entanglement with religion because this too can
violate voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State. Accommodation, on the other hand,
is passive. In the former, the State becomes involved through the use of government resources with
the primary intention of setting up a state religion. In the latter, the State, without being entangled,
merely gives consideration to its citizens who want to freely exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of the
Chief Attorney recommended to deny, on constitutional grounds, the request of Rev. Fr. Carlo M.
Ilagan to hold a oneday vigil in honor of the Our Lady of Caysasay within the premises of the Court.
Such controversy must be distinguished from the present issue in that with respect to the former, a
Catholic priest was the one who requested for the vigil. Moreover, in that case, the vigil would take
one (1) whole working day; whereas in this case, the masses are held at the initiative of Catholic
employees and only during the thirty-minute lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic masses at the
basement of the QC Hall of Justice is not a case of establishment, but merely accommodation.
First, there is no law, ordinance or circular issued by any duly constitutive authorities expressly
mandating that judiciary employees attend the Catholic masses at the basement. Second, when
judiciary employees attend the masses to profess their faith, it is at their own initiative as they are
there on their own free will and volition, without any coercion from the judges or administrative
officers. Third, no government funds are being spent because the lightings and airconditioning
continue to be operational even if there are no religious rituals there. Fourth, the basement has
neither been converted into a Roman Catholic chapel nor has it been permanently appropriated for
the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or property shall be
appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister,
or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or
leprosarium."
The word "apply" means "to use or employ for a particular purpose."40 "Appropriate" means "to
prescribe a particular use for particular moneys or to designate or destine a fund or property for a
distinct use, or for the payment of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in itself or is
equally susceptible of various meanings, its correct construction may be made clear and specific by
considering the company of words in which it is found or with which it is associated. This is because
a word or phrase in a statute is always used in association with other words or phrases, and its
meaning may, thus, be modified or restricted by the latter. The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but the whole and every part
of the statute must be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole. A statute must be so construed as to harmonize and give effect to all its
provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is the use
of public money or property for the sole purpose of benefiting or supporting any church. The
prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance
of a particular church.
It has also been held that the aforecited constitutional provision "does not inhibit the use of public
property for religious purposes when the religious character of such use is merely incidental to a
temporary use which is available indiscriminately to the public in general." Hence, a public street
may be used for a religious procession even as it is available for a civic parade, in the same way that
a public plaza is not barred to a religious rally if it may also be used for a political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of public
money or property, not as to whether a particular act involves a direct or a mere incidental benefit to
any church. Otherwise, the framers of the Constitution would have placed it before "use, benefit or
support" to describe the same. Even the exception to the same provision bolsters this interpretation.
The exception contemplates a situation wherein public funds are paid to a priest, preacher, minister,
or other religious teacher, or dignitary because they rendered service in the armed forces, or to any
penal institution, or government orphanage or leprosarium. That a priest belongs to a particular
church and the latter may have benefited from the money he received is of no moment, for the
purpose of the payment of public funds is merely to compensate the priest for services rendered and
for which other persons, who will perform the same services will also be compensated in the same
manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44 As such, the
foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in stating that what is proscribed is the passage
of any law which tends to establish a religion, not merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly and exclusively devoted to
religious purposes.45 Certainly, this benefits the religious sects for a portion of what could have been
collected for the benefit of the public is surrendered in their favor.
In Manosca v. CA,46 a parcel of land located in Taguig was determined by the National Historical
Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then
sought to expropriate the said property. The exercise of the power of eminent domain was
questioned on the ground that it would only benefit members of Iglesia ni Cristo. The Court upheld
the legality of the expropriation, viz.:
The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by
most others could well be true but such a peculiar advantage still remains to be merely incidental
and secondary in nature.47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-third
International Eucharistic Congress was assailed on the ground that it violated the constitutional
prohibition against the appropriation of public money or property for the benefit of any church. In
ruling that there was no such violation, the Court held:
It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any, received
by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the
opinion that the Government should not be embarrassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one which could legitimately
be undertaken by appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the sole
purpose of supporting the Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its faithful
contrary to the claim of Valenciana. Judge
Maceren reported that the basement is also being used as a public waiting area for most of the day
and a meeting place for different employee organizations. The use of the area for holding masses is
limited to lunch break period from twelve (12) o'clock to one (1) o'clock in the afternoon. Further,
Judge Sagun, Jr. related that masses run for just a little over thirty (30) minutes. It is, therefore, clear
that no undue religious bias is being committed when the subject basement is allowed to be
temporarily used by the Catholics to celebrate mass, as the same area can be used by other groups
of people and for other purposes.49 Thus, the basement of the QC Hall of Justice has remained to be
a public property devoted for public use because the holding of Catholic masses therein is a mere
incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor the holding of
masses and other religious practices within the courts does not promote excessive collaboration
between courts and various religions. On the contrary, this is necessary to ensure that there would
be no excessive entanglement.
To disallow the holding of religious rituals within halls of justice would set a dangerous precedent
and commence a domino effect. Strict separation, rather than benevolent neutrality/accommodation,
would be the norm. Thus, the establishment of Shari'a courts, the National Commission for Muslim
Filipinos, and the exception of Muslims from the provisions of the RPC relative to the crime of
bigamy would all be rendered nugatory because of strict separation. The exception of members
of Iglesia ni Cristo from joining a union or the non-compulsion recognized in favor of members of the
Jehovah's Witnesses from doing certain gestures during the flag ceremony, will all go down the drain
simply because we insist on strict separation.
That the holding of masses at the basement of the QC Hall of Justice may offend non-Catholics is no
reason to proscribe it. Our Constitution ensures and mandates an unconditional tolerance, without
regard to whether those who seek to profess their faith belong to the majority or to the minority. It is
emphatic in saying that "the free exercise and enjoyment of religious profession and worship shall be
without discrimination or preference." Otherwise, accommodation or tolerance would just be mere lip
service.
One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in reality,
refuses to practice what he preaches. One cannot ask for tolerance when he refuses to do the same
for others.
In fine, the Court denies the plea that the holding of Catholic masses at the basement of the QC Hall
of Justice be prohibited because the said practice does not violate the constitutional principle of
separation of Church and State and the constitutional prohibition against appropriation of public
money or property for the benefit of a sect, church, denomination, or any other system of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May 13, 2009, and
March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of Justice,
containing photocopies and certified photocopies of previous actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial Court
Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive Judge
Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in the QC Hall of
Justice and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the
holding of masses and other religious practices within the Quezon City Hall of Justice by ensuring,
among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for worship for the benefit
of any and all religious groups. There shall also be no permanent display of religious icons in all halls
of justice in the country. In case of religious rituals, religious icons and images may be displayed but
their presentation is limited only during the celebration of such activities so as not to offend the
sensibilities of members of other religious denominations or the non-religious public. After any
religious affair, the icons and images shall be hidden or concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in the country. Other
churches, religious denominations or sects are entitled to the same rights, privileges, and practices
in every hall of justice. In other buildings not owned or controlled by the Judiciary, the Executive
Judges should coordinate and seek approval of the building owners/administrators accommodating
their courts.
SO ORDERED.
G.R. No. 223395, December 04, 2018
RENATO V. PERALTA, Petitioner, v. PHILIPPINE POSTAL CORPORATION (PHILPOST),

REPRESENTED BY MA. JOSEFINA MDELACRUZ IN HER CAPACITY AS POSTMASTER GENERAL AND
CHIEF EXECUTIVE OFFICER, THE BOARD OF DIRECTORS OF PHILPOST, REPRESENTED BY ITS
CHAIRMAN CESAR N. SARINO, Respondents.
DECISION
TIJAM, J.:
Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the Decision2 dated
July 24, 2015 and the Resolution3 dated March 8, 2016 of the Court of Appeals (CA) in CA-G.R. CV No.
103151.
The Antecedents
On May 10, 2014, respondent Philippine Postal Corporation (PhilPost) issued a stamp commemorating
Iglesia ni Cristo's (INC's) Centennial Celebration. The design of the stamp showed a photo of INC founder,
the late Felix Y. Manalo (Manalo) with the designation on the left side containing the words "Felix Y. Manalo,
1886-1963 First Executive Minister of Iglesia ni Cristo", with the Central Temple of the religious group at the
background. At the right side of Manalo's photo is the INC's centennial logo which contained a torch
enclosed by a two concentric circles containing the words "IGLESIA Nl CRISTO CENTENNIAL 1914-2014".4
On June 16, 2014, petitioner Renato V. Peralta (petitioner) filed a complaint5 for injunction with the Regional
Trial Court (RTC), Br. 33 of Manila, assailing the constitutionality of the printing, issuance and distribution of
the INC commemorative centennial stamps, allegedly paid for by respondent PhilPost using public funds.
In his complaint, petitioner alleged that the printing and issuance of the INC commemorative stamp involved
disbursement of public funds, and violated. Section 29(2) of Article VI6 of the 1987 Constitution. He argued
that respondents' act of releasing the said stamps was unconstitutional because it was tantamount to
sponsorship of a religious activity; it violated the separation of the Church and the State; and the non-
establishment of religion clause. Thus, petitioner prayed that respondents be restrained from issuing and
distributing the INC commemorative stamps.7
After service of summons to respondents PhilPost and its Board of Directors, and a hearing on the
petitioner's application for Temporary Restraining Order (TRO), the RTC denied the same in its Order8 dated
June 23, 2014.
Respondents filed their Answer,9 maintaining that no public funds were disbursed in the printing of the INC
commemorative stamps. They alleged that there was a Memorandum of Agreement10 (MOA) dated May 7,
2014 executed between PhilPost and INC, where it was provided that the costs of printing will be borne by
INC. They claimed that the proceeds of the sale of the stamps will not redound to the sole benefit of
INC.11 The printing, according to them, is part of PhilPost's philatelic products, which will promote tourism in
the country because it will attract people from all over the world.12 They maintained that any sectarian
benefit to the INC is merely incidental. As to petitioner's prayer for injunctive relief, respondents contended
that petitioner failed to demonstrate irreparable injury, and that he cannot seek to restrain the printing and
distribution of the stamps as these were already printed prior to the filing of the complaint.
On July 25, 2014, the RTC issued an Order,13 denying petitioner's application for the issuance of a
preliminary injunction and dismissing the action. It ruled that it was not a taxpayer's suit and that it did not
violate Section 29 (2), Article VI of the 1987 Philippine Constitution.14
Petitioner appealed the RTC's decision with the CA, but the same was denied in its July 24, 2015 decision.
The CA ruled that although the action is considered as a taxpayer's suit, the printing and issuance of the
commemorative stamp did not violate the Constitution.15
Aggrieved, petitioner filed a motion for reconsideration16 of the CA's decision, but the same was denied for
lack of merit in the CA's March 8, 2016 Resolution.
Hence, the instant petition.

The Court's Ruling
Petitioner's arguments
Petitioner reiterates his argument that the CA failed to judiciously analyze the design of the INC
commemorative stamp as to conclude that the same is "more historical than religious". He argues that the
INC stamp, which commemorates the 100th year founding of INC, particularly the INC Central Temple and
centennial logo, is purely religious. He explains that in Aglipay vs. Ruiz,17 the stamp deleted the grapevine
with stalks of wheat in its design, and merely contained the Philippine map and the location of the City of
Manila, with inscription,"Seat XXXIII International Eucharistic Congress, February 3-7, 1937". For petitioner,
what was emphasized in the stamp subject of the case of Aglipay vs. Ruiz18 was Manila, and not the
Eucharistic Congress. Meanwhile, in this case, the INC stamp purportedly emphasized the INC as a religious
institution.
Petitioner likewise cited the MOA between INC and respondent PhilPost to emphasize the religious purpose
of printing the stamp.
PhilPost's comment
For respondents' part, they maintained the constitutionality of the stamps issued. First, they claimed that
the printing, issuance and distribution of the assailed INC commemorative stamps can neither be restrained
nor enjoined, because they have become fait accompli.19
Respondents also questioned petitioner's standing as a taxpayer. They point out that there is no illegal
disbursement of public funds, as the cost of printing and issuance of the assailed commemorative stamps
was exclusively borne by INC for its consumption, and no public funds were disbursed. The remaining pieces
of stamps were used for sale by PhilPost to its postal clients. It emphasized that the sales proceeds were not
intended to support the INC as a religious sect, but to promote the country as the chosen venue of an
international commemorative event, given INC's presence in other countries. Respondents also pointed out
that petitioner has not shown that he will suffer a direct injury on account of the printing and issuance of the
INC commemorative stamps. Respondents also agreed with the findings of the CA that there is intrinsic
historical value in the design of the INC stamp, considering that INC is a Filipino institution.20
Lastly, respondents contend that Section 29(2), Article VI of the 1987
Constitution does not apply, as it pertains to the Legislative Department. Respondents alleged that the facts
in the cases of Aglipay vs Ruiz and Manosca vs. Court of Appeals21 are different from the case at bar.
In Aglipay, the funds originated from the Insular Treasury - from funds not otherwise appropriated.
Meanwhile, Manosca pertained to an expropriation case, hence, entailed appropriation of public funds. In
this case, however, respondents emphasized that PhilPost is a government owned and controlled corporation
(GOCC), which operates on its own capital. Thus, when INC sought the printing of the assailed stamps, from
its own funds and for its primary use, the prohibition was not violated. It alleged that the printing of the INC
stamps was done as a fund-raising activity, and not to endorse or benefit any religion.
Based from the aforesaid arguments of the parties, the issue of this case centers on the constitutionality of
the respondents' act in issuing and selling postage stamps commemorating the INC's centennial celebration.
The petition lacks merit.
Procedural Aspect -
It is doctrinal22 that the power of judicial review is subject to the following limitations, viz: (1) there must be
an actual case or controversy calling for the exercise of judicial power; (2) the constitutionality of the
questioned act must be raised by the proper party, i.e., the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota (the cause of the suit or action) of the case, i.e., the
decision on the constitutional or legal decision must be necessary to the determination of the case itself.
Of these four, the first and second conditions will be the focus of Our discussion.
Actual case or controversy -
Whether under the traditional or expanded setting, the Court's judicial review power, pursuant to Section 1,
Article VIII of the Constitution, is confined to actual cases or controversies. We expounded on this requisite
in SPARK, et. al. v. Quezon City, et. al.,23 thus:
An actual case or controversy is one which involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. In other words, there must be a contrariety of legal rights that can be interpreted and enforced on
the basis of existing law and jurisprudence. According to recent jurisprudence, in the Court's exercise of its
expanded jurisdiction under the 1987 Constitution, this requirement is simplified by merely requiring
a prima facie showing of grave abuse of discretion in the assailed governmental act.
Corollary to the requirement of an actual case of controversy is the requirement of ripeness. A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then
been accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct
injury as a result of the act complained of. [Citations omitted.]
Applying these principles, this Court finds that there exists an actual justiciable controversy in this case.
Here, it is evident that PhilPost - under the express orders of then President Benigno Aquino III (President
Aquino III), through Proclamation No. 815 printed, issued and sold the INC commemorative stamps.
PhilPost's act gave rise to petitioner's injunction suit in which he made the following allegations: (1) the
printing of the INC commemorative stamps violated Sec. 29(2), Art. VI of the 1987 Constitution; and (2) the
purpose of the stamp as indicated in the MOA is "tantamount to sponsorship" of a religious activity, violative
of the non-establishment clause. These assertions are no longer hypothetical in nature, but already amount
to a legal claim susceptible for adjudication.
Respondents claim that the Injunction suit filed by petitioner has become moot since the acts sought to be
enjoined - printing, issuance and distribution of the INC commemorative stamps was fait accompli.24 They
anchored their claim on Our ruling in Go v. Looyuko,25 which essentially states that when the events sought
to be prevented by injunction have already happened, nothing more could be enjoined.
We clarify.
While this Court agrees that the issue on the remedy of injunction availed of by the petitioner may no longer
be viable to enjoin PhilPost's acts, considering that the act sought to be enjoined already transpired, this
does not necessarily mean that the question on the constitutionality of the said acts would automatically be
rendered academic.
It is precisely PhilPost's issuance, printing and sale of the INC commemorative stamps that created a
justiciable controversy since the said acts allegedly violated Sec. 29(2), Art. VI of the 1987 Constitution.
Had the petitioner filed the injunction suit prior to the implementation of Proclamation No. 815, any
resolution by this Court on the question of PhilPost's printing of the INC commemorative stamps would
merely be an advisory opinion, veritably binding no one, for it falls beyond the realm of judicial review.
Nonetheless, even if the case has indeed been rendered moot, this Court can still pass upon the main issue.
As We have pronounced in the case of Prof David v. Pres. Macapagal-Arroyo,26
[T]he moot-and-academic principle is not a magical formula that automatically dissuades courts from
resolving cases, because they will decide cases, otherwise moot and academic, if they find that: (a) there is
a grave violation of the Constitution; (b) the situation is of exceptional character, and paramount public
interest is involved; (c) the constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; or (d) a case is capable of repetition yet evading review.27
This Court, in Mattel, Inc. v. Francisco, et. al.,28 enumerated several cases where the exceptions to the
moot-and-academic principle were applied; thus:
xxx in Constantino v. Sandiganbayan (First Division),29 Constantino, a public officer, and his co-accused,
Lindong, a private citizen, filed separate appeals from their conviction by the Sandiganbayan for violation of
Section 3(e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act. While Constantino died
during the pendency of his appeal, the Court still ruled on the merits thereof, considering the exceptional
character of the appeals of Constantino and Lindong in relation to each other; that is, the two petitions were
so intertwined that the absolution of the deceased Constantino was determinative of the absolution of his
co-accused Lindong.30]
In Public Interest Center, Inc. v. Elma,31 the petition sought to declare as null and void the concurrent
appointments of Magdangal B. Elma as Chairman of the Presidential Commission on Good Government
(PCGG) and as Chief Presidential Legal Counsel (CPLC) for being contrary to Section 13, Article VII and
Section 7, par. 2, Article IX-B of the 1987 Constitution. While Elma ceased to hold the two offices during the
pendency of the case, the Court still ruled on the merits thereof, considering that the question of whether
the PCGG Chairman could concurrently hold the position of CPLC was one capable of repetition.32
In David v. Arroyo,33 seven petitions for certiorari and prohibition were filed assailing the constitutionality of
the declaration of a state of national emergency by President Gloria Macapagal-Arroyo. While the declaration
of a state of national emergency was already lifted during the pendency of the suits, this Court still resolved
the merits of the petitions, considering that the issues involved a grave violation of the Constitution and
affected the public interest. The Court also affirmed its duty to formulate guiding and controlling
constitutional precepts, doctrines or rules, and recognized that the contested actions were capable of
repetition.34
In Pimentel, Jr. v. Exec. Secretary Ermita,35 the petition questioned the constitutionality of President Gloria
Macapagal-Arroyo 's appointment of acting secretaries without the consent of the Commission on
Appointments while Congress was in session. While the President extended ad interim appointments to her
appointees immediately after the recess of Congress, the Court still resolved the petition, noting that the
question of the constitutionality of the President's appointment of department secretaries in acting capacities
while Congress was in session was one capable of repetition.36]
In Atienza v. Villarosa,37 the petitioners, as Governor and Vice Governor, sought for clarification of the scope
of the powers of the Governor and Vice-Governor under the pertinent provisions of the Local Government
Code of 1991. While the terms of office of the petitioners expired during the pendency of the petition, the
Court still resolved the issues presented to formulate controlling principles to guide the bench, bar and the
public.38
In Gayo v. Verceles,39 the petition assailing the dismissal of the petition for quo warranto filed by Gayo to
declare void the proclamation of Verceles as Mayor of the Municipality of Tubao, La Union during the May 14,
2001 elections, became moot upon the expiration on June 30, 2004 of the contested term of office of
Verceles. Nonetheless, the Court resolved the petition since the question involving the one-year residency
requirement for those running for public office was one capable of repetition.40
In Albaña v. Commission on Elections,41 the petitioners therein assailed the annulment by the Commission
on Elections of their proclamation as municipal officers in the May 14, 2001 elections. When a new set of
municipal officers was elected and proclaimed after the May 10, 2004 elections, the petition was mooted but
the Court resolved the issues raised in the petition in order to prevent a repetition thereof and to enhance
free, orderly, and peaceful elections.42
Additionally, in Arvin R. Balag v. Senate of the Philippines,43 We likewise mentioned the following cases:
xxx in Republic v. Principalia Management and Personnel Consultants, Inc.,44 the controversy therein was
whether the Regional Trial Court (RTC) had jurisdiction over an injunction complaint filed against the
Philippine Overseas Employment Administration (POEA) regarding the cancellation of the respondent's
license. The respondent then argued that the case was already moot and academic because it had
continuously renewed its license with the POEA. The Court ruled that although the case was moot and
academic, it could still pass upon the main issue for the guidance of both bar and bench, and because the
said issue was capable of repetition.
xxx in Regulus Development, Inc. v. Dela Cruz,45 the issue therein was moot and academic due to the
redemption of the subject property by the respondent. However, the Court ruled that it may still entertain
the jurisdictional issue of whether the RTC had equity jurisdiction in ordering the levy of the respondent's
property since it posed a situation capable of repetition yet evading judicial review.
Based on these precedents, the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petition, the parties involved, on the application of the constitutional provisions allegedly violated
vis-a-vis the printing and issuance of the INC commemorative stamps. There is no question that the issues
being raised affect the public interest, involving as they do, the alleged misuse of public funds and the non-
establishment clause which is one of the constitutional guarantees of freedom of religion. This petition calls
for a clarification of constitutional principles. Perforce, there is a need to adjudicate the instant case.
Legal Standing -
In Mamba, et. al. v. Lara, et. al.,46 this Court explained the legal standing of a taxpayer in this wise:
A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that the
public money is being deflected to any improper purpose, or that there is wastage of public funds through
the enforcement of an invalid or unconstitutional law. A person suing as a taxpayer, however, must show
that the act complained of directly involves the illegal disbursement of public funds derived from taxation.
He must also prove that he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he will sustain a direct injury because of the enforcement of the questioned statute or
contract. xxx. [Citations omitted.]47
Here, petitioner made an allegation of PhilPost's misuse of public funds in the printing of 1,200,000 INC
commemorative stamps. Petitioner pointed out that out of the 1,200,000 commemorative stamps printed,
only 50,000 pieces were shouldered by the INC based on its MOA with PhilPost. Petitioner, thus, concluded
that the production of the additional 1,150,000 stamps were made possible only with the use of public funds
and property. On this basis, petitioner indeed, is invested with personality to institute the complaint for
injunction with the RTC. As correctly observed by the CA:
[Petitioner] Peralta contends that as the stamps covered by the MOA and paid for by the INC pertain only to
50,000 pieces, public funds and property were used by [respondent] Philpost in the printing and distribution
of the remaining 1,150,000 stamps. For purposes of determining capacity to sue as a taxpayer, it is
sufficient that [Petitioner] Peralta made allegations of such nature.48
Substantive Aspect -
The non-establishment of religion clause is not equivalent to indifference to religion
At the outset, this Court notes that the petition has argued, in length, about how the appellate court
apparently erred in failing to find the design of the stamp unconstitutional. Citing Aglipay vs. Ruiz, petitioner
insists that the religious nature of the INC stamp makes the same unconstitutional, since it violates the
prohibition against the State from establishing a religion.
It is at once apparent that petitioner has summarily equated religion to unconstitutionality. Certainly,
examination of jurisprudence, both here and in the United States, as well as the context over which this
stamp has been issued, inevitably leads this Court to agree with the CA, and uphold the issuance of the INC
commemorative stamp.
True, fundamental to the resolution of this case is the policy of the State on the inviolability of the principle
of separation of the church and the state. Justice Isagani Cruz explained the rationale of this principle in this
wise:
The rationale of the rule is summed up in the familiar saying, "Strong fences make good neighbors." The
idea is to delineate the boundaries between the two institutions and, thus, avoid encroachments by one
against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The
demarcation line calls on the entities to "render therefore unto Caesar the things that are Caesar's and unto
God the things that are God's."49
The 1987 Constitution expressly provides for the following provisions, giving life to the policy of separation
of the Church and the State; thus:
ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES
xxxx
Section 6. The separation of Church and State shall be inviolable.
xxxx
ARTICLE III
BILL OF RIGHTS
xxxx
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
xxxx
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
xxxx
Section 29.
(1) xxx
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or
of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium.
xxxx
The Constitutional "wall" between the Church and the State, has been jurisprudentially recognized to stem
from the country's unfortunate collective experience when the two institutions are commingled into one
entity, exercising both power and influence, oftentimes to the detriment of the populace.
However, as apparent from the Constitution, the "wall" between the Church and the State exists along with
the recognition of freedom of religion. In fact, review of jurisprudence would reveal that this Court has
carefully weighed this principles as to allow the broadest exercise of religious freedom without infringing the
non-establishment clause.
In upholding the issuance of the Thirty-third International Eucharistic Congress commemorative stamp, this
Court in Aglipay v. Ruiz50 recognized how religion is integrated in the Filipino way of life:
The more important question raised refers to the alleged violation of the Constitution by the respondent in
issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It
is alleged that this action of the respondent is violative of the provisions of section 13, subsection 3, Article
VI, of the Constitution of the Philippines, which provides as follows:
"No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, secretarian institution, or system of religion, or for
the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium."
The prohibition herein expressed is a direct corollary of the principle of separation of church and state.
Without the necessity of adverting to the historical background ofthis principle in our country, it is sufficient
to say that our history, not to speak of the history of mankind, has taught us that the union of church and
state is prejudicial to both, for ocassions might arise when the estate (sic) will use the church, and the
church the state, as a weapon in the furtherance of their respective ends and aims. The Malolos Constitution
recognized this principle of separation of church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions to the Philippine Commission, reaffirmed in the
Philippine Bill of 1902 and in the Autonomy Act of August 29, 1916, and finally embodied in the Constitution
of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this
country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to
the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere
religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence

for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the blessings of independence under a regime
of justice, liberty and democracy," they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our Constitution and laws
exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI,
Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec.
344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious
teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or
leprosarium (sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the
public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in
relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays are made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is
conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and
certain crimes against religious worship are considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).51 (Emphasis ours)
In Iglesia ni Cristo vs. Court of Appeals,52 this Court upheld the MTRCB's regulatory authority over religious
programs but ultimately upheld the contents of the INC's television program which attacked other
religions, viz:
The law gives the Board the power to screen, review and examine all "television programs." By the clear
terms of the law, the Board has the power to "approve, delete xxx and/or prohibit the xxx exhibition and/or
television broadcast of xxx television programs xxx." The law also directs the Board to apply "contemporary
Filipino cultural values as standard" to determine those which are objectionable for being "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines
and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or
crime."
Petitioner contends that the term "television program" should not include religious programs like its program
"Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene Section 5, Article III of the
Constitution which guarantees that "no law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our fundamental
laws, past and present We have affirmed this preferred status well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common
good." We have also laboriously defined in our jurisprudence the intersecting umbras and penumbras of the
right to religious profession and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-
known constitutionalist:
Religious Profession and Worship
The right to religious profession and worship has a twofold aspect, viz., freedom to believe and freedom to
act on one's beliefs. The first is absolute as long as the belief is confined within the realm of thought. The
second is subject to regulation where the belief is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his
own theories about life and death; worship any god he chooses, or none at all; embrace or reject any
religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny
the immortality of his soul - in fact, cherish any religious conviction as he and he alone sees fit. However
absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom
to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his
inability to do so. Religion, after all, is a matter of faith. Men may believe what they cannot prove. Every one
has a right to his beliefs and he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do
so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all
the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of
others. It is error to think that the mere invocation of religious freedom will stalemate the State and render
it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious
practices inimical to society. And this is true even if such practices are pursued out of sincere religious
conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: The constitutional provision on religious freedom terminated disabilities,
it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of religious dogma.53
In Estrada vs. Escritor,54 this Court encapsulated its policy towards these kinds of disputes as "benevolent
neutrality":
By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to
the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than
the secular purposes of government action and examines the effect of these actions on religious
exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives
room for accommodation of these religious exercises as required by the Free Exercise Clause. It
allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral
purpose of the religion clauses. The case at bar involves this first type of accommodation where an
exemption is sought from a law of general applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before
it. But it does mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them when it can within
flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the
protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an exception when the religion
clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because
of its merits as discussed above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching pad from which the
Court should take off in interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority, however small-not only for a majority,
however large-but for each of us" to the greatest extent possible within flexible constitutional
limits.55 (Emphasis ours)
Verily, where the Court has been asked to determine whether there has been an undue enchroachment of
this Constitutionally forged "wall", this Court has adopted a stance of "benevolent neutrality". Rightfully so,
for this incorporates the Constitutional principle of separation of the Church and the State while recognizing
the people's right to express their belief or non belief of a Supreme Being. This Court, applying the view of
benevolent neutrality, declared that there was no violation of the non-establishment of religion clause in the
recent case of Re: Letter Of Tony Q. Valenciano.56
Even in the U. S., whose jurisprudence are of persuasive weight in this jurisdiction, it can be gleaned that
the religious nature of certain governmental acts does not automatically result in striking them as
unconstitutional for violation of the non-establishment clause, particularly if the act involves constitutionally
protected form of exercise of religious freedom.
The "Lemon test", which has been extensively applied by the U. S. Supreme Court in issues involving the
determination of non-establishment of religion clause originated from the case of Lemon vs. Kurtzman.57 In
that case, the Court used a three-pronged test to adjudge whether the assailed governmental act violated
the First Amendment, as follows:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and,
3. The statute must not foster "an excessive government entanglement with religion."
In that case, the Court ruled that the state laws of Rhode Island and Pennsylvania providing financial aid
and resources to teachers of parochial private schools, who will teach non-secular subjects to public schools
is unconstitutional. This was because the effect of the law was to require the individual states to have
continuous monitoring and surveillance of teacher beneficiaries, in order to ensure that they would not
espouse Catholic teachings in their classes. Such scenario, according to the Supreme Court, constitutes as
an excessive entanglement of government in matters of religion. In that case, however, the U. S. High Court
admitted that drawing the line between allowable and prohibited State acts delving on religion is not a
matter of drawing conclusions from well-defined formula, to wit:
Our prior holdings do not call for total separation between church and state; total separation is not possible
in an absolute sense. Some relationship between government and religious organizations is
inevitable. Zorach v. Clauson, 343 U.S. 306,343 U.S. 312 (1952); Sherbert v. Verner, 374 U. S. 398, 374
U.S. 422 (1963) (HARLAN, J., dissenting). Fire inspections, building and zoning regulations, and state
requirements under compulsory school attendance laws are examples of necessary and permissible contacts.
Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain
that the exempt property was, in fact, being used for religious worship. Judicial caveats against
entanglement must recognize that the line of separation, far from being a "wall," is a blurred,
indistinct, and variable barrier depending on all the circumstances of a particular relationship.
This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms
must govern. A true minuet is a matter of pure form and style, the observance of which is itself
the substantive end. Here we examine the form of the relationship for the light that it casts on the
substance. (Emphasis ours)
Meanwhile, in upholding the use of a creche or Nativity scene in its annual Christmas display by the City of
Pawtucket, Rhode Island, the U. S. Supreme Court, in Lynch vs. Donnelly,58 explained that the separation of
the Church and the State should not be viewed to mean absolute detachment of each other. The Court
stated that:
This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First
Amendment is "to prevent, as far as possible, the intrusion of either [the church or the state] into the
precincts of the other."
xxxx
In every Establishment Clause case, we must reconcile the inescapable tension between the
objective of preventing unnecessary intrusion of either the church or the state upon the other,
and the reality that, as the Court has so often noted, total separation of the two is not possible.
The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see,
e.g., Everson v. Board of Education, 330 U.S. 1, 330 U.S. 18 (1947). The concept of a "wall" of separation is
a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a
reminder that the Establishment Clause forbids an established church or anything approaching it But the
metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact
exists between church and state.
No significant segment of our society, and no institution within it can exist in a vacuum or in total
or absolute isolation from all the other parts, much less from government. "It has never been
thought either possible or desirable to enforce a regime of total separation. . . ." Committee for Public
Education & Religious Liberty v. Nyquist, 413 U.S. 756, 413 U.S. 760 (1973). Nor does the Constitution
require complete separation of church and state; it affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306, 343
U.S. 314, 343 U.S. 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 333 U.S., 211
(1948). Anything less would require the "callous indifference" we have said was never intended by the
Establishment Clause." xxx (Emphasis Ours)
The U. S. Supreme Court then went on to state how its history and tradition has allowed a healthy
interaction between the State and religion, so long as the State does not commit acts that are solely
motivated by religious considerations.
Another important lesson in Lynch was the Court's consideration of the context within which the government
has issued a legislation or pursued an act. In that case, the Court found that the inclusion of the creche in
the annual Christmas display was merely a recognition of the historical origins of the Christmas holiday.
Having in mind the above-stated rulings pertinent to the principle of non-establishment of religion clause,
We proceed to scrutinize the INC commemorative stamp.
The printing of the INC commemorative stamp did not amount to a violation of the non-
establishment of religion clause
There is no quibbling that as to the 50,000 stamps ordered, printed and issued to INC, the same did not
violate the Constitutional prohibitions separating State matters from religion. Per paragraphs 5 and 6 of the
MOA between PhilPost and INC provided that:
xxxx
5. Upon signing of this Agreement, INC shall pay m cash or by manager's check an amount
equivalent to fifty percent (50%) of the value of the stamps, first day covers and other
philatelic products ordered to be purchased by INC, the fifty percent (50%) balance shall be
paid upon approval of the final stamp design/s by the PPC Stamps Committee.
6. Unless the total cost of the stamps and other related products ordered by the INC is paid,
PPC shall have the authority to hold the printing of the stamps and other philatelic
products. Only upon payment of the full amount of the purchased stamps that the same
shall be printed, delivered to INC, circulated and/or sold to collectors and the mailing
public.
xxxx59
It is plain, that the costs for the printing and issuance of the aforesaid 50,000 stamps were all paid for by
INC. Any perceived use of government property, machines or otherwise, is de minimis and certainly do not
amount to a sponsorship of a specific religion.
Also, We see no violation of the Constitutional prohibition on establishment of religion, insofar as the
remaining 1,150,000 pieces of stamps printed and distributed by PhilPost.
First, there is no law mandating anyone to avail of the INC commemorative stamps, nor is there any law
purporting to require anyone to adopt the INC's teachings. Arguably, while then President Aquino issued
Proclamation No. 815, s. 2014, authorizing the issuance of the INC commemorative stamp, the same did not
contain any legal mandate endorsing or requiring people to conform to the INC's teachings.
The secular purpose behind the printing of the INC commemorative stamp is obvious from the MOA between
INC and Philpost:
MEMORANDUM OF AGREEMENT
xxxx
INC has requested PPC to issue, circulate and sell commemorative stamps and other philatelic products to
promote the Centennial of the Iglesia Ni Cristo, and in honor of its First Executive Minister, Bro. Felix Y.
Manalo; (Emphasis ours)
xxxx60
The centennial celebration of the Iglesia ni Cristo, though arguably involves a religious institution, has a
secular aspect. In the old case of Garces, et al. vs. Hon. Estenzo, etc., et al.,61 the Court made a similar
pronouncement as to a controversy involving the purchase of a barangay council of a statue of San Vicente
Ferrer:
The wooden image was purchased in connection with the celebration of the barrio fiesta
honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion
nor interfering with religious matters or the religious beliefs of the barrio residents. One of the
highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be placed in the
church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then
any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his
image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an
ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the
lives of the masses.
The barangay council designated a layman as the custodian of the wooden image in order to forestall any
suspicion that it is favoring the Catholic church. A more practical reason for that arrangement would be that
the image, if placed in a layman's custody, could easily be made available to any family desiring to borrow
the image in connection with prayers and novenas.62 (Emphasis ours)
The printing of the INC commemorative stamp is no different. It is simply an acknowledgment of INC's
existence for a hundred years. It does not necessarily equate to the State sponsoring the INC.
As to the use of the government's machinery in printing and distribution of the 1.2 million stamps, this Court
does not find that the same amounted to sponsorship of INC as a religion considering that the same is no
different from other stamps issued by PhilPost acknowledging persons and events of significance to the
country, such as those printed celebrating National Artists, past Philippine Presidents, and events of
organizations, religious or not. We note that PhilPost has also issued stamps for the Catholic Church such as
those featuring Heritage Churches,63 15th International Eucharistic Congress,64 and Pope Francis.65 In the
past, the Bureau of Posts also printed stamps celebrating 300 years of Islam in the 1980s. Likewise, our
review of the records does not disclose that PhilPost has exclusively or primarily used its resources to benefit
INC, to the prejudice of other religions. Finally, other than this single transaction with INC, this Court did not
find PhilPost to have been unneccesarily involved in INC's affairs.
Based on the foregoing, this Court is not convinced that PhilPost has actually used its resources to endorse,
nor encourage Filipinos to join INC or observe the latter's doctrines. On the contrary, this Court agrees with
respondents that the printing of the INC commemorative stamp was endeavored merely as part of PhilPost's
ordinary business.
In the same vein, We do not find that there was illegal disbursement of funds under Section 29(2) of Article
VI of the Constitution. The application of this prohibition towards government acts was already clarified by
the Court in Re: Letter of Tony Q. Valenciano, Holding Of Religious Rituals At The Hall Of Justice Building In
Quezon City:66
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or property shall be
appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or
other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular purpose." "Appropriate" means "to prescribe a
particular use for particular moneys or to designate or destine a fund or property for a distinct use, or for
the payment of a particular demand."
Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally
susceptible of various meanings, its correct construction may be made clear and specific by considering the
company of words in which it is found with or with which it is associated. This is because a word or phrase in
a statute is always used in association with other words or phrases, and its meaning may, thus, be modified
or restricted by the latter. The particular words, clauses and phrases should not be studied as detached and
isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. A statute must be so construed as to
harmonize and give effect to all its provisions whenever possible.
Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is the use of
public money or property for the sole purpose of benefiting or supporting any church. The
prohibition contemplates a scenario where the appropriation is primarily intended for the furtherance of a
particular church.
It has also been held that the aforecited constitutional provision "does not inhibit the use of public
property for religious purposes when the religious character of such use is merely incidental to a
temporary use which is available indiscriminately to the public in general." Hence, a public street
may be used for a religious procession even as it is available for a civic parade, in the same way that a
public plaza is not barred to a religious rally if it may also be used for a political assemblage.
In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of public money
or property, not as to whether a particular act involves a direct or a mere incidental benefit to any church.
Otherwise, the framers of the Constitution would have placed it before "use, benefit or support" to describe
the same. Even the exception to the same provision bolsters this interpretation. The exception contemplates
a situation wherein public funds are paid to a priest, preacher, minister, or other religious teacher, or
dignitary because they rendered service in the armed forces, or to any penal institution, or government
orphanage or leprosarium. That a priest belongs to a particular church and the latter may have benefited
from the money he received is of no moment, for the purpose of the payment of public funds is merely to
compensate the priest for services rendered and for which other persons, who will perform the same
services will also be compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. As such, the foregoing
interpretation finds support in the Establishment Clause, which is as clear as daylight in stating that what is
proscribed is the passage of any law which tends to establish a religion, not merely to accommodate the free
exercise thereof.67
Indeed, what is prohibited is the State using its resources to solely benefit one religion. As stated above, the
records do not show that the State has been using the resources and manpower of PhilPost for INC's sole
advantage. On the contrary, the stamps printed and issued by PhilPost, as seen through its website, feature
various entities and organizations, other than religious sects.
The design of the INC commemorative stamp is merely an acknowledgment of the historical and
cultural contribution of INC to the Philippine society
Adopting the stance of benevolent neutrality, this Court deems the design of the INC commemorative stamp
constitutionally permissible. As correctly held by the CA, there is an intrinsic historical value in the fact that
Felix Y Manalo is a Filipino and that the INC is a Filipino institution. It explained, thus:
xxx Both matters, "culture" and "national development," are secular in character. Further, it cannot be
denied that the part of the late Felix Y. Manalo's cultural and historical contribution is his founding of the
INC. This circumstance, however, does not immediately put it in a religious light if it is only the historical
fact of establishment which is being mentioned, i.e., adding nothing more and without regard to its doctrine
and teachings.
After arguing that the INC does not contribute to national development because it does not pay taxes,
(petitioner) Peralta now wants this Court to enumerate INC's contributions to national development. This
matter has already been determined by the President of the Philippines, Congress, and the National
Historical Commission. It is not for this Court to question the wisdom of these executive and legislative
issuances nor supplant the same. The task of this Court is to resolve whether the printing of the stamps is
constitutional in light of these executive and legislative determinations.
To reiterate, in the same manner that public property is allowed to be used temporarily by different religions
like roads or parks, the philatelic services and products offered by (respondent) PhilPost for valuable
consideration, can be availed of not only by the INC but by other people or organizations as well. For the
above-stated reasons, this Court maintains its finding that the printing and issuance of the INC Centennial
stamps did not contravene Section 29 (2), Article VI of the 1987 Constitution. Besides, (petitioner's) cause
of action, which is injunction, necessarily fails as there is nothing more to restrain or enjoin.68
Thus, this Court sees no religious overtones surrounding the commemorative stamps, as insisted upon by
the petitioner.
In the case of Aglipay,69 the issuance and sale of postage stamps commemorating the Thirty-third
International Eucharistic Congress was assailed on the ground that it violated the constitutional prohibition
against the appropriation of public money or property for the benefit of any church. In ruling that there was
no such violation, the Court, through Justice Jose P. Laurel, held that:
xxx It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably
linked with an event of a religious character, the resulting propaganda, if any, received by the Roman
Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply because of incidental results, more or less
religious in character, if the purpose had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its subordination to mere
incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S., 295; 20 Sup. Ct. Rep., 121;
44 Law. ed., 168.).[Emphasis Supplied.]
Indeed, the design depicted in the INC commemorative stamp is merely a recognition of the continuous
existence of a group that is strictly Filipino. As compared to major religious groups established in the
country, Felix Y. Manalo, and the INC, are not plain religious symbols, but also a representation of a group
that is distinctly unique to the Philippines. To the mind of this Court, the use of the facade of the Church and
the image of Felix Y. Manalo is nothing more than an acknowledgment of a historical milestone. It does not
endorse, establish or disparage other religious groups and even non-believers, especially considering the
fact that PhilPost also print stamps with symbols which can arguably be connected to religion. In the case
of Manosca vs. Court of Appeals,70 this Court has already recognized Manalo's contribution to the Filipino
society:
Petitioners ask: But "(w)hat is the so-called unusual interest that the expropriation of (Felix Manalo's)
birthplace become so vital as to be a public use appropriate for the exercise of the power of eminent
domain" when only members of the Iglesia ni Cristo would benefit? This attempt to give some religious
perspective to the case deserves little consideration, for what should be significant is the principal objective
of, not the casual consequences that might follow from, the exercise of the power. The purpose in setting up
the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the
culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia
ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than
by most others could well be true but such a peculiar advantage still remains to be merely incidental and
secondary in nature. Indeed, that only a few would actually benefit from the expropriation of property does
not necessarily diminish the essence and character of public use. (Emphasis ours)
To debunk petitioner's claim that Section 29, Article VI of the 1987 Constitution71 was violated, We agree
with PhilPost's view that:
xxx the printing and issuance of the assailed commemorative stamps were not inspired by any sectarian
denomination. The stamps were neither for the benefit of INC, nor money derived from their sale inured to
its benefit. xxx the stamps delivered to INC were not free of charge and whatever income derived from the
sale to INC and of the excess to the postal clients were not given to INC, but went to the coffers of
PhilPost.72
All told, therefore, the Court finds no reason or basis to grant the petition. In refusing to declare
unconstitutional the INC's commemorative stamp, this Court is merely applying jurisprudentially sanctioned
policy of benevolent neutrality. To end, it bears to emphasize that the Constitution establishes separation of
the Church and the State, and not separation of religion and state.73
WHEREFORE, We DENY the petition. We AFFIRM the July 24, 2015 Decision, as well as the March 8, 2016
Resolution, of the Court of Appeals, in CA-G.R. CV No. 103151.
SO ORDERED.
G.R. No. 144801. March 10, 2005
DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA,

JERRY CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO DIZON, SALVADOR
GELSANO and BENITO LAUGO, Petitioners,
vs.
BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN
BORDAS, Respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of
Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial
Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of
jurisdiction.
The antecedents show that petitioners were lay members of the Philippine Independent Church
(PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the
bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by
Dominador Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz
denied their request. It appears from the records that the family of Fr. Florano’s wife belonged to a
political party opposed to petitioner Taruc’s, thus the animosity between the two factions with Fr.
Florano being identified with his wife’s political camp. Bishop de la Cruz, however, found this too
flimsy a reason for transferring Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when
petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong
during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop
tried to dissuade him from pushing through with it because Fr. Ambong was not a member of the
clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also
appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to the best
interests of the PIC. He likewise advised petitioners to air their complaints before the higher
authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws
and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at
around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as
the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the
Philippine Independent Church for reasons of:
(1) disobedience to duly constituted authority in the Church;
(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia
Filipina Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the Plaza
on June 19, 1996; and
(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general
membership.1
Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his
letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down voluntarily
to avert the hostility and enmity among the members of the PIC parish in Socorro but stated that:
… I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish….2
In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced
by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for
transferring Fr. Florano to another parish. He issued a circular denying petitioners’ persistent clamor
for the transfer/re-assignment of Fr. Florano. Petitioners were informed of such denial but they
continued to celebrate mass and hold other religious activities through Fr. Ambong who had been
restrained from performing any priestly functions in the PIC parish of Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City,
Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired
with the Bishop to have petitioners expelled and excommunicated from the PIC. They contended
that their expulsion was illegal because it was done without trial thus violating their right to due
process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of
jurisdiction but it was denied. Their motion for reconsideration was likewise denied so they elevated
the case to the Court of Appeals.
The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal
of the case without prejudice to its being refiled before the proper forum. It held:
… We find it unnecessary to deal on the validity of the excommunication/expulsion of the private

respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers
to be outside the province of the civil courts.
"Civil Courts will not interfere in the internal affairs of a religious organization except for the
protection of civil or property rights. Those rights may be the subject of litigation in a civil court, and
the courts have jurisdiction to determine controverted claims to the title, use, or possession of church
property." (Ibid., p.466)
Obviously, there was no violation of a civil right in the present case.
Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation
and/or protection of a civil or property rights in order for the court a quo to acquire jurisdiction in the
instant case.3
Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a
case involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
In our jurisdiction, we hold the Church and the State to be separate and distinct from each other.
"Give to Ceasar what is Ceasar’s and to God what is God’s." We have, however, observed as early
as 1928 that:
upon the examination of the decisions it will be readily apparent that cases involving questions
relative to ecclesiastical rights have always received the profoundest attention from the courts, not
only because of their inherent interest, but because of the far reaching effects of the decisions in
human society. [However,] courts have learned the lesson of conservatism in dealing with such
matters, it having been found that, in a form of government where the complete separation of civil
and ecclesiastical authority is insisted upon, the civil courts must not allow themselves to intrude
unduly in matters of an ecclesiastical nature.4 (italics ours)
We agree with the Court of Appeals that the expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the officials, and the laws and canons,
of said institution/organization. It is not for the courts to exercise control over church authorities in
the performance of their discretionary and official functions. Rather, it is for the members of religious
institutions/organizations to conform to just church regulations. In the words of Justice Samuel F.
Miller5:
… all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the
Church government and they are bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,6 we enunciated the doctrine that in disputes
involving religious institutions or organizations, there is one area which the Court should not touch:
doctrinal and disciplinary differences.7 Thus,
The amendments of the constitution, restatement of articles of religion and abandonment of faith or
abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and having reference to the power of excluding
from the church those allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts. (emphasis ours)
We would, however, like to comment on petitioners’ claim that they were not heard before they were
expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several
times not to commit acts inimical to the best interests of PIC. They were also warned of the
consequences of their actions, among them their expulsion/excommunication from PIC. Yet, these
pleas and warnings fell on deaf ears and petitioners went ahead with their plans to defy their Bishop
and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They
should now take full responsibility for the chaos and dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.
G.R. No. 124382 August 16, 1999
PASTOR DIONISIO V. AUSTRIA, petitioner,

vs.
HON. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), CEBU CITY, CENTRAL
PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS, ELDER
HECTOR V. GAYARES, PASTORS REUBEN MORALDE, OSCAR L. ALOLOR, WILLIAM U.
DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT, ISACHAR GARSULA, ELISEO DOBLE,
PORFIRIO BALACY, DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO, MR.
EUFRONIO IBESATE, MRS. TESSIE BALACY, MR. ZOSIMO KARA-AN, and MR. ELEUTERIO
LOBITANA, respondents.
KAPUNAN, J.:
Subject of the instant petition for certiorari under Rule 65 of the Rules of Court is the Resolution1 of
public respondent National Labor Relations Commission (the "NLRC"), rendered on 23 January
1996, in NLRC Case No. V-0120-93, entitled "Pastor Dionisio V. Austria vs. Central Philippine Union
Mission Corporation of Seventh Day Adventists, et al.," which dismissed the case for illegal dismissal
filed by the petitioner against private respondents for lack of jurisdiction.
1âwphi1.nêt
Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day Adventists
(hereinafter referred to as the "SDA") is a religious corporation duly organized and existing under
Philippine law and is represented in this case by the other private respondents, officers of the SDA.
Petitioner, on the other hand, was a Pastor of the SDA until 31 October 1991, when his services
were terminated.
The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for twenty eight
(28) years from 1963 to 1991.2 He began his work with the SDA on 15 July 1963 as a literature
evangelist, selling literature of the SDA over the island of Negros. From then on, petitioner worked
his way up the ladder and got promoted several times. In January, 1968, petitioner became the
Assistant Publishing Director in the West Visayan Mission of the SDA. In July, 1972, he was
elevated to the position of Pastor in the West Visayan Mission covering the island of Panay, and the
provinces of Romblon and Guimaras. Petitioner held the same position up to 1988. Finally, in 1989,
petitioner was promoted as District Pastor of the Negros Mission of the SDA and was assigned at
Sagay, Balintawak and Toboso, Negros Occidental, with twelve (12) churches under his jurisdiction.
In January, 1991, petitioner was transferred to Bacolod City. He held the position of district pastor
until his services were terminated on 31 October 1991.
On various occasions from August up to October, 1991, petitioner received several

communications3 from Mr. Eufronio Ibesate, the treasurer of the Negros Mission asking him to admit
accountability and responsibility for the church tithes and offerings collected by his wife, Mrs. Thelma
Austria, in his district which amounted to P15,078.10, and to remit the same to the Negros Mission.
In his written explanation dated 11 October 1991,4 petitioner reasoned out that he should not be
made accountable for the unremitted collections since it was private respondents Pastor Gideon
Buhat and Mr. Eufronio Ibesate who authorized his wife to collect the tithes and offerings since he
was very sick to do the collecting at that time.
Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of Pastor Buhat,
the president of the Negros Mission. During said call, petitioner tried to persuade Pastor Buhat to
convene the Executive Committee for the purpose of settling the dispute between him and the
private respondent, Pastor David Rodrigo. The dispute between Pastor Rodrigo and petitioner arose
from an incident in which petitioner assisted his friend, Danny Diamada, to collect from Pastor
Rodrigo the unpaid balance for the repair of the latter's motor vehicle which he failed to pay to
Diamada.5 Due to the assistance of petitioner in collecting Pastor Rodrigo's debt, the latter harbored
ill-feelings against petitioner. When news reached petitioner that Pastor Rodrigo was about to file a
complaint against him with the Negros Mission, he immediately proceeded to the office of Pastor
Buhat on the date abovementioned and asked the latter to convene the Executive Committee.
Pastor Buhat denied the request of petitioner since some committee members were out of town and
there was no quorum. Thereafter, the two exchanged heated arguments. Petitioner then left the
office of Pastor Buhat. While on his way out, petitioner overheard Pastor Buhat saying, "Pastor daw
inisog na ina iya (Pador you are talking tough)."6 Irked by such remark, petitioner returned to the
office of Pastor Buhat, and tried to overturn the latter's table, though unsuccessfully, since it was
heavy. Thereafter, petitioner banged the attaché case of Pastor Buhat on the table, scattered the
books in his office, and threw the phone.7 Fortunately, private respondents Pastors Yonilo Leopoldo
and Claudio Montaño were around and they pacified both Pastor Buhat and petitioner.
On 17 October 1991, petitioner received a letter8 inviting him and his wife to attend the Executive
Committee meeting at the Negros Mission Conference Room on 21 October 1991, at nine in the
morning. To be discussed in the meeting were the non-remittance of church collection and the
events that transpired on 16 October 1991. A fact-finding committee was created to investigate
petitioner. For two (2) days, from October 21 and 22, the fact-finding committee conducted an
investigation of petitioner. Sensing that the result of the investigation might be one-sided, petitioner
immediately wrote Pastor Rueben Moralde, president of the SDA and chairman of the fact-finding
committee, requesting that certain members of the fact-finding committee be excluded in the
investigation and resolution of the case.9 Out of the six (6) members requested to inhibit themselves
from the investigation and decision-making, only two (2) were actually excluded, namely: Pastor
Buhat and Pastor Rodrigo. Subsequently, on 29 October 1991, petitioner received a letter of
dismissal10 citing misappropriation of denominational funds, willful breach of trust, serious
misconduct, gross and habitual neglect of duties, and commission of an offense against the person
of employer's duly authorized representative, as grounds for the termination of his services.
Reacting against the adverse decision of the SDA, petitioner filed a complaint11 on 14 November
1991, before the Labor Arbiter for illegal dismissal against the SDA and its officers and prayed for
reinstatement with backwages and benefits, moral and exemplary damages and other labor law
benefits.
On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered a decision in favor of petitioner, the
dispositive portion of which reads thus:
WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE UNION

MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and its
officers, respondents herein, are hereby ordered to immediately reinstate complainant Pastor
Dionisio Austria to his former position as Pastor of Brgy. Taculing, Progreso and Banago,
Bacolod City, without loss of seniority and other rights and backwages in the amount of ONE
HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00)
without deductions and qualificatioons.
Respondent CPUMCSDA is further ordered to pay complainant the following:
A. 13th month pay — P 21,060.00
B. Allowance — P 4,770.83
C. Service Incentive
Leave Pay — P 3,461.85
D. Moral Damages — P 50,000.00
E. Exemplary
Damages — P 25,000.00
F. Attorney's Fee — P 22,012.27
SO ORDERED.12
The SDA, through its officers, appealed the decision of the Labor Arbiter to the National Labor Labor
Relations Commission, Fourth Division, Cebu City. In a decision, dated 26 August 1994, the NLRC
vacated the findings of the Labor Arbiter. The decretal portion of the NLRC decision states:
WHEREFORE, the Decision appealed from is hereby VACATED and a new one ENTERED
dismissing this case for want of merit.
SO ORDERED.13
Petitioner filed a motion for reconsideration of the above-named decision. On 18 July 1995, the
NLRC issued a Resolution reversing its original decision. The dispositive portion of the resolution
reads:
WHEREFORE, premises considered, Our decision dated August 26, 1994 is VACATED and
the decision of the Labor Arbiter dated February 15, 1993 is REINSTATED.
SO ORDERED.14
In view of the reversal of the original decision of the NLRC, the SDA filed a motion for
reconsideration of the above resolution. Notable in the motion for reconsideration filed by private
respondents is their invocation, for the first time on appeal, that the Labor Arbiter has no jurisdiction
over the complaint filed by petitioner due to the constitutional provision on the separation of church
and state since the case allegedly involved an ecclesiastical affair to which the State cannot
interfere.
The NLRC, without ruling on the merits of the case, reversed itself once again, sustained the
argument posed by private respondents and, accordingly, dismissed the complaint of petitioner. The
dispositive portion of the NLRC resolution dated 23 January 1996, subject of the present petition, is
as follows:
WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is hereby
granted. Accordingly, this case is hereby DISMISSED for lack of jurisdiction.
SO ORDERED.15
Hence, the recourse to this Court by petitioner.

After the filing of the petition, the Court ordered the Office of the Solicitor General (the "OSG") to file
its comment on behalf of public respondent NLRC. Interestingly, the OSG filed a manifestation and
motion in lieu of comment16 setting forth its stand that it cannot sustain the resolution of the NLRC. In
its manifestation, the OSG submits that the termination of petitioner from his employment may be
questioned before the NLRC as the same is secular in nature, not ecclesiastical. After the
submission of memoranda of all the parties, the case was submitted for decision.
The issues to be resolved in this petition are:
1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint
filed by petitioner against the SDA;
2) Whether or not the termination of the services of petitioner is an ecclesiastical affair, and,
as such, involves the separation of church and state; and
3) Whether or not such termination is valid.
The first two issues shall be resolved jointly, since they are related.
Private respondents contend that by virtue of the doctrine of separation of church and state, the
Labor Arbiter and the NLRC have no jurisdiction to entertain the complaint filed by petitioner. Since
the matter at bar allegedly involves the discipline of a religious minister, it is to be considered a
purely ecclesiastical affair to which the State has no right to interfere.
The contention of private respondents deserves scant consideration. The principle of separation of
church and state finds no application in this case.
The rationale of the principle of the separation of church and state is summed up in the familiar
saying, "Strong fences make good-neighbors."17 The idea advocated by this principle is to delineate
the boundaries between the two institutions and thus avoid encroachments by one against the other
because of a misunderstanding of the limits of their respective exclusive jurisdictions.18 The
demarcation line calls on the entities to "render therefore unto Ceasar the things that are Ceasar's
and unto God the things that are God's."19 While the state is prohibited from interfering in purely
ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters.20
The case at bar does not concern an ecclesiastical or purely religious affair as to bar the State from
taking cognizance of the same. An ecclesiastical affair is "one that concerns doctrine, creed, or form
of worship of the church, or the adoption and enforcement within a religious association of needful
laws and regulations for the government of the membership, and the power of excluding from such
associations those deemed unworthy of membership.21 Based on this definition, an ecclesiastical
affair involves the relationship between the church and its members and relate to matters of faith,
religious doctrines, worship and governance of the congregation. To be concrete, examples of this
so-called ecclesiastical affairs to which the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and other
activities with attached religious significance. The case at bar does not even remotely concern any of
the abovecited examples. While the matter at hand relates to the church and its religious minister it
does not ipso facto give the case a religious significance. Simply stated, what is involved here is the
relationship of the church as an employer and the minister as an employee. It is purely secular and
has no relation whatsoever with the practice of faith, worship or doctrines of the church. In this case,
petitioner was not ex-communicated or expelled from the membership of the SDA but was
terminated from employment. Indeed, the matter of terminating an employee, which is purely secular
in nature, is different from the ecclesiastical act of expelling a member from the religious
congregation.
As pointed out by the OSG in its memorandum, the grounds invoked for petitioner's dismissal,
namely: misappropriation of denominational funds, willful breach of trust, serious misconduct, gross
and habitual neglect of duties and commission of an offense against the person of his employer's
duly authorized representative, are all based on Article 282 of the Labor Code which enumerates the
just causes for termination of employment.22 By this alone, it is palpable that the reason for
petitioner's dismissal from the service is not religious in nature. Coupled with this is the act of the
SDA in furnishing NLRC with a copy of petitioner's letter of termination. As aptly stated by the OSG,
this again is an eloquent admission by private respondents that NLRC has jurisdiction over the case.
Aside from these, SDA admitted in a certification23 issued by its officer, Mr. Ibesate, that petitioner
has been its employee for twenty-eight (28) years. SDA even registered petitioner with the Social
Security System (SSS) as its employee. As a matter of fact, the worker's records of petitioner have
been submitted by private respondents as part of their exhibits. From all of these it is clear that when
the SDA terminated the services of petitioner, it was merely exercising its management prerogative
to fire an employee which it believes to be unfit for the job. As such, the State, through the Labor
Arbiter and the NLRC, has the right to take cognizance of the case and to determine whether the
SDA, as employer, rightfully exercised its management prerogative to dismiss an employee. This is
in consonance with the mandate of the Constitution to afford full protection to labor.
Under the Labor Code, the provision which governs the dismissal of employees, is comprehensive
enough to include religious corporations, such as the SDA, in its coverage. Article 278 of the Labor
Code on post-employment states that "the provisions of this Title shall apply to all establishments or
undertakings, whether for profit or not." Obviously, the cited article does not make any exception in
favor of a religious corporation. This is made more evident by the fact that the Rules Implementing
the Labor Code, particularly, Section 1, Rule 1, Book VI on the Termination of Employment and
Retirement, categorically includes religious institutions in the coverage of the law, to wit:
Sec. 1. Coverage. — This Rule shall apply to all establishments and undertakings, whether
operated for profit or not, including educational, medical, charitable and religious institutions
and organizations, in cases of regular employment with the exception of the Government and
its political subdivisions including government-owned or controlled corporations.24
With this clear mandate, the SDA cannot hide behind the mantle of protection of the doctrine of
separation of church and state to avoid its responsibilities as an employer under the Labor Code.
Finally, as correctly pointed out by petitioner, private respondents are estopped from raising the
issue of lack of jurisdiction for the first time on appeal. It is already too late in the day for private
respondents to question the jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully
participated in the trials and hearings of the case from start to finish. The Court has already ruled
that the active participation of a party against whom the action war brought, coupled with his failure
to object to the jurisdiction of the court or quasi-judicial body where the action is pending, is
tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the
case and will bar said party from later on impugning the court or body's jurisdiction.25 Thus, the active
participation of private respondents in the proceedings before the Labor Arbiter and the NLRC
mooted the question on jurisdiction.
The jurisdictional question now settled, we shall now proceed to determine whether the dismissal of
petitioner was valid.
At the outset, we note that as a general rule, findings of fact of administrative bodies like the NLRC
are binding upon this Court. A review of such findings is justified, however, in instances when the
findings of the NLRC differ from those of the labor arbiter, as in this case.26 When the findings of
NLRC do not agree with those of the Labor Arbiter, this Court must of necessity review the records
to determine which findings should be preferred as more comfortable to the evidentiary facts.27
We turn now to the crux of the matter. In termination cases, the settled rule is that the burden of
proving that the termination was for a valid or authorized cause rests on the employer.28 Thus,
private respondents must not merely rely on the weaknesses of petitioner's evidence but must stand
on the merits of their own defense.
The issue being the legality of petitioner's dismissal, the same must be measured against the
requisites for a valid dismissal, namely: (a) the employee must be afforded due process, i.e., he
must be given an opportunity to be heard and to defend himself, and; (b) the dismissal must be for a
valid cause as provided in Article 282 of the Labor Code.29 Without the concurrence of this twin
requirements, the termination would, in the eyes of the law, be illegal.30
Before the services of an employee can be validly terminated, Article 277 (b) of the Labor Code and
Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require the
employer to furnish the employee with two (2) written notices, to wit: (a) a written notice served on
the employee specifying the ground or grounds for termination, and giving to said employee
reasonable opportunity within which to explain his side; and, (b) a written notice of termination
served on the employee indicating that upon due consideration of all the circumstances, grounds
have been established to justify his termination.
The first notice, which may be considered as the proper charge, serves to apprise the employee of
the particular acts or omissions for which his dismissal is sought.31 The second notice on the other
hand seeks to inform the employee of the employer's decision to dismiss him.32 This decision,
however, must come only after the employee is given a reasonable period from receipt of the first
notice within which to answer the charge and ample opportunity to be heard and defend himself with
the assistance of a representative, if he so desires.33 This is in consonance with the express
provision of the law on the protection to labor and the broader dictates of procedural due
process.34 Non-compliance therewith is fatal because these requirements are conditions sine
qua non before dismissal may be validly effected.35
Private respondent failed to substantially comply with the above requirements. With regard to the
first notice, the letter,36 dated 17 October 1991, which notified petitioner and his wife to attend the
meeting on 21 October 1991, cannot be construed as the written charge required by law. A perusal
of the said letter reveals that it never categorically stated the particular acts or omissions on which
petitioner's impending termination was grounded. In fact, the letter never even mentioned that
petitioner would be subject to investigation. The letter merely mentioned that petitioner and his wife
were invited to a meeting wherein what would be discussed were the alleged unremitted church
tithes and the events that transpired on 16 October 1991. Thus, petitioner was surprised to find out
that the alleged meeting turned out to be an investigation. From the tenor of the letter, it cannot be
presumed that petitioner was actually on the verge of dismissal. The alleged grounds for the
dismissal of petitioner from the service were only revealed to him when the actual letter of dismissal
was finally issued. For this reason, it cannot be said that petitioner was given enough opportunity to
properly prepare for his defense. While admittedly, private respondents complied with the second
requirement, the notice of termination, this does not cure the initial defect of lack of the proper
written charge required by law.
In the letter of termination,37 dated 29 October 1991, private respondents enumerated the following
as grounds for the dismissal of petitioner, namely: misappropriation of denominational funds, willful
breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an
offense against the person of employer's duly authorized representative. Breach of trust and
misappropriation of denominational funds refer to the alleged failure of petitioner to remit to the
treasurer of the Negros Mission tithes, collections and offerings amounting to P15,078.10 which
were collected by his wife, Mrs. Thelma Austria, in the churches under his jurisdiction. On the other
hand, serious misconduct and commission of an offense against the person of the employer's duly
authorized representative pertain to the 16 October 1991 incident wherein petitioner allegedly
committed an act of violence in the office of Pastor Gideon Buhat. The final ground invoked by
private respondents is gross and habitual neglect of duties allegedly committed by petitioner.
We cannot sustain the validity of dismissal based on the ground of breach of trust. Private
respondents allege that they have lost their confidence in petitioner for his failure, despite demands,
to remit the tithes and offerings amounting to P15,078.10, which were collected in his district. A
careful study of the voluminous records of the case reveals that there is simply no basis for the
alleged loss of confidence and breach of trust. Settled is the rule that under Article 282 (c) of the
Labor Code, the breach of trust must be willful. A breach is willful if it is done intentionally, knowingly
and purposely, without justifiable excuse, as distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently.38 It must rest on substantial grounds and not on the
employer's arbitrariness, whims, caprices or suspicion; otherwise the employee would eternally
remain at the mercy of the employer.39 It should be genuine and not simulated.40 This ground has
never been intended to afford an occasion for abuse, because of its subjective nature. The records
show that there were only six (6) instances when petitioner personally collected and received from
the church treasurers the tithes, collections, and donations for the church.41 The stenographic notes
on the testimony of Naomi Geniebla, the Negros Mission Church Auditor and a witness for private
respondents, show that Pastor Austria was able to remit all his collections to the treasurer of the
Negros Mission.42
Though private respondents were able to establish that petitioner collected and received tithes and
donations several times, they were notable to establish that petitioner failed to remit the same to the
Negros Mission, and that he pocketed the amount and used it for his personal purpose. In fact, as
admitted by their own witness, Naomi Geniebla, petitioner remitted the amounts which he collected
to the Negros Mission for which corresponding receipts were issued to him. Thus, the allegations of
private respondents that petitioner breached their trust have no leg to stand on.
In a vain attempt to support their claim of breach of trust, private respondents try to pin on petitioner
the alleged non-remittance of the tithes collected by his wife. This argument deserves little
consideration. First of all, as proven by convincing and substantial evidence consisting of the
testimonies of the witnesses for private respondents who are church treasurers, it was Mrs. Thelma
Austria who actually collected the tithes and donations from them, and, who failed to remit the same
to the treasurer of the Negros Mission. The testimony of these church treasurers were corroborated
and confirmed by Ms. Geniebla and Mr. Ibesate, officers of the SDA. Hence, in the absence of
conspiracy and collusion, which private respondents failed to demonstrate, between petitioner and
his wife, petitioner cannot be made accountable for the alleged infraction committed by his wife.
After all, they still have separate and distinct personalities. For this reason, the Labor Arbiter found it
difficult to see the basis for the alleged loss of confidence and breach of trust. The Court does not
find any cogent reason, therefore, to digress from the findings of the Labor Arbiter which is fully
supported by the evidence on record.
With respect to the grounds of serious misconduct and commission of an offense against the person
of the employer's duly authorized representative, we find the same unmeritorious and, as such, do
not warrant petitioner's dismissal from the service.
Misconduct has been defined as improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgment.43 For misconduct to be considered serious it
must be of such grave and aggravated character and not merely trivial or unimportant.44 Based on
this standard, we believe that the act of petitioner in banging the attaché case on the table, throwing
the telephone and scattering the books in the office of Pastor Buhat, although improper, cannot be
considered as grave enough to be considered as serious misconduct. After all, as correctly observed
by the Labor Arbiter, though petitioner committed damage to property, he did not physically assault
Pastor Buhat or any other pastor present during the incident of 16 October 1991. In fact, the alleged
offense committed upon the person of the employer's representatives was never really established
or proven by private respondents. Hence, there is no basis for the allegation that petitioner's act
constituted serious misconduct or that the same was an offense against the person of the employer's
duly authorized representative. As such, the cited actuation of petitioner does not justify the ultimate
penalty of dismissal from employment. While the Constitution does condone wrongdoing by the
employee, it nevertheless urges a moderation of the sanctions that may be applied to him in light of
the many disadvantages that weigh heavily on him like an albatross on his neck.45 Where a penalty
less punitive would suffice, whatever missteps may have been committed by the worker ought not be
visited with a consequence so severe such as dismissal from employment.46 For the foregoing
reasons, we believe that the minor infraction committed by petitioner does not merit the ultimate
penalty of dismissal.
The final ground alleged by private respondents in terminating petitioner, gross and habitual neglect
of duties, does not require an exhaustive discussion. Suffice it to say that all private respondents had
were allegations but not proof. Aside from merely citing the said ground, private respondents failed
to prove culpability on the part of petitioner. In fact, the evidence on record shows otherwise.
Petitioner's rise from the ranks disclose that he was actually a hard-worker. Private respondents'
evidence,47 which consisted of petitioner's Worker's Reports, revealed how petitioner travelled to
different churches to attend to the faithful under his care. Indeed, he labored hard for the SDA, but,
in return, he was rewarded with a dismissal from the service for a non-existent cause.
In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was terminated
from service without just or lawful cause. Having been illegally dismissed, petitioner is entitled to
reinstatement to his former position without loss of seniority right48 and the payment of full
backwages without any deduction corresponding to the period from his illegal dismissal up to actual
reinstatement.46
WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of public
respondent National Labor Relations Commission, rendered on 23 January 1996, is NULLIFIED and
SET ASIDE. The Decision of the Labor Arbiter, dated 15 February 1993, is REINSTATED and
hereby AFFIRMED. 1âwphi1.nêt
SO ORDERED.
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, complainant,

vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where man stands accountable
to an authority higher than the state. To be held on balance are the state's interest and the
respondent's religious freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking religious freedom, the
consequences of the case are not only temporal. The task is not made easier by the American origin
of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United
States, there is probably no more intensely controverted area of constitutional interpretation than the
religion clauses.1 The U.S. Supreme Court itself has acknowledged that in this constitutional area,
there is "considerable internal inconsistency in the opinions of the Court."2 As stated by a professor
of law, "(i)t is by now notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and
inconsistency achieved such undisputed sovereignty."3 Nevertheless, this thicket is the only path to
take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and
panoramic view this climb would provide will largely chart the course of religious freedom in
Philippine jurisdiction. That the religious freedom question arose in an administrative case involving
only one person does not alter the paramount importance of the question for the "constitution
commands the positive protection by government of religious freedom -not only for a minority,
however small- not only for a majority, however large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her plea of religious freedom.
It is necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose
F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for
an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living
with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is
not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of
Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is
committing an immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of
the allegation" and challenged Estrada to "appear in the open and prove his allegation in the proper
forum."6 Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the
inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed
an administrative complaint against him and said case was still pending in the Office of the Court
Administrator (OCA). Escritor's motion was denied. The preliminary conference proceeded with both
Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality
against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he learned
from conversations therein that Escritor was living with a man not her husband and that she had an
eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and Escritor's live-in arrangement did
not command respect.7
Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow,
her husband having died in 1998.9 She admitted that she has been living with Luciano Quilapio, Jr.
without the benefit of marriage for twenty years and that they have a son. But as a member of the
religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done all within my ability to obtain legal recognition of
this relationship by the proper public authorities and that it is because of having been unable
to do so that I therefore make this public declaration pledging faithfulness in this marital
relationship.
I recognize this relationship as a binding tie before 'Jehovah' God and before all persons to
be held to and honored in full accord with the principles of God's Word. I will continue to seek
the means to obtain legal recognition of this relationship by the civil authorities and if at any
future time a change in circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor's partner, Quilapio, executed a similar pledge on the same day.11 Both pledges were
executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her
pledge, her husband was still alive but living with another woman. Quilapio was likewise married at
that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to
present members of her congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered her identification of her
signature and the signature of Quilapio sufficient authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn,
endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon
recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on
the charge against her. In her comment, Escritor reiterated her religious congregation's approval of
her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state with candor
that there is no truth as to the veracity of same allegation. Included herewith are documents
denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by
both respondent and her mate in marital relationship with the witnesses concurring their
acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before
all persons to be held to and honored in full accord with the principles of God's Word.
xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification
from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which
undersigned believes to be a high authority in relation to her case.13
Deputy Court Administrator Christopher O. Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report
and recommendation. In the course of Judge Maceda's investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which explain the basis of her
congregation's belief and practice regarding her conjugal arrangement. Escritor started living with
Quilapio twenty years ago when her husband was still alive but living with another woman. She met
this woman who confirmed to her that she was living with her (Escritor's) husband.14
Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He had been a
presiding minister since 1991 and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for executing a "Declaration of Pledging
Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some
particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved
and then we request them to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who
are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized member and
true member of the congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital
relationship (sic) gives the Christian Congregation view that the couple has put themselves
on record before God and man that they are faithful to each other. As if that relation is
validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document between

the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of

faithfulness.
Q: And what does pledge mean to you?

A: It means to me that they have contracted, let us say, I am the one who contracted
with the opposite member of my congregation, opposite sex, and that this document will give
us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a

preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same
roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital
relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties
have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we
Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse
Twenty-two. So, in that verse of the Bible, Jesus said "that everyone divorcing his wife,
except on account of fornication, makes her a subject for adultery, and whoever marries a
divorced woman commits adultery.15
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation in Las Piñas,
in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no
personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar inquired about their status
from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of
their declarations. The Almanza Congregation assumed that the personal circumstances of the
couple had been considered by the Atimonan Congregation when they executed their declarations.
Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were
executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society
which was lifted from the article, "Maintaining Marriage in Honor Before God and Men,"16 in the
March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah's Witnesses congregation and is
binding within the congregation all over the world except in countries where divorce is allowed. The
Jehovah's congregation requires that at the time the declarations are executed, the couple cannot
secure the civil authorities' approval of the marital relationship because of legal impediments. It is
thus standard practice of the congregation to check the couple's marital status before giving
imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in
Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital
status of the declarants and their respective spouses' commission of adultery are investigated before
the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza Congregation. That Escritor's and
Quilapio's declarations were approved are shown by the signatures of three witnesses, the elders in
the Atimonan Congregation. Salazar confirmed from the congregation's branch office that these
three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed,
thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry.
Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can
already register their marriage with the civil authorities and the validity of the declarations ceases.
The elders in the congregations can then solemnize their marriage as authorized by Philippine law.
In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and Quilapio and they remain members in good standing in
the congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah's
Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society
of the Philippines, Inc., presented the original copy of the magazine article entitled, "Maintaining
Marriage Before God and Men" to which Escritor and Minister Salazar referred in their testimonies.
The article appeared in the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovah's Witnesses congregations which also distribute them to the public.18
The parties submitted their respective memoranda to the investigating judge. Both stated that the
issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is
valid and binding in their own religious congregation, the Jehovah's Witnesses. Complainant Estrada
adds however, that the effect of the relationship to Escritor's administrative liability must likewise be
determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness
recognizes the supremacy of the "proper public authorities" such that she bound herself "to seek
means to . . . legalize their union." Thus, even assuming arguendo that the declaration is valid and
binding in her congregation, it is binding only to her co-members in the congregation and serves only
the internal purpose of displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice, however, cannot override
the norms of conduct required by law for government employees. To rule otherwise would create a
dangerous precedent as those who cannot legalize their live-in relationship can simply join the
Jehovah's Witnesses congregation and use their religion as a defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with
Quilapio based on the belief and practice of her religion, the Jehovah's Witnesses. She quoted
portions of the magazine article entitled, "Maintaining Marriage Before God and Men," in her
memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the
respondent and her mate greatly affect the administrative liability of respondent. Jehovah's
Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the
marriage arrangement. However, it is helpful to understand the relative nature of Caesar's
authority regarding marriage. From country to country, marriage and divorce legislation
presents a multitude of different angles and aspects. Rather than becoming entangled in a
confusion of technicalities, the Christian, or the one desiring to become a disciple of God's
Son, can be guided by basic Scriptural principles that hold true in all cases.
God's view is of first concern. So, first of all the person must consider whether that one's
present relationship, or the relationship into which he or she contemplates entering, is one
that could meet with God's approval, or whether in itself, it violates the standards of God's
Word. Take, for example, the situation where a man lives with a wife but also spends time
living with another woman as a concubine. As long as such a state of concubinage prevails,
the relationship of the second woman can never be harmonized with Christian principles, nor
could any declaration on the part of the woman or the man make it so. The only right course
is cessation of the relationship. Similarly with an incestuous relationship with a member of
one's immediate family, or a homosexual relationship or other such situation condemned by
God's Word. It is not the lack of any legal validation that makes such relationships
unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person
involved in such a situation could not make any kind of "Declaration of Faithfulness," since it
would have no merit in God's eyes.
If the relationship is such that it can have God's approval, then, a second principle to
consider is that one should do all one can to establish the honorableness of one's marital
union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be
taken so that, having obtained the divorce (on whatever legal grounds may be available), the
present union can receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of God's Word,
and if one has done all that can reasonably be done to have it recognized by civil authorities
and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed.
In some cases, as has been noted, the extreme slowness of official action may make
accomplishing of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need years to be able to
meet. In such cases, the declaration pledging faithfulness will provide the congregation with
the basis for viewing the existing union as honorable while the individual continues
conscientiously to work out the legal aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah
God, should be able to approach the matter in a balanced way, neither underestimating nor
overestimating the validation offered by the political state. She always gives primary concern
to God's view of the union. Along with this, every effort should be made to set a fine example
of faithfulness and devotion to one's mate, thus, keeping the marriage "honorable among
all." Such course will bring God's blessing and result to the honor and praise of the author of
marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that complainant's Memorandum
came from Judge Caoibes' chambers21 whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritor's factual allegations
credible as they were supported by testimonial and documentary evidence. He also noted that "(b)y
strict Catholic standards, the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: 'that which is willful, flagrant, or shameless, and which shows a
moral indifference to the opinion of the good and respectable members of the community' (7 C.J.S.
959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more
relevant question is whether or not to exact from respondent Escritor, a member of 'Jehovah's
Witnesses,' the strict moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar."22 The investigating judge acknowledged that "religious freedom is a
fundamental right which is entitled to the highest priority and the amplest protection among human
rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing
Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514,
530-531)" and thereby recommended the dismissal of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge Maceda, the Office of the
Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court
Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed
from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had
become capacitated to marry by the time she joined the judiciary as her husband had died a year
before, "it is due to her relationship with a married man, voluntarily carried on, that respondent may
still be subject to disciplinary action."24 Considering the ruling of the Court in Dicdican v. Fernan, et
al.25 that "court personnel have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name and integrity of
the court of justice," DCA Lock found Escritor's defense of freedom of religion unavailing to warrant
dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty
of immorality and that she be penalized with suspension of six months and one day without pay with
a warning that a repetition of a similar act will be dealt with more severely in accordance with the
Civil Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative charge of "gross and immoral
conduct." To resolve this issue, it is necessary to determine the sub-issue of whether or not
respondent's right to religious freedom should carve out an exception from the prevailing
jurisprudence on illicit relations for which government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct" under Book V, Title I, Chapter
VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs and
practices and moral standards of her religion, the Jehovah's Witnesses, in asserting that her
conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral
conduct for which she should be held administratively liable. While not articulated by respondent,
she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to understand not only its
birth in the United States, but its conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots of these controversies in
the ancient and medieval world and in the American experience.27 This fresh look at the religion
clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every significant event in the
primitive man's life, from birth to death, was marked by religious ceremonies. Tribal society survived
because religious sanctions effectively elicited adherence to social customs. A person who broke a
custom violated a taboo which would then bring upon him "the wrathful vengeance of a superhuman
mysterious power."28 Distinction between the religious and non-religious would thus have been
meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy
and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the
king protected his wards against both human and superhuman enemies. In time, the king not only
interceded for his people with the divine powers, but he himself was looked upon as a divine being
and his laws as divine decrees.29
Time came, however, when the function of acting as intermediary between human and spiritual
powers became sufficiently differentiated from the responsibility of leading the tribe in war and
policing it in peace as to require the full-time services of a special priest class. This saw the birth of
the social and communal problem of the competing claims of the king and priest. Nevertheless, from
the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and
although he also performed priestly functions, he carried out these functions because he was the
head and representative of the community.30
There being no distinction between the religious and the secular, the same authority that
promulgated laws regulating relations between man and man promulgated laws concerning man's
obligations to the supernatural. This authority was the king who was the head of the state and the
source of all law and who only delegated performance of rituals and sacrifice to the priests. The
Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other
crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for
inheritance of property;31 and also catalogued the gods and assigned them their places in the divine
hierarchy so as to put Hammurabi's own god to a position of equality with existing gods.32 In sum,
the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of
the two forces, with the state almost universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to describe the relation of the
Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed
to God.34 The Mosaic creed was not merely regarded as the religion of the state, it was (at least until
Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince.
As man of God, Moses decided when the people should travel and when to pitch camp, when they
should make war and when peace. Saul and David were made kings by the prophet Samuel,
disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with
religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all
because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance
the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by
elevating its city-god to a primary position over the previous reigning gods.35 Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to
further God's purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine
Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of
God.36
Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than
anything else, charted not only the future of religion in western civilization, but equally, the future of
the relationship between religion and state in the west. This fact is acknowledged by many writers,
among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God that
introduced a religious exclusivism leading to compulsion and persecution in the realm of
religion. Ancient religions were regarded as confined to each separate people believing in
them, and the question of change from one religious belief to another did not arise. It was not
until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of
religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not
only superior to the state, but it was all of the state. The Law of God as transmitted through Moses
and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and
David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon
the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet
of God.38 Under Solomon, the subordination of religion to state became complete; he used religion
as an engine to further the state's purposes. He reformed the order of priesthood established by
Moses because the high priest under that order endorsed the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-Christian Rome which engaged in
emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he
placed religion at a high esteem as part of a political plan to establish the real religion of pre-
Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo,
Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.40
The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic
exclusiveness prevented them from paying homage to publicly accepted gods. In the first two
centuries after the death of Jesus, Christians were subjected to persecution. By the time of the
emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race",
placing them in the same category as pirates and brigands and other "enemies of mankind" who
were subject to summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the empire and make its administration
more efficient. But the closely-knit hierarchically controlled church presented a serious problem,
being a state within a state over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure political control over it.
He opted for force and revived the persecution, destroyed the churches, confiscated sacred books,
imprisoned the clergy and by torture forced them to sacrifice.42 But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius
and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians "on
condition that nothing is done by them contrary to discipline."43 A year later, after Galerius died,
Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of
monumental importance in the history of religious liberty. It provided "that liberty of worship shall not
be denied to any, but that the mind and will of every individual shall be free to manage divine affairs
according to his own choice." (emphasis supplied) Thus, all restrictive statutes were abrogated and it
was enacted "that every person who cherishes the desire to observe the Christian religion shall
freely and unconditionally proceed to observe the same without let or hindrance." Furthermore, it
was provided that the "same free and open power to follow their own religion or worship is granted
also to others, in accordance with the tranquillity of our times, in order that every person may have
free opportunity to worship the object of his choice."(emphasis supplied)44
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and
eventually, exclusive power. Religion became an engine of state policy as Constantine considered
Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan,
under the emperor's command, great Christian edifices were erected, the clergy were freed from
public burdens others had to bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine
and his successors called and dismissed church councils, and enforced unity of belief and practice.
Until recently the church had been the victim of persecution and repression, but this time it
welcomed the state's persecution and repression of the nonconformist and the orthodox on the belief
that it was better for heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a
constant struggle of one claiming dominance over the other. In time, however, after the collapse and
disintegration of the Roman Empire, and while monarchical states were gradually being consolidated
among the numerous feudal holdings, the church stood as the one permanent, stable and universal
power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the church's
accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the
union of church and state was now a union of the state in the church. The rulers of the states did not
concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he
himself crowned his own son as successor to nullify the inference of supremacy.45 The whole history
of medieval Europe was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the second quarter of the
13th century, the Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the approval of the church in the bull
Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the
Catholic Church and resulting in the establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the
principle governing the relations between a democratic state and its citizens, history shows that it is
more accurate to say that the "same causes that gave rise to the Protestant revolution also resulted
in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of
separation of church and state."46 Pleas for tolerance and freedom of conscience can without doubt
be found in the writings of leaders of the Reformation. But just as Protestants living in the countries
of papists pleaded for toleration of religion, so did the papists that lived where Protestants were
dominant.47 Papist and Protestant governments alike accepted the idea of cooperation between
church and state and regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.48 Certainly, Luther, leader of the Reformation, stated that "neither pope,
nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man,
unless it be done with his own consent."49 But when the tables had turned and he was no longer the
hunted heretic, he likewise stated when he made an alliance with the secular powers that "(h)eretics
are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful
ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and
of the Pope, who is a devil in disguise."50 To Luther, unity among the peoples in the interests of the
state was an important consideration. Other personalities in the Reformation such as Melanchton,
Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further
religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he
included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.51
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the
Renaissance than the Reformation, wrote that "(t)he terrible papal edict, the more terrible imperial
edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these
things I can see accomplish nothing except to make the evil more widespread."52 The minority or
dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the
17th century, endorsed the supremacy and freedom of the individual conscience. They regarded
religion as outside the realm of political governments.53 The English Baptists proclaimed that the
"magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that
form of religion."54
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed
state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luther's belief that civic cohesion could not exist without religious unity so that
coercion to achieve religious unity was justified. The second was founded on ecclesiastical
supremacy and the use of state machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in the New World, was discernibly
in its incipient form in the arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for
Calvin's theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at
its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen
trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made
of any substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was
complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism attained its present
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . .
as well in all spiritual or ecclesiastical things or causes as temporal." She and her successors were
vested, in their dominions, with "all manner of jurisdictions, privileges, and preeminences, in any
wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell
established the constitution in 1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration which established a de facto
toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when
the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were
finally permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in 1787 to draft the
constitutional foundation of the new republic, the theocratic state which had flourished intermittently
in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-
state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby
one faith was favored as the official state-supported religion, but other faiths were permitted to exist
with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations
the principle of the mutual independence of religion and government and the concomitant principle
that neither might be used as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the
time America declared its independence from the Old World, but their memory was still vivid in the
minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America
had been filled with turmoil, civil strife, and persecution generated in large part by
established sects determined to maintain their absolute political and religious supremacy.
With the power of government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics
of another shade of belief, and all of these had from time to time persecuted Jews. In efforts
to force loyalty to whatever religious group happened to be on top and in league with the
government of a particular time and place, men and women had been fined, cast in jail,
cruelly tortured, and killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views of ministers of
government-established churches, non-attendance at those churches, expressions of non-
belief in their doctrines, and failure to pay taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of church-state relations in
Europe up to the time the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.62
In sum, this history shows two salient features: First, with minor exceptions, the history of church-
state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religion's invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.63
V. Factors Contributing to the Adoption of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England,

established many of the American colonies. British thought pervaded these colonies as the
immigrants brought with them their religious and political ideas from England and English books and
pamphlets largely provided their cultural fare.64 But although these settlers escaped from Europe to
be freed from bondage of laws which compelled them to support and attend government favored
churches, some of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the colonials
authorized them to erect religious establishments, which all, whether believers or not, were required
to support or attend.65 At one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still
others, which originally tolerated only a single religion, eventually extended support to several
different faiths.66
This was the state of the American colonies when the unique American experiment of separation of
church and state came about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of
church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of
the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings
of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism
and deism."67 Each of these factors shall be briefly discussed.
First, the practical factors. England's policy of opening the gates of the American colonies to different
faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords
chose to forego protecting what was considered to be the true and eternal church of a particular time
in order to encourage trade and commerce. The colonies were large financial investments which
would be profitable only if people would settle there. It would be difficult to engage in trade with
persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging
them "to think less of the Church and more of the State and of commerce."68 The diversity brought
about by the colonies' open gates encouraged religious freedom and non-establishment in several
ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn
to live together. Secondly, because of the daily exposure to different religions, the passionate
conviction in the exclusive rightness of one's religion, which impels persecution for the sake of one's
religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents.
Only about four percent of the entire population of the country had a church affiliation at the time the
republic was founded.70 This might be attributed to the drifting to the American colonies of the
skepticism that characterized European Enlightenment.71 Economic considerations might have also
been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also
resulted in much unaffiliated religion which treated religion as a personal non-institutional matter.
The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as
persons who were not connected with any church were not likely to persecute others for similar
independence nor accede to compulsory taxation to support a church to which they did not belong.72
However, for those who were affiliated to churches, the colonial policy regarding their worship
generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred
on Protestant dissenters the right to hold public services subject to registration of their ministers and
places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it nevertheless was of some influence to the
American experiment.74 Even then, for practical considerations, concessions had to be made to other
dissenting churches to ensure their cooperation in the War of Independence which thus had a
unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious
revival originating in New England, caused a break with formal church religion and a resistance to
coercion by established churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God. Thus, although they had no quarrel with
orthodox Christian theology as in fact they were fundamentalists, this group became staunch
advocates of separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode
Island where he established a community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations but on the concept of mutual
independence of religion and government. In 1663, Rhode Island obtained a charter from the British
crown which declared that settlers have it "much on their heart to hold forth a livelie experiment that
a most flourishing civil state may best be maintained . . . with full libertie in religious
concernments."76 In Williams' pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace,77 he articulated the philosophical basis for his
argument of religious liberty. To him, religious freedom and separation of church and state did not
constitute two but only one principle. Religious persecution is wrong because it "confounds the Civil
and Religious" and because "States . . . are proved essentially Civil. The "power of true discerning
the true fear of God" is not one of the powers that the people have transferred to Civil
Authority.78 Williams' Bloudy Tenet is considered an epochal milestone in the history of religious
freedom and the separation of church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of
toleration, having been imprisoned for his religious convictions as a member of the despised
Quakers. He opposed coercion in matters of conscience because "imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative." Aside from his idealism,
proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of
settlers by promising religious toleration, thus bringing in immigrants both from the Continent and
Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups.
Penn was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in the history of
civil liberty which provided among others, for liberty of conscience.80 The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition started by the leaders of their
denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly
contributed to the evolution of separation and freedom.81 The Constitutional fathers who convened in
Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were
very familiar with and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to the American experiment.
The social contract theory popularized by Locke was so widely accepted as to be deemed self-
evident truth in America's Declaration of Independence. With the doctrine of natural rights and
equality set forth in the Declaration of Independence, there was no room for religious discrimination.
It was difficult to justify inequality in religious treatment by a new nation that severed its political
bonds with the English crown which violated the self-evident truth that all men are created equal.83
The social contract theory was applied by many religious groups in arguing against establishment,
putting emphasis on religion as a natural right that is entirely personal and not within the scope of
the powers of a political body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the memorial presented by the
Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every one the
better to preserve himself, his liberty and property. The power of the society, or Legislature
constituted by them, can never be supposed to extend any further than the common good,
but is obliged to secure every one's property. To give laws, to receive obedience, to compel
with the sword, belong to none but the civil magistrate; and on this ground we affirm that the
magistrate's power extends not to establishing any articles of faith or forms of worship, by
force of laws; for laws are of no force without penalties. The care of souls cannot belong to
the civil magistrate, because his power consists only in outward force; but pure and saving
religion consists in the inward persuasion of the mind, without which nothing can be
acceptable to God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was acceptable to both the
religionist and rationalist. To the religionist, God or Christ did not desire that government have that
jurisdiction ("render unto Caesar that which is Caesar's"; "my kingdom is not of this world") and to
the rationalist, the power to act in the realm of religion was not one of the powers conferred on
government as part of the social contract.85
Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the
Revolutionary and post-revolutionary period were also influenced by European deism and
rationalism,86 in general, and some were apathetic if not antagonistic to formal religious worship and
institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among
others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to
the emphasis on secular interests and the relegation of historic theology to the background.87 For
these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state
must be protected from the clutches of the church whose entanglements has caused intolerance and
corruption as witnessed throughout history.88 Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the popularity of Paine's Age of
Reason.89
Finally, the events leading to religious freedom and separation in Virginia contributed significantly to
the American experiment of the First Amendment. Virginia was the "first state in the history of the
world to proclaim the decree of absolute divorce between church and state."90 Many factors
contributed to this, among which were that half to two-thirds of the population were organized
dissenting sects, the Great Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had alienated many influential
laymen with its identification with the Crown's tyranny, and above all, present in Virginia was a group
of political leaders who were devoted to liberty generally,91 who had accepted the social contract as
self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders
were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas
Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in the
Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can
be directed only by reason and conviction, not by force or violence; and therefore, all men
are equally entitled to the free exercise of religion according to the dictates of conscience;
and that it is the mutual duty of all to practice Christian forbearance, love, and charity
towards each other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists,
Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of
establishment. While the majority of the population were dissenters, a majority of the legislature
were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more
oppressive features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the establishment.93 But the dissenters were
not satisfied; they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established church would not
allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill
making permanent the establishment's loss of its exclusive status and its power to tax its members;
but those who voted for it did so in the hope that a general assessment bill would be passed.
Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring
every person to enroll his name with the county clerk and indicate which "society for the purpose of
Religious Worship" he wished to support. On the basis of this list, collections were to be made by the
sheriff and turned over to the clergymen and teachers designated by the religious congregation. The
assessment of any person who failed to enroll in any society was to be divided proportionately
among the societies.94 The bill evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian Religion"
was introduced requiring all persons "to pay a moderate tax or contribution annually for the support
of the Christian religion, or of some Christian church, denomination or communion of Christians, or
for some form of Christian worship."95 This likewise aroused the same opposition to the 1779 bill.
The most telling blow against the 1784 bill was the monumental "Memorial and Remonstrance
against Religious Assessments" written by Madison and widely distributed before the reconvening of
legislature in the fall of 1785.96 It stressed natural rights, the government's lack of jurisdiction over
the domain of religion, and the social contract as the ideological basis of separation while also citing
practical considerations such as loss of population through migration. He wrote, viz:
Because we hold it for a 'fundamental and undeniable truth,' that religion, or the duty which
we owe to our creator, and the manner of discharging it, can be directed only by reason and
conviction, not by force or violence. The religion, then, of every man, must be left to the
conviction and conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because
the opinions of men, depending only on the evidence contemplated in their own minds,
cannot follow the dictates of other men; it is unalienable, also, because what is here a right
towards men, is a duty towards the creator. It is the duty of every man to render the creator
such homage, and such only as he believes to be acceptable to him; this duty is precedent,
both in order of time and degree of obligation, to the claims of civil society. Before any man
can be considered as a member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters into any subordinate
association, must always do it with a reservation of his duty to the general authority, much
more must every man who becomes a member of any particular civil society do it with the
saving his allegiance to the universal sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number
of signatures appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had
not been voted on, the "Bill for Establishing Religious Freedom", and it was finally passed in January
1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by
temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of
hypocrisy and meanness, and are a departure from the plan of the Holy Author of our
religion, who being Lord both of body and mind, yet chose not to propagate it by coercions
on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be compelled to

frequent or support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer
on account of his religious opinions or beliefs, but that all men shall be free to profess, and
by argument to maintain, their opinions in matters of religion, and that the same shall in no
wise diminish, enlarge or affect their civil capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a
general or particular establishment in Virginia.99 But the passage of this law was obtained not only
because of the influence of the great leaders in Virginia but also because of substantial popular
support coming mainly from the two great dissenting sects, namely the Presbyterians and the
Baptists. The former were never established in Virginia and an underprivileged minority of the
population. This made them anxious to pull down the existing state church as they realized that it
was impossible for them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the language of natural
religion.101 Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was
essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and
supernatural, having no relation with the social order.102 To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and state-supported religion was
contrary ti the spirit of the Gospel.103 Thus, separation was necessary.104 Jefferson's religious
freedom statute was a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against government
interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate
in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution
of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI
of the Constitution and the assumed lack of power of Congress to act on any subject not expressly
mentioned in the Constitution.105 However, omission of an express guaranty of religious freedom and
other natural rights nearly prevented the ratification of the Constitution.106 In the ratifying conventions
of almost every state, some objection was expressed to the absence of a restriction on the Federal
Government as regards legislation on religion.107 Thus, in 1791, this restriction was made explicit
with the adoption of the religion clauses in the First Amendment as they are worded to this day, with
the first part usually referred to as the Establishment Clause and the second part, the Free Exercise
Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.
VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment religion clauses comes
an equally broad disagreement as to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in Congress renders it difficult to ascertain its
meaning.108 Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies
whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted
and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other aspects of social life with significant
moral dimension - while government played a supportive and indirect role by maintaining conditions
in which these activities may be carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive role.109 Government runs even
family planning, sex education, adoption and foster care programs.110 Stated otherwise and with
some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a significant
moral dimension, government was the handmaid of religion, today religion, in its social
responsibilities, as contrasted with personal faith and collective worship, is the handmaid of
government."111 With government regulation of individual conduct having become more pervasive,
inevitably some of those regulations would reach conduct that for some individuals are religious. As
a result, increasingly, there may be inadvertent collisions between purely secular government
actions and religion clause values.112
Parallel to this expansion of government has been the expansion of religious organizations in
population, physical institutions, types of activities undertaken, and sheer variety of denominations,
sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks,
publishing houses and mass media programs. In these activities, religious organizations
complement and compete with commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches have also concerned
themselves with social and political issues as a necessary outgrowth of religious faith as witnessed
in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the growth in population density,
mobility and diversity has significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely
among their own kind or to shelter their children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit;113 and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just due, a rigid, wooden
interpretation of the religion clauses that is blind to societal and political realities must be avoided.114
Religion cases arise from different circumstances. The more obvious ones arise from a government
action which purposely aids or inhibits religion. These cases are easier to resolve as, in general,
these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
of intent to aid or inhibit religion.115 The more difficult religion clause cases involve government action
with a secular purpose and general applicability which incidentally or inadvertently aids or burdens
religious exercise. In Free Exercise Clause cases, these government actions are referred to as those
with "burdensome effect" on religious exercise even if the government action is not religiously
motivated.116 Ideally, the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But when the legislature fails
to do so, religions that are threatened and burdened turn to the courts for protection.117 Most of these
free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law
that has a "burdensome" effect.118
With the change in political and social context and the increasing inadvertent collisions between law
and religious exercise, the definition of religion for purposes of interpreting the religion clauses has
also been modified to suit current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must
define religion for constitutional and other legal purposes.119 It was in the 1890 case of Davis v.
Beason120 that the United States Supreme Court first had occasion to define religion, viz:
The term 'religion' has reference to one's views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of obedience to his
will. It is often confounded with the cultus or form of worship of a particular sect, but is
distinguishable from the latter. The First Amendment to the Constitution, in declaring that
Congress shall make no law respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the jurisdiction of the United States
to entertain such notions respecting his relations to his Maker and the duties they impose as
may be approved by his judgment and conscience, and to exhibit his sentiments in such form
of worship as he may think proper, not injurious to the equal rights of others, and to prohibit
legislation for the support of any religious tenets, or the modes of worship of any sect.121
The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free exercise of religion "embraces
the right to maintain theories of life and of death and of the hereafter which are rank heresy to
followers of the orthodox faiths."123 By the 1960s, American pluralism in religion had flourished to
include non-theistic creeds from Asia such as Buddhism and Taoism.124 In 1961, the Court,
in Torcaso v. Watkins,125 expanded the term "religion" to non-theistic beliefs such as Buddhism,
Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional
problem in United States v. Seeger126 which involved four men who claimed "conscientious objector"
status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any
organized religion opposed to war, but when specifically asked about his belief in a Supreme Being,
Seeger stated that "you could call (it) a belief in a Supreme Being or God. These just do not happen
to be the words that I use." Forest Peter, another one of the four claimed that after considerable
meditation and reflection "on values derived from the Western religious and philosophical tradition,"
he determined that it would be "a violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state." The Court avoided a constitutional
question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion
in the Universal Military Training and Service Act of 1940 which exempt from combat anyone "who,
by reason of religious training and belief, is conscientiously opposed to participation in war in any
form." Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was
merely clarifying the meaning of religious tradition and belief so as to embrace all religions
and to exclude essentially political, sociological, or philosophical views (and) the test of belief
'in relation to a Supreme Being' is whether a given belief that is sincere and meaningful
occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis
supplied)
The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed
of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to include even non-
theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must
meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God
or some parallel belief that occupies a central place in the believer's life. Second, the religion must
involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a
demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.127 Fourth, there must be some associational ties,128 although there is
also a view that religious beliefs held by a single person rather than being part of the teachings of
any kind of group or sect are entitled to the protection of the Free Exercise Clause.129
Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having
hurdled the issue of definition, the court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their
purpose is singular; they are two sides of the same coin.130 In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different circumstances.131 The purpose of
the religion clauses - both in the restriction it imposes on the power of the government to interfere
with the free exercise of religion and the limitation on the power of government to establish, aid, and
support religion - is the protection and promotion of religious liberty.132 The end, the goal, and the
rationale of the religion clauses is this liberty.133 Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are directed is government-
induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the
two clauses and the Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which government historically had
demonstrated a propensity.135 In other words, free exercise is the end, proscribing establishment is a
necessary means to this end to protect the rights of those who might dissent from whatever religion
is established.136 It has even been suggested that the sense of the First Amendment is captured if it
were to read as "Congress shall make no law respecting an establishment of religion or otherwise
prohibiting the free exercise thereof" because the fundamental and single purpose of the two
religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to protect each from the other, in
service of the larger goal of preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the disadvantage of those of
other faiths, or of no faith at all138 because history has shown that religious fervor conjoined with
state power is likely to tolerate far less religious disagreement and disobedience from those who
hold different beliefs than an enlightened secular state.139 In the words of the U.S. Supreme Court,
the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of
civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has
secured religious liberty from the invasion of the civil authority."140
In upholding religious liberty as the end goal in religious clause cases, the line the court draws to
ensure that government does not establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to insure that no
religion be sponsored or favored, none commanded and none inhibited.141 (emphasis
supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,142 even opposing, strains
of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the
landscape of U.S. religion clause cases would be useful in understanding these two strains, the
scope of protection of each clause, and the tests used in religious clause cases. Most of these cases
are cited as authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United
States.143 This landmark case involved Reynolds, a Mormon who proved that it was his religious duty
to have several wives and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in the life to come. Reynolds'
act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and
penalizing bigamy, for which he was convicted. The Court affirmed Reynolds' conviction, using what
in jurisprudence would be called the belief-action test which allows absolute protection to belief but
not to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the Court,
declares "the true distinction between what properly belongs to the Church and what to the
State."144 The bill, making a distinction between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of opinion, and to
restrain the profession or propagation of principles on supposition of their ill tendency, is a
dangerous fallacy which at once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its officers to interfere
when principles break out into overt acts against peace and good order.145 (emphasis
supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to reach
actions which were in violation of social duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot interfere with mere
religious belief and opinions, they may with practices. Suppose one believed that human
sacrifice were a necessary part of religious worship, would it be seriously contended that the
civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her carrying her belief into
practice?
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
circumstances.146
The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from
regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate
religiously motivated conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied by any conduct would
most certainly be motivated only by the legislature's preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public
welfare purposes and have nothing to do with the legislature's religious preferences. Any burden on
religion that results from state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular religious beliefs. These
burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court
found that regulation address action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions
even if considered central to a religion unless the legislature formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years as shown by cases where the
Court upheld other laws which burdened the practice of the Mormon religion by imposing various
penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United
States.149 However, more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual religious convictions and
beliefs151 and proscribes government from questioning a person's beliefs or imposing penalties or
disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief.
Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a
qualification for public office an oath declaring belief in the existence of God. The protection also
allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of
a person's religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious
conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovah's Witnesses which is committed to active proselytizing. The
Court invalidated the state statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences arise. In both
fields the tenets of one may seem the rankest error to his neighbor. To persuade others to
his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who
have been, or are, prominent in church or state, and even to false statement. But the people
of this nation have ordained in the light of history, that, in spite of the probability of excesses
and abuses, these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only
affirmed protection of belief but also freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second cannot be. Conduct remains subject
to regulation for the protection of society. . . In every case, the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.
(emphasis supplied)156
The Court stated, however, that government had the power to regulate the times, places, and
manner of solicitation on the streets and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not
prohibit members of the Jehovah's Witnesses from peaceably and orderly proselytizing on Sundays
merely because other citizens complained. In another case likewise involving the Jehovah's
Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's
denial of a permit to the Jehovah's Witnesses to use the city park for a public meeting. The city
council's refusal was because of the "unsatisfactory" answers of the Jehovah's Witnesses to
questions about Catholicism, military service, and other issues. The denial of the public forum was
considered blatant censorship. While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe
and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International
Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct, usually in the form of
unconventional religious practices. Protection in this realm depends on the character of the action
and the government rationale for regulating the action.160 The Mormons' religious conduct of
polygamy is an example of unconventional religious practice. As discussed in the Reynolds case
above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case
of Davis again involving Mormons, where the Court held, viz: "(c)rime is not the less odious because
sanctioned by what any particular sect may designate as religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of
religiously dictated conduct would be upheld no matter how central the conduct was to the exercise
of religion and no matter how insignificant was the government's non-religious regulatory interest so
long as the government is proscribing action and not belief. Thus, the Court abandoned the
simplistic belief-action distinction and instead recognized the deliberate-inadvertent distinction, i.e.,
the distinction between deliberate state interference of religious exercise for religious reasons which
was plainly unconstitutional and government's inadvertent interference with religion in pursuing some
secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld
a local school board requirement that all public school students participate in a daily flag salute
program, including the Jehovah's Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship of a "graven image." The Court
recognized that the general requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses' practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the "basis of national security." Thus,
although the Court was already aware of the deliberate-inadvertent distinction in government
interference with religion, it continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the interference, no matter how
trivial the state's non-religious objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on religion, so long as government
was acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette164 which
involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection
with the pledges, was a form of utterance and the flag salute program was a compulsion of students
to declare a belief. The Court ruled that "compulsory unification of opinions leads only to the
unanimity of the graveyard" and exempt the students who were members of the Jehovah's
Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was
decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it
turn on one's possession of particular religious views or the sincerity with which they are held. While
religion supplies appellees' motive for enduring the discomforts of making the issue in this case,
many citizens who do not share these religious views hold such a compulsory rite to infringe
constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that,
"freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction
only to prevent grave and immediate danger to interests which the state may lawfully protect."166 The
Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious
liberty of political minorities - a specially protected constitutional value - to the common everyday
economic and public welfare objectives of the majority in the legislature. This time, even inadvertent
interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny
would only grow to a full flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern
free exercise jurisprudence.168 A two-part balancing test was established in Braunfeld v.
Brown169 where the Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain
from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law
placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there
were alternative ways of achieving the state's interest. He employed a two-part balancing test of
validity where the first step was for plaintiff to show that the regulation placed a real burden on his
religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an
overriding secular goal by the means which imposed the least burden on religious practices.170 The
Court found that the state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this interest but to require
Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v.
Verner.171 This test was similar to the two-part balancing test in Braunfeld,172 but this latter test
stressed that the state interest was not merely any colorable state interest, but must be paramount
and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist,
claimed unemployment compensation under the law as her employment was terminated for refusal
to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of benefits could
withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct

prompted by religious principles of a kind within the reach of state legislation. If, therefore,
the decision of the South Carolina Supreme Court is to withstand appellant's constitutional
challenge, it must be either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant's religion may be justified by a 'compelling
state interest in the regulation of a subject within the State's constitutional power to regulate.
. .' NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis
supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely
show a rational relationship of the substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530,
89 L ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest
to override Sherbert's religious liberty. It added that even if the state could show that Sherbert's
exemption would pose serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty. The state, however, did
not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday
work requirement that caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert's benefits would force her to choose between
receiving benefits and following her religion. This choice placed "the same kind of burden upon the
free exercise of religion as would a fine imposed against (her) for her Saturday worship." This
germinal case of Sherbert firmly established the exemption doctrine,175 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be granted
unless some 'compelling state interest' intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as
Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with
religion raise no problem under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-
action test and the deliberate-inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. In Thomas v. Review Board177 and Hobbie v. Unemployment
Appeals Division,178 for example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold unemployment compensation from
an employee who resigned or was discharged due to unwillingness to depart from religious practices
and beliefs that conflicted with job requirements. But not every governmental refusal to allow an
exemption from a regulation which burdens a sincerely held religious belief has been invalidated,
even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the
Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to
exempt Amish employers who requested for exemption from paying social security taxes on wages
on the ground of religious beliefs. The Court held that "(b)ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of
taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption
would significantly impair government's achievement of its objective - "the fiscal vitality of the social
security system;" mandatory participation is indispensable to attain this objective. The Court noted
that if an exemption were made, it would be hard to justify not allowing a similar exemption from
general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or
eliminate his payments so that he will not contribute to the government's war-related activities, for
example.
The strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity,
a compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in favor of the free exercise of
religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court
upheld the religious practice of the Old Order Amish faith over the state's compulsory high school
attendance law. The Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice of a legitimate religious
belief, it must appear either that the State does not deny the free exercise of religious belief
by its requirement, or that there is a state interest of sufficient magnitude to override the
interest claiming protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had specially
and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to religion have been zealously
protected, sometimes even at the expense of other interests of admittedly high social
importance. . .
The essence of all that has been said and written on the subject is that only those interests
of the highest order and those not otherwise served can overbalance legitimate claims to the
free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals, even
when religiously based, are often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to deny that there
are areas of conduct protected by the Free Exercise Clause of the First Amendment and
thus beyond the power of the State to control, even under regulations of general applicability.
. . .This case, therefore, does not become easier because respondents were convicted for
their "actions" in refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection afforded by the Free
Exercise Clause. In Employment Division, Oregon Department of Human Resources v.
Smith,184 the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny
and compelling justification approach and imposed serious limits on the scope of protection of
religious freedom afforded by the First Amendment. In this case, the well-established practice of the
Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came
in conflict with the state's interest in prohibiting the use of illicit drugs. Oregon's controlled
substances statute made the possession of peyote a criminal offense. Two members of the church,
Smith and Black, worked as drug rehabilitation counselors for a private social service agency in
Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug,
at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as "job-related misconduct". They applied for
unemployment compensation, but the Oregon Employment Appeals Board denied their application
as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that
"if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable
and otherwise valid law, the First Amendment has not been offended." In other words, the Free
Exercise Clause would be offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated
Oregon's drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the
majority opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test except
the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally applicable
criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority of
our precedents, is to hold the test inapplicable to such challenges. The government's ability to
enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, "cannot depend on measuring the effects of a governmental action on a
religious objector's spiritual development." . . .To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs except where the State's interest is
"compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," . . . -
contradicts both constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the
compelling governmental interest test was the most controversial part of the decision. Although she
concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized
the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . .
and . . . (as) incompatible with our Nation's fundamental commitment to religious liberty." This portion
of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who
dissented from the Court's decision. Justice O'Connor asserted that "(t)he compelling state interest
test effectuates the First Amendment's command that religious liberty is an independent liberty, that
it occupies a preferred position, and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling government interest 'of the
highest order'." Justice Blackmun registered a separate dissenting opinion, joined by Justices
Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and
"overturning. . . settled law concerning the Religion Clauses of our Constitution." He pointed out that
the Native American Church restricted and supervised the sacramental use of peyote. Thus, the
state had no significant health or safety justification for regulating the sacramental drug use. He also
observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for
that matter, for the sacramental use of peyote. In conclusion, he said that "Oregon's interest in
enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh
respondents' right to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith
virtually eliminated the requirement that the government justify with a compelling state interest the
burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of
free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions
from the tyranny of the religious and political majority. A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny. But regulatory interference with a
minority religion as a result of ignorance or sensitivity of the religious and political majority is no less
an interference with the minority's religious freedom. If the regulation had instead restricted the
majority's religious practice, the majoritarian legislative process would in all probability have modified
or rejected the regulation. Thus, the imposition of the political majority's non-religious objectives at
the expense of the minority's religious interests implements the majority's religious viewpoint at the
expense of the minority's. Second, government impairment of religious liberty would most often be of
the inadvertent kind as in Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause
could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the
Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without serious inadvertent
impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power of the state over
religion but as discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.189 Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free Exercise
Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact
the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all
levels from substantially burdening a person's free exercise of religion, even if such burden resulted
from a generally applicable rule, unless the government could demonstrate a compelling state
interest and the rule constituted the least restrictive means of furthering that interest.191 RFRA, in
effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith.
Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA
unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital
principles necessary to maintain separation of powers and the federal balance." It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional
grounds, a direct congressional challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah193 which was ruled
consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of
Roman Catholicism and West African religions brought to the Carribean by East African slaves. An
ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public or
private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as
a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy,
writing for the majority, carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade
animal slaughter only insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is
absolutely protected, religious speech and proselytizing are highly protected but subject to restraints
applicable to non-religious speech, and unconventional religious practice receives less protection;
nevertheless conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.194
B. Establishment Clause
The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v.
Board of Education.195 Prior cases had made passing reference to the Establishment Clause196 and
raised establishment questions but were decided on other grounds.197 It was in the Everson case
that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall of separation between church
and state" as encapsulating the meaning of the Establishment Clause. The often and loosely used
phrase "separation of church and state" does not appear in the U.S. Constitution. It became part of
U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States198 quoted
Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of the
religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and his God; that
he owes account to none other for his faith or his worship; that the legislative powers of the
Government reach actions only, and not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their Legislature should 'make no
law respecting an establishment of religion or prohibiting the free exercise thereof,' thus
building a wall of separation between Church and State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured."200
The interpretation of the Establishment Clause has in large part been in cases involving education,
notably state aid to private religious schools and prayer in public schools.201 In Everson v. Board of
Education, for example, the issue was whether a New Jersey local school board could reimburse
parents for expenses incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children in public schools
and nonprofit private schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was merely furthering the
state's legitimate interest in getting children "regardless of their religion, safely and expeditiously to
and from accredited schools." The Court, after narrating the history of the First Amendment in
Virginia, interpreted the Establishment Clause, viz:
The 'establishment of religion' clause of the First Amendment means at least this: Neither a
state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another. Neither can force nor influence a
person to go to or remain away from church against his will or force him to profess a belief or
disbelief in any religion. No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or
small, can be levied to support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of separation between Church
and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall must be kept
high and impregnable. We could not approve the slightest breach. New Jersey has not
breached it here.203
By 1971, the Court integrated the different elements of the Court's Establishment Clause
jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v.
Kurtzman204 in determining the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools.
The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary
or principal effect must be one that neither advances nor inhibits religion (Board of Education v.
Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not
foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed
2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied)205 Using this test, the Court held that the
Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering
excessive entanglement between government and religion.
The most controversial of the education cases involving the Establishment Clause are the school
prayer decisions. "Few decisions of the modern Supreme Court have been criticized more intensely
than the school prayer decisions of the early 1960s."206 In the 1962 case of Engel v. Vitale,207 the
Court invalidated a New York Board of Regents policy that established the voluntary recitation of a
brief generic prayer by children in the public schools at the start of each school day. The majority
opinion written by Justice Black stated that "in this country it is no part of the business of government
to compose official prayers for any group of the American people to recite as part of a religious
program carried on by government." In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons that caused many
of the early colonists to leave England and seek religious freedom in America. The Court called to
mind that the first and most immediate purpose of the Establishment Clause rested on the belief that
a union of government and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School District v.
Schempp208 and Murray v. Curlett209 where the Court struck down the practice of Bible reading and
the recitation of the Lord's prayer in the Pennsylvania and Maryland schools. The Court held that to
withstand the strictures of the Establishment Clause, a statute must have a secular legislative
purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:
The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition
of the teachings of history that powerful sects or groups might bring about a fusion of
governmental and religious functions or a concert or dependency of one upon the other to
the end that official support of the State of Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further
reason for neutrality is found in the Free Exercise Clause, which recognizes the value of
religious training, teaching and observance and, more particularly, the right of every person
to freely choose his own course with reference thereto, free of any compulsion from the
state.210
The school prayer decisions drew furious reactions. Religious leaders and conservative members of
Congress and resolutions passed by several state legislatures condemned these decisions.211 On
several occasions, constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the
1985 case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public
school students to observe a moment of silence "for the purpose of meditation or voluntary prayer" at
the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment
Clause. Optional religious instruction within public school premises and instructional time were
declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this case, interested members
of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of
Education to offer classes in religious instruction to public school students in grades four to nine.
Religion classes were attended by pupils whose parents signed printed cards requesting that their
children be permitted to attend. The classes were taught in three separate groups by Protestant
teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes
during regular class hours in the regular classrooms of the school building. The religious teachers
were employed at no expense to the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not choose to take religious
instruction were required to leave their classrooms and go to some other place in the school building
for their secular studies while those who were released from their secular study for religious
instruction were required to attend the religious classes. The Court held that the use of tax-
supported property for religious instruction and the close cooperation between the school authorities
and the religious council in promoting religious education amounted to a prohibited use of tax-
established and tax-supported public school system to aid religious groups spread their faith. The
Court rejected the claim that the Establishment Clause only prohibited government preference of
one religion over another and not an impartial governmental assistance of all religions. In Zorach v.
Clauson,214 however, the Court upheld released time programs allowing students in public schools
to leave campus upon parental permission to attend religious services while other students attended
study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does not
require that in every and all respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the force of the
public school was used to promote that instruction. . . We follow the McCollum case. But we
cannot expand it to cover the present released time program unless separation of Church
and State means that public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill of Rights such
a philosophy of hostility to religion.215
In the area of government displays or affirmations of belief, the Court has given leeway to religious
beliefs and practices which have acquired a secular meaning and have become deeply entrenched
in history. For instance, in McGowan v. Maryland,216 the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions.
Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day
of rest happened to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have special significance
as a rest day in this country. People of all religions and people with no religion regard
Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for
passive and active entertainments, for dining out, and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate Nebraska's policy of
beginning legislative sessions with prayers offered by a Protestant chaplain retained at the
taxpayers' expense. The majority opinion did not rely on the Lemon test and instead drew heavily
from history and the need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be no
doubt that the practice of opening legislative sessions with prayer has become the fabric of
our society. To invoke Divine guidance on a public body entrusted with making the laws is
not, in these circumstances, an "establishment" of religion or a step toward establishment; it
is simply a tolerable acknowledgement of beliefs widely held among the people of this
country. As Justice Douglas observed, "(w)e are a religious people whose institutions
presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis
supplied)
Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it
were to attempt to strike down a practice that occurs in nearly every legislature in the United States,
including the U.S. Congress."220 That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in
Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again
relied on history and the fact that the creche had become a "neutral harbinger of the holiday season"
for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By tradition,
church and charitable institutions have been exempt from local property taxes and their income
exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,222 the
New York City Tax Commission's grant of property tax exemptions to churches as allowed by state
law was challenged by Walz on the theory that this required him to subsidize those churches
indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as such;
rather, it has granted exemptions to all houses of religious worship within a broad class of
property owned by non-profit, quasi-public corporations . . . The State has an affirmative
policy that considers these groups as beneficial and stabilizing influences in community life
and finds this classification useful, desirable, and in the public interest.223
The Court added that the exemption was not establishing religion but "sparing the exercise of
religion from the burden of property taxation levied on private profit institutions"224 and preventing
excessive entanglement between state and religion. At the same time, the Court acknowledged the
long-standing practice of religious tax exemption and the Court's traditional deference to legislative
bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with
pre-Revolutionary colonial times, than for the government to exercise . . . this kind of
benevolent neutrality toward churches and religious exercise generally so long as none was
favored over others and none suffered interference.225 (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions in the religious
clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S.
Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases
may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the
legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the schools for children to
pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
state to require employers to accommodate their employees' work schedules to their sabbath
observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay workers compensation
when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert
v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen
v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v.
Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but
not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious
schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a
museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance
(Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence
nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with
particular government regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main standards used by the
Court in deciding religion clause cases: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict
or tame.227 But the accommodationists have also attracted a number of influential scholars and
jurists.228 The two standards producing two streams of jurisprudence branch out respectively from
the history of the First Amendment in England and the American colonies and climaxing in Virginia
as narrated in this opinion and officially acknowledged by the Court in Everson, and from American
societal life which reveres religion and practices age-old religious traditions. Stated otherwise,
separation - strict or tame - protects the principle of church-state separation with a rigid reading of
the principle while benevolent neutrality protects religious realities, tradition and established practice
with a flexible reading of the principle.229 The latter also appeals to history in support of its
position, viz:
The opposing school of thought argues that the First Congress intended to allow government
support of religion, at least as long as that support did not discriminate in favor of one
particular religion. . . the Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency, and he
sponsored Jefferson's bill for punishing Sabbath breakers; moreover, while president,
Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes
one recent book, 'there is no support in the Congressional records that either the First
Congress, which framed the First Amendment, or its principal author and sponsor, James
Madison, intended that Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public documents goes the other
way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for
accommodation, less than twenty-four hours after Congress adopted the First Amendment's
prohibition on laws respecting an establishment of religion, Congress decided to express its thanks
to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of
Congress opposed the resolution, one on the ground that the move was a "mimicking of European
customs, where they made a mere mockery of thanksgivings", the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further recorded discussion.231 Thus,
accommodationists also go back to the framers to ascertain the meaning of the First Amendment,
but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism
pervaded America in the late 19th century and that America was less specifically Christian during
those years than at any other time before or since,232 accommodationaists claim that American
citizens at the time of the Constitution's origins were a remarkably religious people in particularly
Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are anchored on a different

reading of the "wall of separation." The strict separtionist view holds that Jefferson meant the "wall of
separation" to protect the state from the church. Jefferson was a man of the Enlightenment Era of
the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic
bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine law, and instead adhering
to a secular belief in a universal harmony.235 Thus, according to this Jeffersonian view, the
Establishment Clause being meant to protect the state from the church, the state's hostility towards
religion allows no interaction between the two.236 In fact, when Jefferson became President, he
refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and
the Constitution prohibited the government from intermeddling with religion.237 This approach erects
an absolute barrier to formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs
to alleviate burdens the programs placed on believers.238 Only the complete separation of religion
from politics would eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict "wall of separation" is necessary.239 Strict separation faces
difficulties, however, as it is deeply embedded in history and contemporary practice that enormous
amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts
of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or separationist view is largely
used by the Court, showing the Court's tendency to press relentlessly towards a more secular
society.241 It finds basis in the Everson case where the Court declared that Jefferson's "wall of
separation" encapsulated the meaning of the First Amendment but at the same time held that the
First Amendment "requires the state to be neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power is no more to be
used so as to handicap religions than it is to favor them." (emphasis supplied)242 While the strict
neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of the first
amendment is that the freedom and separation clauses should be read as a single precept
that government cannot utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a benefit or to impose a
burden.244
The Court has repeatedly declared that religious freedom means government neutrality in religious
matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government
from acting except for secular purposes and in ways that have primarily secular effects.245
Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow
any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.246 The
McCollum case prohibiting optional religious instruction within public school premises during regular
class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold
the government action as they were based not on a secular but on a religious purpose. Strict
neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of
a generally applicable law with a secular purpose that merely incidentally burdens religious exercise,
the First Amendment has not been offended. However, if the strict neutrality standard is applied in
interpreting the Establishment Clause, it could de facto void religious expression in the Free
Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict
neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even
active, hostility to the religious" which is prohibited by the Constitution.247 Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free
exercise clause. The Framers, whatever specific applications they may have intended,
clearly envisioned religion as something special; they enacted that vision into law by
guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme
Court has rejected strict neutrality, permitting and sometimes mandating religious
classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma because while the
Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation",
in real life church and state are not and cannot be totally separate.249 This is all the more true in
contemporary times when both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of government and religion at many
points.250
Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent
neutrality which gives room for accommodation is buttressed by a different view of the "wall of
separation" associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the
church; instead, the wall is meant to protect the church from the state,251 i.e., the "garden" of the
church must be walled in for its own protection from the "wilderness" of the world252 with its potential
for corrupting those values so necessary to religious commitment.253 Howe called this the
"theological" or "evangelical" rationale for church-state separation while the wall espoused by
"enlightened" statesmen such as Jefferson and Madison, was a "political" rationale seeking to
protect politics from intrusions by the church.254 But it has been asserted that this contrast between
the Williams and Jeffersonian positions is more accurately described as a difference in kinds or
styles of religious thinking, not as a conflict between "religious" and "secular (political)"; the religious
style was biblical and evangelical in character while the secular style was grounded in natural
religion, more generic and philosophical in its religious orientation.255
The Williams wall is, however, breached for the church is in the state and so the remaining purpose
of the wall is to safeguard religious liberty. Williams' view would therefore allow for interaction
between church and state, but is strict with regard to state action which would threaten the integrity
of religious commitment.256 His conception of separation is not total such that it provides basis for
certain interactions between church and state dictated by apparent necessity or practicality.257 This
"theological" view of separation is found in Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between the garden of
the church and the wilderness of the world, God hath ever broke down the wall itself,
removed the candlestick, and made his garden a wilderness, as this day. And that therefore
if He will eer please to restore His garden and paradise again, it must of necessity be walled
in peculiarly unto Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by the
Court is this: that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly proscribed governmental
acts there is room for play in the joints productive of a benevolent neutrality which will permit
religious exercise to exist without sponsorship and without interference.259 (emphasis
supplied)
The Zorach case expressed the doctrine of accommodation,260 viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways,
in which there shall be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would be aliens to each other
- hostile, suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire protection to
religious groups. Policemen who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so
help me God" in our courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the First Amendment.
A fastidious atheist or agnostic could even object to the supplication with which the Court
opens each session: 'God save the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee

the freedom to worship as one chooses. . . When the state encourages religious instruction
or cooperates with religious authorities by adjusting the schedule of public events, it follows
the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not would be to
find in the Constitution a requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence.261 (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves a function
essential to the survival of society itself, thus there is no human society without one or more ways of
performing the essential function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not, which is why there is no
human society without one or more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in
their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites without
which society would not continue to exist. At first glance, this seems to be obvious - scarcely
more than to say that an automobile could not exist, as a going system, without a carburetor.
. . Most writers list religion among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without
something which modern social scientists would classify as a religion…Religion is as much a human
universal as language."264
Benevolent neutrality thus recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of "In God We Trust" on American
currency, the recognition of America as "one nation under God" in the official pledge of allegiance to
the flag, the Supreme Court's time-honored practice of opening oral argument with the invocation
"God save the United States and this honorable Court," and the practice of Congress and every
state legislature of paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.265 These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over the contrary theological
viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost
housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign
aid and other government activities with strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout history, the evangelical theory
of separation, i.e., Williams' wall, has demanded respect for these de facto establishments.267 But the
separationists have a different explanation. To characterize these as de jure establishments
according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and
concurring opinions explain some of these practices as "'de minimis' instances of government
endorsement or as historic governmental practices that have largely lost their religious significance
or at least have proven not to lead the government into further involvement with religion.268
that take religion specifically into account not to promote the government's favored form of religion,
effect therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied)
Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but
respect for the conflict between the temporal and spiritual authority in which the minority finds
itself.270
Accommodation is distinguished from strict neutrality in that the latter holds that government should
base public policy solely on secular considerations, without regard to the religious consequences of
its actions. The debate between accommodation and strict neutrality is at base a question of means:
"Is the freedom of religion best achieved when the government is conscious of the effects of its
action on the various religious practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of 'religious blindness' - keeping government aloof
from religious practices and issues?" An accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid
interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is
good public policy, and also constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.271
There are strong and compelling reasons, however, to take the accommodationist position rather
than the strict neutrality position. First, the accommodationist interpretation is most consistent with
the language of the First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at "religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding
off two equal and opposite threats to religious freedom - government action that promotes the
(political) majority's favored brand of religion and government action that impedes religious practices
not favored by the majority. The substantive end in view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that government does not act on the
basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make
the religion clauses violate the religion clauses, so to speak, since the religion clauses single out
religion by name for special protection. Second, the accommodationist position best achieves the
purposes of the First Amendment. The principle underlying the First Amendment is that freedom to
carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Although inalienable, it is necessarily limited by the rights of others, including the public
right of peace and good order. Nevertheless it is a substantive right and not merely a privilege
against discriminatory legislation. The accomplishment of the purpose of the First Amendment
requires more than the "religion blindness" of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for
secular entities are sometimes inappropriate for religious entities, thus the government must make
special provisions to preserve a degree of independence for religious entities for them to carry out
their religious missions according to their religious beliefs. Otherwise, religion will become just like
other secular entities subject to pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference and overt
hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of
the majority, thus not infrequently, they come into conflict with the religious scruples of those holding
different world views, even in the absence of a deliberate intent to interfere with religious practice. At
times, this effect is unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the injury to religious
conscience is so great and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such exemptions when the need is
brought to their attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional
interpretation that allows accommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able to protect themselves in
the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way
to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors conflicting with celebration of
communion, regulations requiring hard hats in construction areas can effectively exclude Amish and
Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman
Catholic male priesthood, among others. Exemptions from such laws are easy to craft and
administer and contribute much to promoting religious freedom at little cost to public policy. Without
exemptions, legislature would be frequently forced to choose between violating religious conscience
of a segment of the population or dispensing with legislation it considers beneficial to society as a
whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or
no law.272
Benevolent neutrality gives room for different kinds of accommodation: those which are
constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are
discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless
permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the
term accommodation to describe government actions that acknowledge or express prevailing
religious sentiments of the community such as display of a religious symbol on public property or the
delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent neutrality as a
standard could result to three situations of accommodation: those where accommodation is required,
those where it is permissible, and those where it is prohibited. In the first situation, accommodation is
required to preserve free exercise protections and not unconstitutionally infringe on religious liberty
or create penalties for religious freedom. Contrary to the Smith declaration that free exercise
exemptions are "intentional government advancement", these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The
state must create exceptions to laws of general applicability when these laws threaten religious
convictions or practices in the absence of a compelling state interest.275 By allowing such
exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for
themselves to override socially-prescribed decision; it allows them to obey spiritual rather than
temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be fulfilling a
solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of
rights derived from duties. To deny a person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find
the reason for the denial compelling. "Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears witness to that which transcends the
political order, such denials should be rare and painfully reluctant."277
The Yoder case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by law. The
Sherbert case is another example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert.278 In these cases of "burdensome
effect", the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden
as permissible, the Court requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government goal through the least
restrictive means. If the state's objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, such an exemption must
be given.279 This approach of the Court on "burdensome effect" was only applied since the 1960s.
Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit
of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise
Clause did not pose a hindrance such as in Reynolds.280 In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate religious
interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that "(t)he limits of permissible state accommodation to
religion are by no means co-extensive with the noninterference mandated by the Free Exercise
Clause."281 The Court held that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property taxes. Other examples are the
Zorach case allowing released time in public schools and Marsh allowing payment of legislative
chaplains from public funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise
exemptions are valid.282 An example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school premises.283 In effect, the last
situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or practice
is necessary to the accomplishment of some important (or 'compelling') secular objective and
that it is the least restrictive means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimant's beliefs must be 'sincere', but they
need not necessarily be consistent, coherent, clearly articulated, or congruent with those of
the claimant's religious denomination. 'Only beliefs rooted in religion are protected by the
Free Exercise Clause'; secular beliefs, however sincere and conscientious, do not suffice.284
In other words, a three-step process (also referred to as the "two-step balancing process" supra
when the second and third steps are combined) as in Sherbert is followed in weighing the state's
interest and religious freedom when these collide. Three questions are answered in this process.
First, "(h)as the statute or government action created a burden on the free exercise of religion?" The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant's belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has
considered historical evidence as in Wisconsin where the Amish people had held a long-standing
objection to enrolling their children in ninth and tenth grades in public high schools. In another
case, Dobkin v. District of Columbia,285 the Court denied the claim of a party who refused to
appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might erroneously deny some
claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not
allowing accommodation as a rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular case.286 Aside from the
sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective
basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish people's convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded
that the prohibition against Saturday work was a "cardinal principle."287 Professor Lupu puts to task
the person claiming exemption, viz:
On the claimant's side, the meaning and significance of the relevant religious practice must
be demonstrated. Religious command should outweigh custom, individual conscience should
count for more than personal convenience, and theological principle should be of greater
significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individual's religious tradition - reinforces
sincerity. Most importantly, the law of free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the intensity and scope
of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand,
will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing
the interest of the state against religious liberty to determine which is more compelling under the
particular set of facts. The greater the state's interests, the more central the religious belief would
have to be to overcome it. In assessing the state interest, the court will have to determine the
importance of the secular interest and the extent to which that interest will be impaired by an
exemption for the religious practice. Should the court find the interest truly compelling, there will be
no requirement that the state diminish the effectiveness of its regulation by granting the
exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?"291 The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell,
for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a
forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility
existed. As a whole, in carrying out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular
government and religious freedom create tensions that make constitutional law on the subject of
religious liberty unsettled, mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago.
There was a union of church and state and Catholicism was the state religion under the Spanish
Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil
powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship.295 Although
the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the
established church in our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter
six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the
state religion.296 The coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment of "separation of church
and state" was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on
December 10, 1898, the American guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that "the inhabitants of the territories over which Spain relinquishes
or cedes her sovereignty shall be secured in the free exercise of religion."297 Even the Filipinos
themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of
the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that
"the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner
as the separation of the Church and State." But the Malolos Constitution and government was short-
lived as the Americans took over the reigns of government.298
With the Philippines under the American regime, President McKinley issued Instructions to the
Second Philippine Commission, the body created to take over the civil government in the Philippines
in 1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference shall forever be allowed ... that no form of
religion and no minister of religion shall be forced upon the community or upon any citizen of
the Islands, that, on the other hand, no minister of religion shall be interfered with or
molested in following his calling.299
This provision was based on the First Amendment of the United States Constitution. Likewise, the
Instructions declared that "(t)he separation between State and Church shall be real, entire and
absolute."300
Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar
to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof,
and that free exercise and enjoyment of religious worship, without discrimination or preference, shall
forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete
separation of church and state, and the abolition of all special privileges and all restrictions theretofor
conferred or imposed upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using
public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference, shall forever be allowed; and no religious test
shall be required for the exercise of civil or political rights. No public money or property shall
ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or for
the use, benefit or support of any priest, preacher, minister, or other religious teachers or
dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934
which guaranteed independence to the Philippines and authorized the drafting of a Philippine
constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution
preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious organization shall be
molested in person or property on account of religious belief or mode of worship."303
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings,
Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that "(i)t was
the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country.
President McKinley's Instructions to the Second Philippine Commission reasserted this right which
later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with
the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7,
viz:
exercise thereof, and the free exercise and enjoyment of religious profession and worship,
This provision, borrowed from the Jones Law, was readily approved by the Convention.305 In
his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that
modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever
possible because "the principles must remain couched in a language expressive of their
historical background, nature, extent and limitations as construed and interpreted by the
great statesmen and jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution contained an almost identical
provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:
exercise thereof. The free exercise and enjoyment of religious profession and worship,
This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation
of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were
reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.307 Likewise, the
provision on separation of church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the
historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution
when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and
limitations of these clauses. However, a close scrutiny of these cases would also reveal that while
U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part,
benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the
definition of "religion". "Religion" is derived from the Middle English religioun, from Old French
religion, from Latin religio, vaguely referring to a "bond between man and the gods."308 This pre-
Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of
the Bible.309 While the U.S. Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a non-theistic belief or act is covered by
the religion clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic.
In 1937, the Philippine case of Aglipay v. Ruiz310 involving the Establishment Clause, defined
"religion" as a "profession of faith to an active power that binds and elevates man to his Creator."
Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of
Manila,311 a case involving the Free Exercise clause. The latter also cited the American case of
Davis in defining religion, viz: "(i)t has reference to one's views of his relations to His Creator and to
the obligations they impose of reverence to His being and character and obedience to His Will." The
Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion. The Free Exercise
Clause principally guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits
and not on the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case
of Gerona v. Secretary of Education313 is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by one's imagination and
thought. 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.314
The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American
Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit,
religious missionary corporation which sold bibles and gospel portions of the bible in the course of its
ministry. The defendant City of Manila required plaintiff to secure a mayor's permit and a municipal
license as ordinarily required of those engaged in the business of general merchandise under the
city's ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free
exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such
right can only be justified like other restraints of freedom of expression on the grounds that
there is a clear and present danger of any substantive evil which the State has the right to
prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the
religious freedom area, and in Philippine jurisprudence, for that matter.315 The case did not clearly
show, however, whether the Court proceeded to apply the test to the facts and issues of the case,
i.e., it did not identify the secular value the government regulation sought to protect, whether the
religious speech posed a clear and present danger to this or other secular value protected by
government, or whether there was danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present danger, and quite another not
to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff
as it was not engaged in the business or occupation of selling said "merchandise" for profit. To add,
the Court, citing Murdock v. Pennsylvania,316 ruled that applying the ordinance requiring it to
secure a license and pay a license fee or tax would impair its free exercise of religious profession
and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in American Bible Society, the
"clear and present danger" rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious
books, the Court distinguished the American Bible Society case from the facts and issues in
Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible
Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a
prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for
the exercise of a privilege like a license tax which American Bible Society ruled was violative of
religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the
cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart
Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of
Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of
religious materials by a religious organization." In the Court's resolution of the motion for
reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom
caused by the tax was just similar to any other economic imposition that might make the right to
disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of
Education,319 this time involving conduct expressive of religious belief colliding with a rule prescribed
in accordance with law. In this case, petitioners were members of the Jehovah's Witnesses. They
challenged a Department Order issued by the Secretary of Education implementing Republic Act No.
1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order,
petitioner's children refused to salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious belief. The Court
stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of society and
with the law, then the former must yield to the latter. The Government steps in and either
restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)320
The Court then proceeded to determine if the acts involved constituted a religious ceremony in
conflict with the beliefs of the petitioners with the following justification:
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 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.321
It was held that the flag was not an image, the flag salute was not a religious ceremony, and there
was nothing objectionable about the singing of the national anthem as it speaks only of love of
country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the
questioned Order and the expulsion of petitioner's children, stressing that:
Men may differ and do differ on religious 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 vitally interested,
for to them, they mean national existence and survival as a nation or national extinction.322
In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette case, viz:
The constitutional protection of religious freedom x x x 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.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption
from or non-compliance with reasonable and non-discriminatory laws, rules and regulations
promulgated by competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the
Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld
if it clashes with the established institutions of society and with the law such that when a law of
general applicability (in this case the Department Order) incidentally burdens the exercise of one's
religion, one's right to religious freedom cannot justify exemption from compliance with the law. The
Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326]
In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which
prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope
Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of
a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the union after Republic Act No.
3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified
Victoriano that unless he could make a satisfactory arrangement with the union, the company would
be constrained to dismiss him from the service. Victoriano sought to enjoin the company and the
union from dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional for
impairing the obligation of contracts and for granting an exemption offensive of the Establishment
Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and liberty
(Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where 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.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional provision on
establishment and free exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any religious
tenets or the modes of worship of any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good. (footnote omitted). Any
legislation whose effect or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83
S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law
which has for its purpose and effect to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563,
81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not precluded from pursuing valid
objectives secular in character even if the incidental result would be favorable to a religion or sect." It
also cited Board of Education v. Allen,330 which held that in order to withstand the strictures of
constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the
Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be refused
work, or be dismissed from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union security agreements. . .
. The primary effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor organization, is the
protection of said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious beliefs, and . . .
eliminating to a certain extent economic insecurity due to unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who are members of religious
sects that prohibit their members from joining labor unions, the benefit upon the religious sects is
merely incidental and indirect."332 In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union security agreements which
Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of
exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples
of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes.
The Court then abruptly added that "(i)n the instant case, We see no compelling state interest to
withhold exemption."333
A close look at Victoriano would show that the Court mentioned several tests in determining when
religious freedom may be validly limited. First, the Court mentioned the test of "immediate and grave
danger to the security and welfare of the community" and "infringement of religious freedom only to
the smallest extent necessary" to justify limitation of religious freedom. Second, religious exercise
may be indirectly burdened by a general law which has for its purpose and effect the advancement
of the state's secular goals, provided that there is no other means by which the state can accomplish
this purpose without imposing such burden. Third, the Court referred to the "compelling state
interest" test which grants exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of
highlighting the importance of the protection of religious freedom as the secular purpose of Republic
Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden
on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court
to the facts and issues of the case. The third, the "compelling state interest" test was employed by
the Court to determine whether the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to
strike it down. However, after careful consideration of the Sherbert case from which Victoriano
borrowed this test, the inevitable conclusion is that the "compelling state interest" test was not
appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert
invoked religious freedom in seeking exemption from the provisions of the South Carolina
Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It
was the appellees, members of the South Carolina Employment Commission, a government agency,
who propounded the state interest to justify overriding Sherbert's claim of religious freedom. The
U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state
interest was not sufficiently compelling to prevail over Sherbert's free exercise claim. This situation
did not obtain in the Victoriano case where it was the government itself, through Congress, which
provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of religion. Thus, the
government could not argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption from the questioned law
to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although
Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the
Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious
freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v.
Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de
Filipinas,334 Anucension v. National Labor Union, et al.,335 and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners
were walking to St. Jude Church within the Malacanang security area to pray for "an end to violence"
when they were barred by the police. Invoking their constitutional freedom of religious worship and
locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray
inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized
their freedom of religion but noted their absence of good faith and concluded that they were using
their religious liberty to express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to
act. The first is absolute, but in the nature of things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice
of their religion, but only in the manner by which they had attempted to translate the same to
action. This curtailment is in accord with the pronouncement of this Court in Gerona v.
Secretary of Education (106 Phil. 2), thus:
. . . 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. (italics supplied)
The majority found that the restriction imposed upon petitioners was "necessary to maintain the
smooth functioning of the executive branch of the government, which petitioners' mass action would
certainly disrupt"338 and denied the petition. Thus, without considering the tests mentioned in
Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it
clashes with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be
cited as a test in religious freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the landmark
case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the
issues.
1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of Rights.
(footnote omitted) Freedom of worship, alongside with freedom of expression and 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 felicitously 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.' (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint although there
may be subsequent punishment of any illegal acts committed during the exercise of such
basic rights. The sole justification for a prior restraint or limitation on the exercise of these
basic rights is the existence of a grave and present 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, that the State has a right (and duty) to prevent (Idem, at pp. 560-
561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was
taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At
issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases
Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of
the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble and petition the government
for redress of grievances.340
In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before
the Court in Ebralinag v. The Division Superintendent of Schools.341 A unanimous Court
overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several
Jehovah's Witnesses who were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving
the same religious freedom issue as in Gerona, the Court this time transported the "grave and
imminent danger" test laid down in Justice Teehankee's dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German
v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present 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, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of the petitioners from the schools is not
justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which
admittedly comprises a 'small portion of the school population' will shake up our part of the
globe and suddenly produce a nation 'untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for national heroes' (Gerona
v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of government, and learn not only
the arts, sciences, Philippine history and culture but also receive training for a vocation or
profession and be taught the virtues of 'patriotism, respect for human rights, appreciation of
national heroes, the rights and duties of citizenship, and moral and spiritual values' (Sec.
3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court has feared in
Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love of country or
respect for duly constituted authorities.343
Barnette also found its way to the opinion, viz:

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x-
assuming that such unity and loyalty can be attained through coercion- is not a goal that is
constitutionally obtainable at the expense of religious liberty. A desirable end cannot be
promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano case and its use of the
"compelling state interest" test in according exemption to the Jehovah's Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching of their
church not to join any group:
'x x x It is certain that not every conscience can be accommodated by all the laws of
the land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some 'compelling state interest' intervenes.' (Sherbert vs.
Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)'
We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard
to the observance of the flag ceremony out of respect for their religious beliefs, however
'bizarre' those beliefs may seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which
involved prior restraint of religious worship with overtones of the right to free speech and assembly,
was transported to Ebralinag which did not involve prior restraint of religious worship, speech or
assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved
the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners
to participate in the flag ceremony "is alien to the conscience of the present generation of Filipinos
who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship;" the Court then stated in a footnote that the "flag salute,
singing the national anthem and reciting the patriotic pledge are all forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor
General's consolidated comment, one of the grounds cited to defend the expulsion orders issued by
the public respondents was that "(t)he State's compelling interests being pursued by the DEC's
lawful regulations in question do not warrant exemption of the school children of the Jehovah's
Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards the end of the decision and did
not even mention what the Solicitor General argued as the compelling state interest, much less did
the Court explain why the interest was not sufficiently compelling to override petitioners' religious
freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of
Appeals, et al.348 Although there was a dissent with respect to the applicability of the "clear and
present danger" test in this case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni
Cristo," regularly aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR
tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground that they "offend and constitute an
attack against other religions which is expressly prohibited by law." Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the
Board's power to review the Iglesia television show, the Court was emphatic about the preferred
status of religious freedom. Quoting Justice Cruz' commentary on the constitution, the Court held
that freedom to believe is absolute but freedom to act on one's belief, where it affects the public, is
subject to the authority of the state. The commentary quoted Justice Frankfurter's dissent in Barnette
which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma."349 Nevertheless, the Court was quick to add the criteria by which the state can regulate the
exercise of religious freedom, that is, when the exercise 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."350
In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior
restraints on speech, including religious speech and the x-rating was a suppression of petitioner's
freedom of speech as much as it was an interference with its right to free exercise of religion. Citing
Cantwell, the Court recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting any religion from this
kind of attack.
The Court then called to mind the "clear and present danger" test first laid down in the American
Bible Society case and the test of "immediate and grave danger" with "infringement only to the
smallest extent necessary to avoid danger" in Victoriano and pointed out that the reviewing board
failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz:
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.
Replying to the challenge on the applicability of the "clear and present danger" test to the case, the
Court acknowledged the permutations that the test has undergone, but stressed that the test is still
applied to four types of speech: "speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of information that endangers a fair
trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and
present danger test to the case at bar which concerns speech that attacks other religions
and could readily provoke hostile audience reaction. It cannot be doubted that religious truths
disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot
be invoked to seek exemption from compliance with a law that burdens one's religious exercise. It
also reiterated the "clear and present danger" test in American Bible Society and the "grave and
imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the
test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to
religious freedom, but carving out an exception or upholding an exception to accommodate religious
exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the
Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value,
it refers to the inviolability of the human conscience which, as discussed above, is also protected by
the free exercise clause. From the religious perspective, religion requires voluntarism because
compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.354 As a social
value, it means that the "growth of a religious sect as a social force must come from the voluntary
support of its members because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without benefit of official patronage.
Such voluntarism cannot be achieved unless the political process is insulated from religion and
unless religion is insulated from politics."355 Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith dissension.356
The neutrality principle was applied in the first significant non-establishment case under the 1935
Constitution. In the 1937 case of Aglipay v. Ruiz,357 the Philippine Independent Church challenged
the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic
Congress of the Catholic Church on the ground that the constitutional prohibition against the use of
public money for religious purposes has been violated. It appears that the Director of Posts issued
the questioned stamps under the provisions of Act No. 4052358 which appropriated a sum for the cost
of plates and printing of postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the Government." The printing and
issuance of the postage stamps in question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the
role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale
of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of separation of church
and state. Without the necessity of adverting to the historical background of this principle in
our country, it is sufficient to say that our history, not to speak of the history of mankind, has
taught us that the union of church and state is prejudicial to both, for occasions might arise
when the state will use the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy
both religious and civil freedom. All the officers of the Government, from the highest to the
lowest, in taking their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence

for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their ideals, conserve and develop the patrimony
of the nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy," they thereby
manifested their intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is recognized here
as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects
and denominations. . .359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the Government.
We are of the opinion that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had in view is
one which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or
government action with a legitimate secular purpose does not offend the Establishment Clause even
if it incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although the Court found that the
separation of church and state was not at issue as the controversy was over who should have
custody of a saint's image, it nevertheless made pronouncements on the separation of church and
state along the same line as the Aglipay ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the
barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an "ingrained tradition in rural communities" that "relieves
the monotony and drudgery of the lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron saint such as the acquisition and
display of his image bought with funds obtained through solicitation from the barrio residents. The
Court pointed out that the image of the patron saint was "purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose
of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio
residents." Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public funds and which
has some religious tint is violative of the constitutional provisions regarding separation of
church and state, freedom of worship and banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a novel issue involving the
religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying
ecclesiastics from appointment or election as municipal officer was challenged. After protracted
deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of
the number necessary to declare a law unconstitutional, approached the problem from a free
exercise perspective and considered the law a religious test offensive of the constitution. They were
Justices Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero.
Then Associate Justice Fernando, the ponente, stated, viz: "The challenged Administrative Code
provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office,
is, on its face, inconsistent with the religious freedom guaranteed by the Constitution."
Citing Torcaso v. Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was
there involved was the validity of a provision in the Maryland Constitution prescribing that 'no
religious test ought ever to be required as a disqualification for any office or profit or trust in
this State, other than a declaration of belief in the existence of God ***.' Such a constitutional
requirement was assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the Maryland Court of
Appeals but prevailed in the United States Supreme Court, which reversed the state court
decision. It could not have been otherwise. As emphatically declared by Justice Black: 'this
Maryland religious test for public office unconstitutionally invades the appellant's freedom of
belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices
to disqualify for a public office. There is thus an incompatibility between the Administrative
Code provision relied upon by petitioner and an express constitutional mandate.364
On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices
Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment
perspective and upheld the law as a safeguard against the constant threat of union of church and
state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head
the executive department of a municipality is to permit the erosion of the principle of separation of
Church and State and thus open the floodgates for the violation of the cherished liberty of religion
which the constitutional provision seeks to enforce and protect." Consequently, the Court upheld the
validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible
for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with intramural religious
disputes. Fonacier v. Court of Appeals365 is the leading case. The issue therein was the right of
control over certain properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the church. The Court cited
American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to
administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . .
In some instances, not only have the civil courts the right to inquire into the jurisdiction of the
religious tribunals and the regularity of their procedure, but they have subjected their
decisions to the test of fairness or to the test furnished by the constitution and the law of the
church. . .367
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes
was the duly elected head of the Church, based on their internal laws. To finally dispose of the
property issue, the Court, citing Watson v. Jones,368 declared that the rule in property controversies
within religious congregations strictly independent of any other superior ecclesiastical association
(such as the Philippine Independent Church) is that the rules for resolving such controversies should
be those of any voluntary association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that
should be followed. Applying these rules, Fonacier lost the case. While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of
faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church and having reference to the power of
excluding from the church those allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free
Exercise Clause and the Establishment Clause in their application. There is a natural antagonism
between a command not to establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice between competing values in
religion cases.370
One set of facts, for instance, can be differently viewed from the Establishment Clause perspective
and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the
majority gave more weight to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was violative of the Free
Exercise Clause. On the other hand, the prevailing five justices gave importance to the
Establishment Clause in stating that the principle of separation of church and state justified the
prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and
consequently exemptions from a law of general applicability are afforded by the Court to the person
claiming religious freedom; the question arises whether the exemption does not amount to support of
the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause
case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day
Adventist religion in South Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does not
represent that involvement of religious with secular institutions which it is the object of the
Establishment Clause to forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides exemption in order to uphold free
exercise as in the Walz case where the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case of establishing religion
but merely upholding the Free Exercise Clause by "sparing the exercise of religion from the burden
of property taxation levied on private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses, both of
which are cast in absolute terms, and either of which, if expanded to a logical extreme, would
tend to clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by
law to religious sects who prohibit their members from joining unions did not offend the
Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the
spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by union security agreements.373 (emphasis
supplied)
Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court
nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is
a question for determination in the actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against
each other. The courts must review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In
the United States, it has been proposed that in balancing, the free exercise claim must be given an
edge not only because of abundant historical evidence in the colonial and early national period of the
United States that the free exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizen's free exercise of religion seems far less dangerous to the republic than
pure establishment cases. Each time the courts side with the Establishment Clause in cases
involving tension between the two religion clauses, the courts convey a message of hostility to the
religion that in that case cannot be freely exercised.374 American professor of constitutional law,
Laurence Tribe, similarly suggests that the free exercise principle "should be dominant in any conflict
with the anti-establishment principle." This dominance would be the result of commitment to religious
tolerance instead of "thwarting at all costs even the faintest appearance of establishment."375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does
not suffice. Modern society is characterized by the expanding regulatory arm of government that
reaches a variety of areas of human conduct and an expanding concept of religion. To adequately
meet the demands of this modern society, the societal values the religion clauses are intended to
protect must be considered in their interpretation and resolution of the tension. This, in fact, has
been the approach followed by the Philippine Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American
Religion Clause History, Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First
Amendment were contained in every organic Act of the Philippines under the American regime.
When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935
Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment
as contained in the Jones Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in the United States as the
U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The
Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding
reach of government regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S. exponentially increased. With
this increase came an expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times creating contradictions so that
two main streams of jurisprudence had become identifiable. The first stream employs separation
while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this
change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the
1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution.
Philippine jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the two streams
of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence
also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams;
thus, when a religion clause case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might
conclude that as the history of the First Amendment as narrated by the Court in Everson supports
the separationist approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses' history. As a result, in a case where the party claims religious liberty in
the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were never warranted by
the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in
a manner that will give to all of them full force and effect.377 From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is
the goal of construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the
1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands,
buildings, and improvements used exclusively for religious, charitable, or educational
purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a
similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing
power of the Philippine government during the Commonwealth period.379 The original draft of the
Constitution placed this provision in an ordinance to be appended to the Constitution because this
was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the Commonwealth period, the
provision was introduced in the body of the Constitution on the rationale that "if churches, convents
[rectories or parsonages] and their accessories are always necessary for facilitating the exercise of
such [religious] freedom, it would also be natural that their existence be also guaranteed by
exempting them from taxation."380 The amendment was readily approved with 83 affirmative votes
against 15 negative votes.381
The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the
U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment
Clause scrutiny by stating that church property was not singled out but was exempt along with
property owned by non-profit, quasi-public corporations because the state upheld the secular policy
"that considers these groups as beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest." The Court also stated that the exemption
was meant to relieve the burden on free exercise imposed by property taxation. At the same time,
however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations,
was an acknowledgment of the necessity of the exempt institutions to the exercise of religious
liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution or system of religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage,
or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law
which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used, directly or

indirectly, for the use, benefit, or support of any sect, church denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was proposed to strike down everything
after "church denomination."383 The proposal intended to imitate the silence of the U.S. Constitution
on the subject of support for priests and ministers. It was also an imitation of the silence of the
Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones
Law, when chaplains of the revolutionary army received pay from public funds with no doubt about
its legality. It was pointed out, however, that even with the prohibition under the Jones Law,
appropriations were made to chaplains of the national penitentiary and the Auditor General upheld
its validity on the basis of a similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the Jones Law.384 To settle the
question on the constitutionality of payment of salaries of religious officers in certain government
institutions and to avoid the feared situation where the enumerated government institutions could not
employ religious officials with compensation, the exception in the 1935 provision was introduced and
approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in
the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S.
Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly
approved the state of Texas' payment of prison chaplains' salaries as reasonably necessary to
permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the
long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains
retained at taxpayers' expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution
in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the provision at the same time
gives constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine
Establishment Clause, the 1935 Constitution provides for optional religious instruction in public
schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as now authorized
by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established in the town
where a public school is situated, either in person or by a designated teacher of religion, to
teach religion for one-half hour three times a week, in the school building, to those public-
school pupils whose parents or guardians desire it and express their desire therefor in writing
filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three positions on the issue of
religious instruction in public schools. The first held that the teaching of religion in public schools
should be prohibited as this was a violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes. The second favored the proposed
optional religious instruction as authorized by the Administrative Code and recognized that the actual
practice of allowing religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the schools.386 The third wanted
religion to be included as a course in the curriculum of the public schools but would only be taken by
pupils at the option of their parents or guardians. After several rounds of debate, the second camp
prevailed, thus raising to constitutional stature the optional teaching of religion in public schools,
despite the opposition to the provision on the ground of separation of church and state.387 As in the
provisions on church property tax exemption and compensation of religious officers in government
institutions, the U.S. Constitution does not provide for optional religious instruction in public schools.
In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school premises. The
constitutional provision on optional religious instruction shows that Philippine jurisdiction rejects the
strict neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing)
the aid of Divine Providence (,) in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the
mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to
be accomplished by the provisions thereof."388 There was no debate on the inclusion of a "Divine
Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored
the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations."389 The 1935
Constitution's religion clauses, understood alongside the other provisions on religion in the
Constitution, indubitably shows not hostility, but benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section
22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the
modification that the property should not only be used directly, but also actually and exclusively for
religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the
1973 Constitution also contained a similar provision on salaries of religious officials employed in the
enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the
modification that optional religious instruction shall be conducted "as may be provided by law" and
not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however,
made explicit in the constitution that the religious instruction in public elementary and high schools
shall be done "(a)t the option expressed in writing by the parents or guardians, and without cost to
them and the government." With the adoption of these provisions in the 1973 Constitution, the
benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15
of the General Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he
separation of church and state shall be inviolable." The 1973 Constitution retained the portion of the
preamble "imploring the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on
Church and State of the 1971 Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the Everson case and reiterated in
Schempp - i.e., neutrality not only as between one religion and another but even as between religion
and non-religion - is embodied in the Philippine Constitution. The sub-committee's answer was that it
did not seem so. Citing the Aglipay case where Justice Laurel recognized the "elevating influence of
religion in human society" and the Filipinos' imploring of Divine Providence in the 1935 Constitution,
the sub-committee asserted that the state may not prefer or aid one religion over another, but may
aid all religions equally or the cause of religion in general.391 Among the position papers submitted to
the Committee on Church on State was a background paper for reconsideration of the religion
provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is
not hostile to religion and in fact recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but
benevolent neutrality. While the Committee introduced the provision on separation of church and
state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this
principle was implied in the 1935 Constitution even in the absence of a similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church
property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution.
The same is true with respect to the prohibition on the use of public money and property for religious
purposes and the salaries of religious officers serving in the enumerated government institutions,
now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the
possibility of allowing the government to spend public money for purposes which might have
religious connections but which would benefit the public generally. Citing the Aglipay case,
Commissioner Rodrigo explained that if a public expenditure would benefit the government directly,
such expense would be constitutional even if it results to an incidental benefit to religion. With that
explanation, Commissioner Bacani no longer pursued his proposal.394
The provision on optional religious instruction was also adopted in the 1987 Constitution in Article
XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall
be conducted "within the regular class hours" and "without additional cost to the government". There
were protracted debates on what additional cost meant, i.e., cost over and above what is needed for
normal operations such as wear and tear, electricity, janitorial services,395 and when during the day
instruction would be conducted.396 In deliberating on the phrase "within the regular class hours,"
Commissioner Aquino expressed her reservations to this proposal as this would violate the time-
honored principle of separation of church and state. She cited the McCullom case where religious
instruction during regular school hours was stricken down as unconstitutional and also cited what
she considered the most liberal interpretation of separation of church and state in Surach v. Clauson
where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas
replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the rule on non-
establishment of religion, because if it were not necessary to make this exception for
purposes of allowing religious instruction, then we could just drop the amendment. But, as a
matter of fact, this is necessary because we are trying to introduce something here which is
contrary to American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
he provision on the separation of church and state was retained but placed under the Principles in
the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording
of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church
and State is inviolable,' is almost a useless statement; but at the same time it is a harmless
statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the statement of separation
of church and state but on the non-establishment clause in the Bill of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God."
There was considerable debate on whether to use "Almighty God" which Commissioner Bacani said
was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty
God" prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is
not hostile nor indifferent to religion;400 its wall of separation is not a wall of hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary
of religious officers in government institutions, optional religious instruction and the preamble all
reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a
high and impregnable wall of separation between the church and state.402 The strict neutrality
approach which examines only whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the
above constitutional provisions on religion, the Filipinos manifested their adherence to the
benevolent neutrality approach in interpreting the religion clauses, an approach that looks further
than the secular purposes of government action and examines the effect of these actions on
religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and
the elevating influence of religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality
gives room for accommodation of these religious exercises as required by the Free Exercise Clause.
It allows these breaches in the wall of separation to uphold religious liberty, which after all is the
integral purpose of the religion clauses. The case at bar involves this first type of accommodation
where an exemption is sought from a law of general applicability that inadvertently burdens religious
exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent
neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with hostility or act indifferently towards
religious beliefs and practices and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view for this
precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general applicability, the Court can carve out
an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation
that can eliminate the difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we
adopt the benevolent neutrality approach not only because of its merits as discussed above, but
more importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in interpreting religion
clause cases. The ideal towards which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority, however large- but for each of us" to
the greatest extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in
Philippine jurisprudence, albeit not expressly called "benevolent neutrality" or "accommodation". In
Aglipay, the Court not only stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as well as the
provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day
and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but also acknowledged
that government participation in long-standing traditions which have acquired a social character -
"the barrio fiesta is a socio-religious affair" - does not offend the Establishment Clause. In Victoriano,
the Court upheld the exemption from closed shop provisions of members of religious sects who
prohibited their members from joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the burden on free exercise of
religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting the flag as
required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause
without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional
law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own, breathing the air of
benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is
not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the
religion clauses are a unique American experiment which understandably came about as a result of
America's English background and colonization, the life that these clauses have taken in this
jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history
and tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence unmistakably show that
benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be
stressed that the interest of the state should also be afforded utmost protection. To do this, a test
must be applied to draw the line between permissible and forbidden religious exercise. It is quite
paradoxical that in order for the members of a society to exercise their freedoms, including their
religious liberty, the law must set a limit when their exercise offends the higher interest of the state.
To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment
anarchy, eventually destroying the very state its members established to protect their freedoms. The
very purpose of the social contract by which people establish the state is for the state to protect their
liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free
exercise - to the state. It was certainly not the intention of the authors of the constitution that free
exercise could be used to countenance actions that would undo the constitutional order that
guarantees free exercise.405
The all important question then is the test that should be used in ascertaining the limits of the
exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test continued
to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test
of permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case
of American Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson.406 This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are
destroyed.408 In determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide.409 The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged in illicit relations are
guilty of "disgraceful and immoral conduct" for which he/she may be held administratively liable.410 In
these cases, there was not one dissent to the majority's ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not immoral, but instead
sought to prove that they did not commit the alleged act or have abated from committing the act. The
facts of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are
similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not
registered any objection to the illicit relation, there is no proof of scandal or offense to the moral
sensibilities of the community in which the respondent and the partner live and work, and the
government employee is capacitated to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees administratively liable for
"disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the
penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an
illicit relation constitutes disgraceful and immoral conduct for which a government employee is held
liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted
towards leniency from the time these precedent cases were decided. The Court finds that there is no
such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship
constitutes "disgraceful and immoral conduct" punishable under the Civil Service Law. Respondent
having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases,
could be held administratively liable. However, there is a distinguishing factor that sets the case at
bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since
her religion, the Jehovah's Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the church's religious beliefs and practices. This distinguishing
factor compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion
of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the
standards of morality than on the religion clauses in deciding the instant case. A discussion on
morality is in order.
At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of
morality beyond Socrates' simple formulation is bound to offend one or another of the many rival
theories regarding what it means to live morally.413 The answer to the question of how we ought to
live necessarily considers that man does not live in isolation, but in society. Devlin posits that a
society is held together by a community of ideas, made up not only of political ideas but also of ideas
about the manner its members should behave and govern their lives. The latter are their morals;
they constitute the public morality. Each member of society has ideas about what is good and what
is evil. If people try to create a society wherein there is no fundamental agreement about good and
evil, they will fail; if having established the society on common agreement, the agreement collapses,
the society will disintegrate. Society is kept together by the invisible bonds of common thought so
that if the bonds are too loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind, which needs society, must
pay its price.414 This design is parallel with the social contract in the realm of politics: people give up
a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional
order, people make a fundamental agreement about the powers of government and their liberties
and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution destroys the old order and
creates a new one.415 Similarly, in the realm of morality, the breakdown of the fundamental
agreement about the manner a society's members should behave and govern their lives would
disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it
does to preserve its government and other essential institutions.416 From these propositions of
Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in
the midst of this diversity, there should nevertheless be a "fundamental agreement about good and
evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose
diversity hence the need to come to an agreement; his position also allows for change of morality
from time to time which may be brought about by this diversity. In the same vein, a pluralistic society
lays down fundamental rights and principles in their constitution in establishing and maintaining their
society, and these fundamental values and principles are translated into legislation that governs the
order of society, laws that may be amended from time to time. Hart's argument propounded in Mr.
Justice Vitug's separate opinion that, "Devlin's view of people living in a single society as having
common moral foundation (is) overly simplistic" because "societies have always been diverse" fails
to recognize the necessity of Devlin's proposition in a democracy. Without fundamental agreement
on political and moral ideas, society will fall into anarchy; the agreement is necessary to the
existence and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance.417 Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups.418 Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies -- including protection of religious
freedom "not only for a minority, however small- not only for a majority, however large- but for each
of us" -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.419 In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided
the compelling interests of the state are not eroded for the preservation of the state is necessary to
the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic
society such as the United States and the Philippines to accommodate those minority religions which
are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial
recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the
witness and deposit of our moral life."420 "In a liberal democracy, the law reflects social morality over
a period of time."421 Occasionally though, a disproportionate political influence might cause a law to
be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated
traditional moral views.422 Law has also been defined as "something men create in their best
moments to protect themselves in their worst moments."423 Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to modification and reversal to
better reflect the public morals of a society at a given time. After all, "the life of the law...has been
experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law
deals with the minimum standards of human conduct while morality is concerned with the maximum.
A person who regulates his conduct with the sole object of avoiding punishment under the law does
not meet the higher moral standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public
morality for a society"425 in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public
morality. We held that under the utilitarian theory, the "protective theory" in criminal law, "criminal law
is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society. This disapprobation is inevitable to the extent that morality is generally founded and
built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is
only an external means of emphasizing moral disapprobation: the method of punishment is in reality
the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral
principles which society requires to be observed and these form the bases of criminal law. Their
breach is an offense not only against the person injured but against society as a whole.428 Thus,
even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done
is to the public morals and the public interest in the moral order.429 Mr. Justice Vitug expresses
concern on this point in his separate opinion. He observes that certain immoral acts which appear
private and not harmful to society such as sexual congress "between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country." His opinion
asks whether these laws on private morality are justified or they constitute impingement on one's
freedom of belief. Discussion on private morality, however, is not material to the case at bar for
whether respondent's conduct, which constitutes concubinage,430 is private in the sense that there is
no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the
legislature has taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not
being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike in rape431 where consent of the
supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in
concubinage negates the prosecution of the action,432 but does not alter the legislature's
characterization of the act as a moral disapprobation punishable by law. The separate opinion states
that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular State should only concern itself
with secular morality." The Court does not draw this distinction in the case at bar. The distinction
relevant to the case is not, as averred and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one hand, and religious morality on
the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this
reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those
wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of
the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the
concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due and observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.
(emphasis supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved),
would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is
impossible for human foresight to provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line between
morality and law? The answer is that, in the last analysis, every good law draws its breath of
life from morals, from those principles which are written with words of fire in the conscience
of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in
the face of the impossibility of enumerating, one by one, all wrongs which cause damages.
When it is reflected that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not but feel that it is
safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting
to every legal system that enduring quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that
a person may with impunity cause damage to his fellow-men so long as he does not break
any law of the State, though he may be defying the most sacred postulates of morality. What
is more, the victim loses faith in the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826 of the German
Civil Code.433 (emphases supplied)
The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions.
Religious morality proceeds from a person's "views of his relations to His Creator and to the
obligations they impose of reverence to His being and character and obedience to His Will," in
accordance with this Court's definition of religion in American Bible Society citing Davis. Religion
also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in
accordance with man's "views of his relations to His Creator."434 But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or the other, and implies
the affirmative "establishment" of a civil order for the resolution of public moral disputes. This
agreement on a secular mechanism is the price of ending the "war of all sects against all"; the
establishment of a secular public moral order is the social contract produced by religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers436, or "public morals" in the Revised Penal Code,437 or
"morals" in the New Civil Code,438 or "moral character" in the Constitution,439 the distinction between
public and secular morality on the one hand, and religious morality, on the other, should be kept in
mind.440 The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only on grounds articulable
in secular terms."441 Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to what some might
regard as religious programs or agenda. The non-believers would therefore be compelled to conform
to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. Expansive religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is inconsistent with this policy of
neutrality.442
In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind endeavors
to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth
with heaven.443 Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its
deepest roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon
closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck
down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where
the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria.
Recognizing the religious nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that
in deciding the case at bar, the approach should consider that, "(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to protect the interests of the larger
society. It is only where their rigid application would serve to obliterate the value which society seeks
to uphold, or defeat the purpose for which they are enacted would, a departure be justified." In
religion clause parlance, the separate opinion holds that laws of general applicability governing
morals should have a secular purpose of directly or indirectly protecting the interests of the state. If
the strict application of these laws (which are the Civil Service Law and the laws on marriage) would
erode the secular purposes of the law (which the separate opinion identifies as upholding the
sanctity of marriage and the family), then in a benevolent neutrality framework, an accommodation of
the unconventional religious belief and practice (which the separate opinion holds should be
respected on the ground of freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required by the Free Exercise
Clause. The separate opinion then makes a preliminary discussion of the values society seeks to
protect in adhering to monogamous marriage, but concludes that these values and the purposes of
the applicable laws should be thoroughly examined and evidence in relation thereto presented in the
OCA. The accommodation approach in the case at bar would also require a similar discussion of
these values and presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the unconventional religious belief and
practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the law,
on the one hand, and religious morality, on the other, is important because the jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the Court makes in the
case at bar should be understood only in this realm where it has authority. More concretely, should
the Court declare respondent's conduct as immoral and hold her administratively liable, the Court will
be holding that in the realm of public morality, her conduct is reprehensible or there are state
interests overriding her religious freedom. For as long as her conduct is being judged within this
realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that
her conduct should be made reprehensible in the realm of her church where it is presently
sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions
prohibiting her conduct are correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances, public morality is not
offended or that upholding her religious freedom is an interest higher than upholding public morality
thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of
her religion are correct nor that other churches which do not allow respondent's conjugal
arrangement should likewise allow such conjugal arrangement or should not find anything immoral
about it and therefore members of these churches are not answerable for immorality to their
Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S.
Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church…are unquestionably ecclesiastical matters which are
outside the province of the civil courts."444 But while the state, including the Court, accords such
deference to religious belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that when religious belief
flows into speech and conduct that step out of the religious sphere and overlap with the secular and
public realm, the state has the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The state's inroad on religion
exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World,
European and American history narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious morality, the more difficult
task is determining which immoral acts under this public and secular morality fall under the phrase
"disgraceful and immoral conduct" for which a government employee may be held administratively
liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of
irregularities and indentations."445 But the case at bar does not require us to comprehensively
delineate between those immoral acts for which one may be held administratively liable and those to
which administrative liability does not attach. We need not concern ourselves in this case therefore
whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much energy grappling with
the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different
jurisdictions have different standards of morality as discussed by the dissents and separate opinions,
although these observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the "law is the witness and
deposit of our moral life," then the rule is not true; in fact, that there are exceptions only affirms the
truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only
affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes such as respect for life and
truth-telling, without which no society will survive. Only one conduct is in question before this Court,
i.e., the conjugal arrangement of a government employee whose partner is legally married to another
which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively how one ought to live,
the Court must focus its attention upon the sole conduct in question before us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-
Santiago groped for standards of morality and stated that the "ascertainment of what is moral or
immoral calls for the discovery of contemporary community standards" but did not articulate how
these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to be considered." It identified the Civil
Service Law and the laws on adultery and concubinage as laws which respondent's conduct has
offended and cited a string of precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled jurisprudence, respondent's
conduct constitutes "disgraceful and immoral conduct." However, the cases cited by the dissent do
not involve the defense of religious freedom which respondent in the case at bar invokes. Those
cited cases cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the
standard of morality, viz: "(w)hether an act is immoral within the meaning of the statute is not to be
determined by respondent's concept of morality. The law provides the standard; the offense is
complete if respondent intended to perform, and did in fact perform, the act which it condemns." The
Mann Act under consideration in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of prostitution or debauchery, or for any
other immoral purpose."447 The resolution of that case hinged on the interpretation of the phrase
"immoral purpose." The U.S. Supreme Court held that the petitioner Mormons' act of transporting at
least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was covered by the phrase "immoral
purpose." In so ruling, the Court relied on Reynolds which held that the Mormons' practice of
polygamy, in spite of their defense of religious freedom, was "odious among the northern and
western nations of Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of
the civilization which Christianity has produced in the Western world,"450 and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at bar. The
pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious" or "barbaric" do
not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in
Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious
freedom of a member of the Jehovah's Witnesses under the same circumstances as respondent will
not prevail over the laws on adultery, concubinage or some other law. We cannot summarily
conclude therefore that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on determining the applicable
moral standards and less on religious freedom, Mme. Justice Ynares-Santiago's dissent
nevertheless discussed respondent's plea of religious freedom and disposed of this defense by
stating that "(a) clear and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of religious profession.
(American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of
public morals, the substantive evil in this case is the tearing down of morality, good order, and
discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present
danger" test that is usually employed in cases involving freedom of expression is not appropriate to
the case at bar which involves purely religious conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct." The
Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts
benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the
constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses.
His dissent avers that respondent should be held administratively liable not for "disgraceful and
immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary
co-accused of her partner in concubinage. The dissent stresses that being a court employee, her
open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself against the charge of
"conduct prejudicial to the best interest of the service." In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that
respondent's plea of religious freedom cannot prevail without so much as employing a test that
would balance respondent's religious freedom and the state's interest at stake in the case at bar.
The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent
neutrality as a framework, the Court cannot simply reject respondent's plea of religious freedom
without even subjecting it to the "compelling state interest" test that would balance her freedom with
the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -
Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably
shows adherence to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik 451 cited in Mr.
Justice Carpio's dissent decisive of the immorality issue in the case at bar. In that case, the Court
dismissed the charge of immorality against a Tausug judge for engaging in an adulterous
relationship with another woman with whom he had three children because "it (was) not 'immoral' by
Muslim standards for Judge Malik to marry a second time while his first marriage (existed)." Putting
the quoted portion in its proper context would readily show that the Sulu Islamic case does not
provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the
Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy 'shall
not apply to a person married x x x under Muslim Law,' it is not 'immoral' by Muslim standards for
Judge Malik to marry a second time while his first marriage exists."452 It was by law, therefore, that
the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an
exception to the general standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case.
Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and
instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in
holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case
at bar, there is no similar law which the Court can apply as basis for treating respondent's conduct
as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at
Bar
The case at bar being one of first impression, we now subject the respondent's claim of religious
freedom to the "compelling state interest" test from a benevolent neutrality stance - i.e. entertaining
the possibility that respondent's claim to religious freedom would warrant carving out an exception
from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should
the government succeed in demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondent's right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and giving up her employment and keeping
her religious practice and family on the other hand, puts a burden on her free exercise of religion. In
Sherbert, the Court found that Sherbert's religious exercise was burdened as the denial of
unemployment benefits "forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand." The burden on respondent in the case at bar is even greater as the
price she has to pay for her employment is not only her religious precept but also her family which,
by the Declaration Pledging Faithfulness, stands "honorable before God and men."
The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to
be sincere in her religious belief and practice and is not merely using the "Declaration of Pledging
Faithfulness" to avoid punishment for immorality. She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was issued to her by her
congregation after ten years of living together with her partner, Quilapio, and ten years before she
entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovah's
Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for such a
practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal
punishment for illicit conduct but to make the "union" of their members under respondent's
circumstances "honorable before God and men." It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters453 of the OCA to the respondent
regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was
issued requiring attendance in the flag ceremony. The OCA's letters were not submitted by
respondent as evidence but annexed by the investigating judge in explaining that he was caught in a
dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy
Court Administrator had different positions regarding respondent's request for exemption from the
flag ceremony on the ground of the Jehovah's Witnesses' contrary belief and practice. Respondent's
request for exemption from the flag ceremony shows her sincerity in practicing the Jehovah's
Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of
the Jehovah's Witnesses and the Jehovah ministers testified that she is a member in good standing.
Nevertheless, should the government, thru the Solicitor General, want to further question the
respondent's sincerity and the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar from its incipience until this
point.
In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her
religious belief and its centrality in her faith, the case at bar cannot still be decided using the
"compelling state interest" test. The case at bar is one of first impression, thus the parties were not
aware of the burdens of proof they should discharge in the Court's use of the "compelling state
interest" test. We note that the OCA found respondent's defense of religious freedom unavailing in
the face of the Court's ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel.
Court personnel have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name and
integrity of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the
preservation of the integrity of the judiciary by maintaining among its ranks a high standard of
morality and decency. However, there is nothing in the OCA's memorandum to the Court that
demonstrates how this interest is so compelling that it should override respondent's plea of religious
freedom nor is it shown that the means employed by the government in pursuing its interest is the
least restrictive to respondent's religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the
compelling interest of the state. The burden of evidence should be discharged by the proper agency
of the government which is the Office of the Solicitor General. To properly settle the issue in the
case at bar, the government should be given the opportunity to demonstrate the compelling state
interest it seeks to uphold in opposing the respondent's stance that her conjugal arrangement is not
immoral and punishable as it comes within the scope of free exercise protection. Should the Court
prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Court's action
would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore
simply take a passing look at respondent's claim of religious freedom, but must instead apply the
"compelling state interest" test. The government must be heard on the issue as it has not been given
an opportunity to discharge its burden of demonstrating the state's compelling interest which can
override respondent's religious belief and practice. To repeat, this is a case of first impression where
we are applying the "compelling state interest" test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the case will make a decisive
difference in the life of the respondent who stands not only before the Court but before her Jehovah
God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor
General is ordered to intervene in the case where it will be given the opportunity (a) to examine the
sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence
on the state's "compelling interest" to override respondent's religious belief and practice; and (c) to
show that the means the state adopts in pursuing its interest is the least restrictive to respondent's
religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court
Administrator's receipt of this Decision.
SO ORDERED.
G.R. No. 27484 September 1, 1927
ANGEL LORENZO, petitioner-appellant,

vs.
THE DIRECTOR OF HEALTH, respondent-appelle.
Gregorio for appellant.

Attorney-General Jaranilla for appellee.
MALCOLM, J.:
The purpose of this appeal is to induce the court to set aside the judgment of the Court of First
Instance of Manila sustaining the law authorizing the segregation of lepers, and denying the petition
for habeas corpus, by requiring the trial court to receive evidence to determine if leprosy is or is not a
contagious disease.
The petition for the writ of habeas corpus was in the usual form. Therein it was admitted that the
applicant was a leper. It was, however, alleged that his confinement in the San Lazaro Hospital in
the City of Manila was in violation of his constitutional rights. The further allegation was made that
leprosy is not an infectious disease. The return of the writ stated that the leper was confined in the
San Lazaro Hospital in conformity with the provisions of section 1058 of the Administrative Code.
But to this was appended, for some unknown reason, the averment that each and every fact of the
petition not otherwise admitted by the return was denied. Although counsel for the appellant makes
mention of the form which the return of the writ of habeas corpus took, so as not to complicate
matters unnecessarily, we prefer to give attention only to so much of the return as is contemplated
by law and to disregard the rest as surplusage. The petitioner not having traversed the return, the
only issue is whether the facts stated in the return as a matter of law authorized the restraint (Code
of Civil Procedure, chap. XXVI; Code of Criminal Procedure, secs. 77 et seq.).
The Philippine law pertaining to the segregation of lepers is found in article XV of chapter 37 of the
Administrative Code. Codal section 1058 empowers the Director of Health and his authorized agents
"to cause to be apprehended, and detained, isolated, or confined, all leprous persons in the
Philippine Islands. "In amplification of this portion of the law are found provisions relating to arrest of
suspected lepers, medical inspection and diagnostic procedure, confirmation of diagnosis by
bacteriological methods, establishment of hospitals, detention camps, and a leper colony, etc.
In its simplest aspects, therefore, we have this situation presented: A leper confined in the San
Lazaro Hospital by the health authorities in conformity with law, but with counsel for the leper
contending that the said law is unconstitutional, and advancing as the basis for that contention the
theory to be substantiated by proof that human beings are not incurable with leprosy, and that the
disease may not be communicated by contact.
Section 1058 of the Administrative Code was enacted by the legislative body in the legitimate
exercise of the police power which extends to the preservation of the public health. It was place on
the statute books in recognition of leprosy as a grave health problem. The methods provided for the
control of leprosy plainly constitute due process of law. The assumption must be that if evidence was
required to establish the necessity for the law, that it was before the legislature when the act was
passed. In the case of a statute purporting the have been enacted in the interest of the public health,
all questions relating to the determination of matters of fact are for the legislature. If there is probable
basis for sustaining the conclusion reached, its findings are not subject to judicial review. Debatable
questions are for the Legislature to decide. The courts do not sit to resolve the merits of conflicting
theories. (1 Cooley's Constitutional Limitations, 8th ed., pp. 379, 380; R. C. L., pp. 111 et seq.;
Jacobson vs. Massachusetts [1904], 197 U. S., 11 Segregation of Lepers [1884], V Hawaiian, 162;
People vs. Durston [N. Y.] [1890], 7 L. R. A., 715; Blue vs. Beach [Ind.] [1900], 50 L. R. A., 64;
Nelson vs. Minneapolis [Minn.] [1910], 29 L. R. A., N. S., 260.)
Judicial notice will be taken of the fact that leprosy is commonly believed to be an infectious disease
tending to cause one afflicted with it to be shunned and excluded from society, and that compulsory
segregation of lepers as a means of preventing the spread of the disease of supported by high
scientific authority (See Osler and McCrea, The Principles and Practice of Medicine, 9th ed., p. 153.)
Upon this view, laws for the segregation of lepers have been provided the world over. Similarly, the
local legislature has regarded leprosy as a contagious disease and has authorized measures to
control the dread scourge. To that forum must the petitioner go to reopen the question. We are frank
to say that it would require a much stronger case than the one at bar for us to sanction admitting the
testimony of expert or other witnesses to show that a law of this character may possibly violate some
constitutional provision.
For more reasons than one, we think that Judge Concepcion took exactly the correct stand in
deciding this test case, and that consequently his decision should be upheld.
Judgment affirmed, with costs.

G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.

ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues
are involved, the Court's decision in this case would undeniably have a profound effect on the
political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-
violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of
power have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of
Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the
support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously
return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila
Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges
to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both combatants and civilians,
dead. There were several other armed sorties of lesser significance, but the message they conveyed
was the same — a split in the ranks of the military establishment that thraetened civilian supremacy
over military and brought to the fore the realization that civilian government could be at the mercy of
a fractious military.
But the armed threats to the Government were not only found in misguided elements and among
rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist
movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas they effectively control
while the separatist are virtually free to move about in armed bands. There has been no let up on
this groups' determination to wrest power from the govermnent. Not only through resort to arms but
also to through the use of propaganda have they been successful in dreating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of
the nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at
economic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results
in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and
move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office
and into exile after causing twenty years of political, economic and social havoc in the country and
who within the short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation
of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:
1. Does the President have the power to bar the return of former President Marcos
and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and
his family from returning to the Philippines, in the interest of "national security, public
safety or public health
a. Has the President made a finding that the return of former President Marcos and
his family to the Philippines is a clear and present danger to national security, public
safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in

making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public
safety, or public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar

the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former President Marcos
and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so "within the limits prescribed by law." Nor may the
President impair their right to travel because no law has authorized her to do so. They advance the
view that before the right to travel may be impaired by any authority or agency of the government,
there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to
return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within
the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to
his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a
political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reside here at this time in the face of the determination by the President that
such return and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political

question as it involves merely a determination of what the law provides on the matter
and application thereof to petitioners Ferdinand E. Marcos and family. But when the
question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question becomes political and this
Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable question
which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence
here will endanger national security and public safety? this is still a justiciable
question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E.

Marcos and family shall return to the Philippines and establish their residence here?
This is now a political question which this Honorable Court can not decide for it falls
within the exclusive authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights.
In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael
Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador,
and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to their
homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul
S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and
its limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to
travel and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766,
69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines
to other countries or within the Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to one's country, a totally distinct right
under international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the
right to freedom of movement and abode within the territory of a state, the right to leave a country,
and the right to enter one's country as separate and distinct rights. The Declaration speaks of the
"right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately
from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On
the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose
his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art.
12(2)] which rights may be restricted by such laws as "are necessary to protect national security,
public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to
return to one's country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose
of effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be
limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary.
An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for
its resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve
whether or not the President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the express power of the Court
under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with
grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of
the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a
grant of the legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government." [At 631-
632.1 If this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power which is vested
in a hierarchy of courts, it can equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain powers by the
President, i.e., the power of control over all executive departments, bureaus and offices, the power
to execute the laws, the appointing power, the powers under the commander-in-chief clause, the
power to grant reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and the power to
address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers
of the Constitution intend that the President shall exercise those specific powers and no other? Are
these se enumerated powers the breadth and scope of "executive power"? Petitioners advance the
view that the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated
is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4-
Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is
legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same
problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article 11 in its opening words: "The executive

power shall be vested in a President of the United States of America." . . .. [The
President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held
the office from Washington to the early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of

course, an agency of government subject to unvarying demands and duties no
remained, of cas President. But, more than most agencies of government, it changed
shape, intensity and ethos according to the man in charge. Each President's
distinctive temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The
thrust of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional order. [At 212-
213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that
the consideration of tradition and the development of presidential power under the different
constitutions are essential for a complete understanding of the extent of and limitations to the
President's powers under the 1987 Constitution. The 1935 Constitution created a strong President
with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify
the system of government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the point that he was
also the de facto Legislature. The 1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive and judicial powers by their
actual distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws,
for the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants
the President other powers that do not involve the execution of any provision of law, e.g., his power
over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the
Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court,
in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. [At 210- 211.]
The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection
of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the
country are the deposed dictator and his family at whose door the travails of the country are laid and
from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. The
constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of limits
and must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against
the exercise of rights of certain individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of the President, as steward of
the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand
[See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the
laws are faithfully executed [see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and is best lodged
in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's exercising as Commander-in- Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has
been recognized by memembers of the Legislature, and is manifested by the Resolution proposed in
the House of Representatives and signed by 103 of its members urging the President to allow Mr.
Marcos to return to the Philippines "as a genuine unselfish gesture for true national reconciliation
and as irrevocable proof of our collective adherence to uncompromising respect for human rights
under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution
does not question the President's power to bar the Marcoses from returning to the Philippines,
rather, it appeals to the President's sense of compassion to allow a man to come home to die in his
country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to
the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It must be treated as a
matter that is appropriately addressed to those residual unstated powers of the President which are
implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to
the political departments to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for Congress or for the people
themselves through a plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a
dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that
the framers intended to widen the scope of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political questions are involved, the Constitution
limits the determination to whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December
11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the Executive
is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to
check — not to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for
the President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that
she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's
and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups. But
it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President cannot be said to have
acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses
poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence.
The State, acting through the Government, is not precluded from taking pre- emptive action against
threats to its existence if, though still nascent they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of government. The preservation of the
State the fruition of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot
shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the
hardships brought about by the plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the Philippines in a position to destabilize
the country, while the Government has barely scratched the surface, so to speak, in its efforts to
recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We
cannot ignore the continually increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy
is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would
wipe away the gains achieved during the past few years and lead to total economic collapse. Given
what is within our individual and common knowledge of the state of the economy, we cannot argue
with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.
U.S. Supreme Court
Nishimura Ekiu v. United States, 142 U.S. 651 (1892)
Nishimura Ekiu v. United States
No. 1393
Argued and submitted December 16, 1891
Decided January 18, 1892
142 U.S. 651
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
Syllabus
The Act of March 3, 1591, c. 551, forbidding certain classes of alien immigrants to land
in the United States, is constitutional and valid.
Upon a writ of habeas corpus, if sufficient ground for the prisoner's detention by the
government is shown, he is not to be discharged for defects in the original arrest or
commitment.
Page 142 U. S. 652
Inspectors of immigration under the Act of March 3, 1891, c. 551, are to be appointed by
the Secretary of the Treasury.
The decision of an inspector of immigration, within the authority conferred upon him by
the Act of March 3, 1891, c. 651, that an alien immigrant shall not be permitted to land
because within one of the classes specified in that act, is final and conclusive against
his right to land, except upon appeal to the Commissioner of Immigration and the
Secretary of the Treasury, and cannot be reviewed on habeas corpus even if it is not
shown that the inspector took or recorded any evidence on the question.
Habeas corpus, sued out May 13, 1891, by a female subject of the Emperor of Japan
restrained of her liberty and detained at San Francisco upon the ground that she should
not be permitted to land in the United States. The case, as appearing by the papers filed
and by the report of a commissioner of the circuit court, to whom the case was referred
by that court "to find the facts and his conclusions of law, and to report a judgment
therein," and by the admissions of counsel at the argument in this Court, was as follows:
The petitioner arrived at the port of San Francisco on the steamship Belgic from
Yokohama, Japan, on May 7, 1891. William H. Thornley, Commissioner of Immigration
of the State of California, and claiming to act under instructions from and contract with
the Secretary of the Treasury of the United States, refused to allow her to land, and on
May 13, 1891, in a
"report of alien immigrants forbidden to land under the provisions of the Act of Congress
approved August 3, 1882 at the port of San Francisco, being passengers upon the
steamer Belgic, Walker, master, which arrived May 7, 1891, from Yokohama,"
made these statements as to the petitioner:
"Sex, female; age, 25. Passport states that she comes to San Francisco in company
with her husband, which is not a fact. She states that she has been married two years,
and that her husband has been in the United States one year, but she does not know
his address. She has $22, and is to stop at some hotel until her husband calls for her."
With this report Thornley sent a letter to the collector stating that after a careful
examination of the alien immigrants on board the Belgic, he was satisfied that the
petitioner and five others were "prohibited from landing by the existing
Page 142 U. S. 653
immigration laws" for reasons specifically stated with regard to each, and that, pending
the collector's final decision as to their right to land, he had "placed them temporarily in
the Methodist Chinese Mission, as the steamer was not a proper place to detain them,
until the date of sailing." On the same day, the collector wrote to Thornley, approving his
action.
Thereafter, on the same day, this writ of habeas corpus was issued to Thornley, and he
made the following return thereon:
"In obedience to the within writ, I hereby produce the body of Nishimura Ekiu, as within
directed, and return that I hold her in my custody by direction of the customs authorities
of the port of San Francisco, California, under the provisions of the immigration act; that,
by an understanding between the United States attorney and the attorney for petitioner,
said party will remain in the custody of the Methodist Episcopal Japanese and Chinese
Mission pending a final disposition of the writ."
The petitioner remained at the mission house until the final order of the circuit court.
Afterwards, and before a hearing, the following proceedings took place: on May 16th the
district attorney of the United States intervened in opposition to the writ of habeas
corpus, insisting that the finding and decision of Thornley and the collector were final
and conclusive, and could not be reviewed by the court. John L. Hatch, having been
appointed on May 14, by the Secretary of the Treasury, inspector of immigration at the
port of San Francisco, on May 16th made the inspection and examination required by
the Act of March 3, 1891, c. 551, entitled "An act in amendment to the various acts
relative to immigration and the importation of aliens under contract or agreement to
perform labor," the material provisions of which are set out in the margin, * and refused
to
Page 142 U. S. 654
allow the petitioner to land, and made a report to the collector in the very words of
Thornley's report, except in stating
Page 142 U. S. 655
the date of the act of Congress, under which he acted, as March 3, 1891, instead of
August 3, 1882, and, on May 18th,
Page 142 U. S. 656
Hatch intervened in opposition to the writ of habeas corpus, stating these doings of his,
and that upon said examination he found the petitioner to be "an alien immigrant from
Yokohama, empire of Japan," and "a person without means of support, without relatives
or friends in the United States," and
"a person unable to care for herself, and liable to become a public charge,and therefore
inhibited from landing under the provisions of said act of 1891, and previous acts of
which said act is amendatory,"
and insisting that his finding and decision were reviewable by the Superintendent of
immigration and the Secretary of the Treasury only.
At the hearing before the commissioner of the circuit court, the petitioner offered to
introduce evidence as to her right to land, and contended that the act of 1891, if
construed as vesting in the officers named therein exclusive authority to determine that
right, was insofar unconstitutional, as depriving her of her liberty without due process of
law, and that by the Constitution she had a right to the writ of habeas corpus, which
carried with it the right to a determination by the court as to the legality of her detention,
and therefore, necessarily, the right to inquire into the facts relating thereto.
The commissioner excluded the evidence offered as to the petitioner's right to land, and
reported that the question of that right had been tried and determined by a duly
constituted and competent tribunal having jurisdiction in the premises; that the decision
of Hatch, as Inspector of Immigration, was conclusive on the right of the petitioner to
land, and could not be reviewed by the court, but only by the Commissioner of
Immigration and the Secretary of the Treasury, and that the petitioner was not
unlawfully restrained of her liberty.
On July 24, 1891, the circuit court confirmed its commissioner's report, and ordered
"that she be remanded by the marshal to the custody from which she has been taken,
to-wit, to the custody of J. L. Hatch, immigration inspector for the port of San Francisco,
to be dealt with as he may find that
Page 142 U. S. 657
the law requires, upon either the present testimony before him or that and such other as
he may deem proper to take."
The petitioner appealed to this Court.
Page 142 U. S. 658
MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the
Court.
As this case involves the constitutionality of a law of the United States, it is within the
appellate jurisdiction of this
Page 142 U. S. 659
Court notwithstanding the appeal was taken since the act establishing circuit courts of
appeals took effect. Act March 3, 1891, c. 517, § 5, 26 Stat. 827, 828, 1115.
It is an accepted maxim of international law that every sovereign nation has the power,
as inherent in sovereignty and essential to self-preservation, to forbid the entrance of
foreigners within its dominions or to admit them only in such cases and upon such
conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100; 1 Phillimore (3d ed.) c.
10, § 220. In the United States, this power is vested in the national government, to
which the Constitution has committed the entire control of international relations, in
peace as well as in war. It belongs to the political department of the government, and
may be exercised either through treaties made by the President and Senate or through
statutes enacted by Congress, upon whom the Constitution has conferred power to
regulate commerce with foreign nations, including the entrance of ships, the importation
of goods, and the bringing of persons into the ports of the United States; to establish a
uniform rule of naturalization; to declare war, and to provide and maintain armies and
navies, and to make all laws which may be necessary and proper for carrying into effect
these powers and all other powers vested by the Constitution in the government of the
United States, or in any department or officer thereof. Constitution, Art. I, sec. 8; Head
Money Cases, 112 U. S. 580; Chae Chan Ping v. United States, 130 U. S. 581, 130 U.
S. 604-609.
The supervision of the admission of aliens into the United States may be entrusted by
Congress either to the Department of State, having the general management of foreign
relations, or to the Department of the Treasury, charged with the enforcement of the
laws regulating foreign commerce, and Congress has often passed acts forbidding the
immigration of particular classes of foreigners, and has committed the execution of
these acts to the Secretary of the Treasury, to collectors of customs, and to inspectors
acting under their authority. See, for instance, Acts of March 3, 1875, c. 141, 18 Stat.
477; August 3, 1882, c. 376, 22 Stat. 214; February 23, 1887, c.
Page 142 U. S. 660
220, 24 Stat. 414; October 19, 1888, c. 1210, 25 Stat. 566, as well as the various acts
for the exclusion of the Chinese.
An alien immigrant, prevented from landing by any such officer claiming authority to do
so under an act of Congress and thereby restrained of his liberty, is doubtless entitled to
a writ of habeas corpus to ascertain whether the restraint is lawful. Chew Heong v.
United States, 112 U. S. 536; United States v. Jung Ah Lung, 124 U. S. 621; Wan Shing
v. United States, 140 U. S. 424; Lau Ow Bew, Petitioner, 141 U. S. 583. And Congress
may, if it sees fit, as in the statutes in question in United States v. Jung Ah Lung, just
cited, authorize the courts to investigate and ascertain the facts on which the right to
land depends. But, on the other hand, the final determination of those facts may be in
trusted by Congress to executive officers, and in such a case, as in all others, in which a
statute gives a discretionary power to an officer, to be exercised by him upon his own
opinion of certain facts, he is made the sole and exclusive judge of the existence of
those facts, and no other tribunal, unless expressly authorized by law to do so, is at
liberty to reexamine or controvert the sufficiency of the evidence on which he
acted. Martin v. Mott, 12 Wheat. 19, 25 U. S. 31; Philadelphia & Trenton Railroad v.
Stimpson, 14 Pet. 448, 39 U. S. 458; Benson v. McMahon, 127 U. S. 457; In re
Oteiza, 136 U. S. 330. It is not within the province of the judiciary to order that
foreigners who have never been naturalized, nor acquired any domicile or residence
within the United States, nor even been admitted into the country pursuant to law shall
be permitted to enter in opposition to the constitutional and lawful measures of the
legislative and executive branches of the national government. As to such persons, the
decisions of executive or administrative officers, acting within powers expressly
conferred by Congress, are due process of law. Murray v. Hoboken Co., 18 How.
272; Hilton v. Merritt, 110 U. S. 97.
The immigration Act of August 3, 1882, c. 376, which was held to be constitutional in
the Head-Money Cases, above cited, imposed a duty of fifty cents for each alien
passenger coming by vessel into any port of the United States, to be
Page 142 U. S. 661
paid to the collector of customs, and by him into the Treasury, to constitute an
immigrant fund; by § 2, the Secretary of the Treasury was charged with the duty of
execution the provisions of the act, and with the supervision of the business of
immigration to the United States, and, for these purposes, was empowered to make
contracts with any state commission, board, or officers, and it was made their duty to go
on board vessels and examine the condition of immigrants,
"and if on such examination there shall be found among such passengers any convict,
lunatic, idiot, or any person unable to take care of himself or herself without becoming a
public charge, they shall report the same in writing to the collector of such port, and
such persons shall not be permitted to land,"
and by section 3, the Secretary of the Treasury was authorized to establish rules and
regulations, and to issue instructions, to carry out this and other immigration laws of the
United States. 22 Stat. 214.
The doings of Thornley, the state commissioner of immigration, in examining and

detaining the petitioner, and in reporting to the collector appear to have been under that
act, and would be justified by the second section thereof unless that section should be
taken to have been impliedly repealed by the last paragraph of section 8 of the Act of
March 3, 1891, c. 551, by which all duties imposed and powers conferred by that
section upon state commissions, boards, or officers, acting under contract with the
Secretary of the Treasury, "shall be performed and exercised, as occasion may arise,
by the inspection officers of the United States." 26 Stat. 1085.
But it is unnecessary to express a definite opinion on the authority of Thornley to inspect

and detain the petitioner.
Putting her in the mission house as a more suitable place than the steamship, pending
the decision of the question of her right to land, and keeping her there, by agreement
between her attorney and the attorney for the United States, until final judgment upon
the writ of habeas corpus, left her in the same position, so far as regarded her right to
land in the United States, as if she never had been removed from the steamship.
Before the hearing upon the writ of habeas corpus, Hatch
Page 142 U. S. 662
was appointed by the Secretary of the Treasury inspector of immigration at the port of
San Francisco, and, after making the inspection and examination required by the act of
1891, refused to allow the petitioner to land, and made a report to the collector of
customs stating facts which tended to show, and which the inspector decided did show,
that she was a "person likely to become a public charge," and so within one of the
classes of aliens "excluded from admission into the United States" by the first section of
that act. And Hatch intervened in the proceedings on the writ of habeas corpus, setting
up his decision in bar of the writ.
A writ of habeas corpus is not like an action to recover damages for an unlawful arrest
or commitment, but its object is to ascertain whether the prisoner can lawfully be
detained in custody, and, if sufficient ground for his detention by the government is
shown, he is not to be discharged for defects in the original arrest or commitment. Ex
part Bollman, 4 Cranch 75, 114 [argument of counsel -- omitted], 8 U. S. 125; Coleman
v. Tennessee, 97 U. S. 509, 97 U. S. 519; United States v. McBratney, 104 U. S.
621, 104 U. S. 624; Kelley v. Thomas, 15 Gray 192; King v. Marks, 3 East,
157; Shuttleworth's Case, 9 Q.B. 651.
The case must therefore turn on the validity and effect of the action of Hatch as
Inspector of Immigration.
Section 7 of the act of 1891 establishes the office of Superintendent of Immigration, and
enacts that he "shall be an officer in the Treasury Department, under the control and
supervision of the Secretary of the Treasury." By § 8, "the proper inspection officers" are
required to go on board any vessel bringing alien immigrants and to inspect and
examine them, and may for this purpose remove and detain them on shore, without
such removal's being considered a landing; and
"shall have power to administer oaths, and to take and consider testimony touching the
right of any such aliens to enter the United States, all of which shall be entered of
record. . . . All decisions made by the inspection officers or their assistants touching the
right of any alien to land, when adverse to such right, shall be final unless appeal be
taken to the Superintendent of Immigration, whose action shall be subject to review by
the Secretary
Page 142 U. S. 663
of the Treasury,"
and the Secretary of the Treasury may prescribe rules for inspection along the borders
of Canada, British Columbia, and Mexico, "provided that not exceeding one inspector
shall be appointed for each customs district."
It was argued that the appointment of Hatch was illegal because it was made by the
Secretary of the Treasury, and should have been made by the Superintendent of
Immigration. But the Constitution does not allow Congress to vest the appointment of
inferior officers elsewhere than "in the President alone, in the courts of law, or in the
heads of departments." The act of 1891 manifestly contemplates and intends that the
inspectors of immigration shall be appointed by the Secretary of the Treasury, and
appointments of such officers by the Superintendent of Immigration could be upheld
only by presuming them to be made with the concurrence or approval of the Secretary
of the Treasury, his official head. Constitution, Art. II, Section 2; United States v.
Hartwell, 6 Wall. 385; Stanton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 F. 506.
It was also argued that Hatch's proceedings did not conform to section 8 of the act of
1891 because it did not appear that he took testimony on oath, and because there was
no record of any testimony or of his decision. But the statute does not require inspectors
to take any testimony at all, and allows them to decide on their own inspection and
examination the question of the right of any alien immigrant to land. The provision relied
on merely empowers inspectors to administer oaths, and to take and consider
testimony, and requires only testimony so taken to be entered of record.
The decision of the Inspector of Immigration being in conformity with the act of 1891,
there can be no doubt that it was final and conclusive against the petitioner's right to
land in the Unites states. The words of section 8 are clear to that effect, and were
manifestly intended to prevent the question of an alien immigrant's right to land, when
once decided adversely by an inspector, acting within the jurisdiction conferred upon
him, from being impeached or reviewed, in the courts or otherwise, save only by appeal
to the inspector's
Page 142 U. S. 664
official superiors, and in accordance with the provisions of the act. Section 13, by which
the circuit and district courts of the United States are "invested with full and concurrent
jurisdiction of all causes, civil and criminal, arising under any of the provisions of this
act," evidently refers to causes of judicial cognizance, already provided for, whether civil
actions in the nature of debt for penalties under sections 3 and 4, or indictments for
misdemeanors under section 6, 8, and 10. Its intention was to vest concurrent
jurisdiction of such causes in the circuit and district courts, and it is impossible to
construe it as giving the courts jurisdiction to determine matters which the act has
expressly committed to the final determination of executive officers.
The result is that the act of 1891 is constitutional and valid; the Inspector of Immigration
was duly appointed; his decision against the petitioner's right to land in the United
States was within the authority conferred upon him by that act; no appeal having been
taken to the Superintendent of Immigration, that decision was final and conclusive; the
petitioner is not unlawfully restrained of her liberty, and the order of the circuit court is
Affirmed.
MR. JUSTICE BREWER dissented.
"SEC. 1. The following classes of aliens shall be excluded from admission into the
United States in accordance with the existing acts regulating immigration other than
those concerning Chinese laborers: all idiots, insane persons, paupers or persons likely
to become a public charge, persons suffering from a loathsome or a dangerous
contagious disease, persons who have been convicted of a felony or other infamous
crime or misdemeanor involving moral turpitude,"
etc.
By sections 3 and 4, certain offenses are defined and subjected to the penalties
imposed by the Act of February 26, 1885, c. 164, section 3, namely, penalties of $1,000,
"which may be sued for and recovered by the United States, or by any person who shall
first bring his action therefor, . . . as debts of like amount are now recovered in the
circuit courts of the United States, the proceeds to be paid into the Treasury of the
United States."
23 Stat. 333.
"SEC. 6. Any person who shall bring into or land in the United States by vessel or
otherwise, or who shall aid to bring into or land in the United States by vessel or
otherwise, any alien not lawfully entitled to enter the United States, shall be deemed
guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding
one thousand dollars or by imprisonment for a term not exceeding one year, or by both
such fine and imprisonment."
"SEC. 7. The office of Superintendent of Immigration is hereby created and established,

and the President, by and with the advice and consent of the Senate, is authorized and
directed to appoint such officer, whose salary shall be four thousand dollars per annum,
payable monthly. The Superintendent of Immigration shall be an officer in the Treasury
Department, under the control and supervision of the Secretary of the Treasury, to
whom he shall make annual reports in writing of the transactions of his office, together
with such special reports in writing as the Secretary of the Treasury shall require."
"SEC. 8. Upon the arrival by water at any place within the United States of any alien
immigrants, it shall be the duty of the commanding officer and the agents of the steam
or sailing vessel by which they came to report the name, nationality, last residence, and
destination of every such alien, before any of them are landed, to the proper inspection
officers, who shall thereupon go or send competent assistants on board such vessel,
and there inspect all such aliens, or the inspection officers may order a temporary
removal of such aliens for examination at a designated time and place, and then and
there detain them until a thorough inspection is made. But such removal shall not be
considered a landing during the pendency of such examination. The medical
examination shall be made by surgeons of the marine hospital service. In cases where
the services of a marine hospital surgeon cannot be obtained without causing
unreasonable delay, the inspector may cause an alien to be examined by a civil
surgeon, and the Secretary of the Treasury shall fix the compensation for such
examination. The inspection officers and their assistants shall have power to administer
oaths, and to take and consider testimony touching the right of any such aliens to enter
the United States, all of which shall be entered of record. During such inspection, after
temporary removal, the superintendent shall cause such aliens to be properly housed,
fed, and cared for, and also, in his discretion, such as are delayed in proceeding to their
destination after inspection. All decisions made by the inspection officers or their
assistants touching the right of any alien to land, when adverse to such right, shall be
final unless appeal be taken to the Superintendent of Immigration, whose action shall be
subject to review by the Secretary of the Treasury. It shall be the duty of the aforesaid
officers and agents of such vessel to adopt due precautions to prevent the landing of
any alien immigrant at any place or time other than that designated by the inspection
officers, and any such officer or agent or person in charge of such vessel who shall
either knowingly or negligently land or permit to land any alien immigrant at any place or
time other than that designated by the inspection officers shall be deemed guilty of a
misdemeanor, and punished by a fine not exceeding one thousand dollars or by
imprisonment for a term not exceeding one year, or by both such fine and
imprisonment."
"The Secretary of the Treasury may prescribe rules for inspection along the borders of
Canada, British Columbia, and Mexico so as not to obstruct or unnecessarily delay,
impede, or annoy passengers in ordinary travel between said countries, provided that
not exceeding one inspector shall be appointed for each customs district, and whose
salary shall not exceed twelve hundred dollars per year."
"All duties imposed and powers conferred by the second section of the Act of August
third, eighteen hundred and eighty-two, upon state commissioners, boards, or officers
acting under contract with the Secretary of the Treasury, shall be performed and
exercised, as occasion may arise, by the inspection officers of the United States."
"SEC. 10. All aliens who may unlawfully come to the United States shall, if practicable,
be immediately sent back on the vessel by which they were brought in. The cost of their
maintenance while on land, as well as the expense of the return of such aliens, shall be
borne by the owner or owners of the vessel on which such aliens came, and if any
master, agent, consignee, or owner of such vessel shall refuse to receive back on board
the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect
to return them to the port from which they came, or to pay the cost of their maintenance
while on land, such master, agent, consignee, or owner shall be deemed guilty of a
misdemeanor, and shall be punished by a fine not less than three hundred dollars for
each and every offense, and any such vessel shall not have clearance from any port of
the United States while any such fine is unpaid."
Section 11 provides for the return within one year of any alien coming into the United
States in violation of law.
Section 12 saves all prosecutions and proceedings, criminal or civil, begun under any
act hereby amended.
By section 13, the circuit and district courts of the United States are "invested with full
and concurrent jurisdiction of all causes, civil and criminal, arising under any of the
provisions of this act," and the act is to go into effect on April 1, 1891. 26 Stat. 1084-
1086.
EN BANC
[ G.R. No. 238467, February 12, 2019 ]
MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM,

AND ODON S. BANDIOLA, PETITIONERS, V. RODRIGO R.
DUTERTE, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; SALVADOR C. MEDIALDEA, EXECUTIVE
SECRETARY; AND EDUARDO M. AÑO, [SECRETARY] OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
RESPONDENTS.
DECISION
DEL CASTILLO, J.:
Paradise is a place of bliss, felicity, and delight.[1] For Filipinos and foreign nationals
alike, Boracay - a small island in Malay, Aklan, with its palm-fringed, pristine white
sand beaches, azure waters, coral reefs, rare seashells,[2] and a lot more to
offer,[3] - is indeed a piece of paradise. Unsurprisingly, Boracay is one of the
country's prime tourist destinations. However, this island-paradise has been
disrespected, abused, degraded, over-used, and taken advantage of by both locals
and tourists. Hence, the government gave Boracay its much-needed respite and
rehabilitation. However, the process by which the rehabilitation was to be
implemented did not sit well with petitioners, hence, the present petition.
The Case
Before this Court is a Petition for Prohibition and Mandamus with Application for
Temporary Restraining Order, Preliminary Injunction, and/or Status Quo Ante Order
filed by petitioners Mark Anthony V. Zabal (Zabal), Thiting Estoso Jacosalem
(Jacosalem), and Odon S. Bandiola (Bandiola) against respondents President
Rodrigo R. Duterte (President Duterte), Executive Secretary Salvador C. Medialdea,
and Secretary Eduardo M. Año of the Department of Interior and Local Government
(DILG).
The Parties
Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of
the petition, were earning a living from the tourist activities therein. Zabal claims to
build sandcastles for tourists while Jacosalem drives for tourists and workers in the
island. While not a resident, Bandiola, for his part, claims to occasionally visit
Boracay for business and pleasure. The three base their locus standi on direct injury
and also from the transcendental importance doctrine.[4] Respondents, on the other
hand, are being sued in their capacity as officials of the government.
The Facts
Claiming that Boracay has become a cesspool, President Duterte first made public
his plan to shut it down during a business forum held in Davao sometime February
2018.[5] This was followed by several speeches and news releases stating that he
would place Boracay under a state of calamity. True to his words, President Duterte
ordered the shutting down of the island in a cabinet meeting held on April 4, 2018.
This was confirmed by then Presidential Spokesperson Harry L. Roque, Jr. in a
press briefing the following day wherein he formally announced that the total
closure of Boracay would be for a maximum period of six months starting April 26,
2018.[6]
Following this pronouncement, petitioners contend that around 630 police and
military personnel were readily deployed to Boracay including personnel for crowd
dispersal management.[7] They also allege that the DILG had already released
guidelines for the closure.[8]
Petitioners claim that ever since the news of Boracay's closure came about, fewer
tourists had been engaging the services of Zabal and Jacosalem such that their
earnings were barely enough to feed their families. They fear that if the closure
pushes through, they would suffer grave and irreparable damage. Hence, despite
the fact that the government was then yet to release a formal issuance on the
matter,[9] petitioners filed the petition on April 25, 2018 praying that:
(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING ORDER (TRO) and/or a WRIT OF
PRELIMINARY PROHIBITORY INJUNCTION be immediately issued RESTRAINING and/or ENJOINING
the respondents, and all persons acting under their command, order, and responsibility from
enforcing a closure of Boracay Island or from banning the petitioners, tourists, and non-residents
therefrom, and a WRIT OF PRELIMINARY MANDATORY INJUNCTION directing the respondents, and
all persons acting under their command, order, and responsibility to ALLOW all of the said persons
to enter and/or leave Boracay Island unimpeded;
(b) In the alternative, if the respondents enforce the closure after the instant petition is filed, that a
STATUS QUO ANTE Order be issued restoring and maintaining the condition prior to such closure;
(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING and/or

ENJOINING the respondents, and all persons acting under their command, order, and responsibility
from enforcing a closure of Boracay Island or from banning the petitioners, tourists, and non-
residents therefrom, and further DECLARING the closure of Boracay Island or the ban against
petitioners, tourists, and non-residents therefrom to be UNCONSTITUTIONAL.
Other reliefs just and equitable under the premises are similarly prayed for.[10]
On May 18, 2018, petitioners filed a Supplemental Petition[11] stating that the day
following the filing of their original petition or on April 26, 2018, President Duterte
issued Proclamation No. 475[12] formally declaring a state of calamity in Boracay
and ordering its closure for six months from April 26, 2018 to October 25, 2018.
The closure was implemented on even date. Thus, in addition to what they prayed
for in their original petition, petitioners implore the Court to declare as
unconstitutional Proclamation No. 475 insofar as it orders the closure of Boracay
and ban of tourists and nonresidents therefrom.[13]
In the Resolutions dated April 26, 2018[14] and June 5, 2018,[15] the Court required
respondents to file their Comment on the Petition and the Supplemental Petition,
respectively. Respondents filed their Consolidated Comment[16] on July 30, 2018
while petitioners filed their Reply[17] thereto on October 12, 2018.
On October 26, 2018, Boracay was reopened to tourism.
Petitioners' Arguments
Petitioners state that a petition for prohibition is the appropriate remedy to raise
constitutional issues and to review and/or prohibit or nullify, when proper, acts of
legislative and executive officials. An action for mandamus, on the other hand, lies
against a respondent who unlawfully excludes another from the enjoyment of an
entitled right or office. Justifying their resort to prohibition and mandamus,
petitioners assert that (1) this case presents constitutional issues, i.e., whether
President Duterte acted within the scope of the powers granted him by the
Constitution in ordering the closure of Boracay and, whether the measures
implemented infringe upon the constitutional rights to travel and to due process of
petitioners as well as of tourists and non-residents of the island; and, (2) President
Duterte exercised a power legislative in nature, thus unlawfully excluding the
legislative department from the assertion of such power.
As to the substantive aspect, petitioners argue that Proclamation No. 475 is an

invalid exercise of legislative powers. They posit that its issuance is in truth a law-
making exercise since the proclamation imposed a restriction on the right to travel
and therefore substantially altered the relationship between the State and its
people by increasing the former's power over the latter. Simply stated, petitioners
posit that Proclamation No. 475 partakes of a law the issuance of which is not
vested in the President. As such, Proclamation No. 475 must be struck down for
being the product of an invalid exercise of legislative power.
Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for

infringing on the constitutional rights to travel and to due process.
Petitioners point out that although Section 6, Article III of the Constitution explicitly
allows the impairment of the right to travel, two conditions, however, must concur
to wit: (1) there is a law restricting the said right, and (2) the restriction is based
on national security, public safety or public health. For petitioners, neither of these
conditions have been complied with. For one, Proclamation No. 475 does not refer
to any specific law restricting the right to travel. Second, it has not been shown that
the presence of tourists in the island poses any threat or danger to national
security, public safety or public health.
As to the right to due process, petitioners aver that the same covers property rights
and these include the right to work and earn a living. Since the government,
through Proclamation No. 475, restricted the entry of tourists and non-residents
into the island, petitioners claim that they, as well as all others who work, do
business, or earn a living in the island, were deprived of the source of their
livelihood as a result thereof. Their right to work and earn a living was curtailed by
the proclamation. Moreover, while Proclamation No. 475 cites various violations of
environmental laws in the island, these, for the petitioners, do not justify disregard
of the rights of thousands of law-abiding people. They contend that environmental
laws provide for specific penalties intended only for violators. Verily, to make those
innocent of environmental transgressions suffer the consequences of the Boracay
closure is tantamount to violating their right to due process.
Petitioners likewise argue that the closure of Boracay could not be anchored on
police power. For one, police power must be exercised not by the executive but by
legislative bodies through the creation of statutes and ordinances that aim to
promote the health, moral, peace, education, safety, and general welfare of the
people. For another, the measure is unreasonably unnecessary and unduly
oppressive.
In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly
impinges upon the local autonomy of affected Local Government Units (LGUs) since
it orders the said LGUs to implement the closure of Boracay and the ban of tourists
and non-residents therefrom. While petitioners acknowledge the President's power
of supervision over LGUs, they nevertheless point out that he does not wield the
power of control over them. As such, President Duterte can only call the attention
of the LGUs concerned with regard to rules not being followed, which is the true
essence of supervision, but he cannot lay down the rules himself as this already
constitutes control.
Finally, petitioners state that this case does not simply revolve on the need to
rehabilitate Boracay, but rather, on the extent of executive power and the manner
by which it was wielded by President Duterte. To them, necessity does not justify
the President's abuse of power.
Respondents' Arguments
At the outset, respondents assert that President Duterte must be dropped as party-
respondent in this case because he is immune from suit. They also argue that the
petition should be dismissed outright for lack of basis. According to respondents,
prohibition is a preventive remedy to restrain future action. Here, President Duterte
had already issued Proclamation No. 475 and in fact, the rehabilitation of the island
was then already ongoing. These, according to respondents, have rendered
improper the issuance of a writ of prohibition considering that as a rule, prohibition
does not lie to restrain an act that is already fait accompli. Neither
is mandamus proper. Section 3, Rule 65 of the Rules of Court provides that
a mandamus petition may be resorted to when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station. Respondents
argue that mandamus will not lie in this case because they were not neglectful of
their duty to protect the environment; on the contrary, they conscientiously
performed what they were supposed to do by ordering the closure of Boracay to
give way to its rehabilitation. Thus, to them, mandamus is obviously inappropriate.
At any rate, respondents contend that there is no real justiciable controversy in this
case. They see no clash between the right of the State to preserve and protect its
natural resources and the right of petitioners to earn a living. Proclamation No. 475
does not prohibit anyone from being gainfully employed.
Respondents moreover maintain that the petition is in the nature of a Strategic

Lawsuit Against Public Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or
the Rules of Procedure for Environmental Cases, or a legal action filed to harass,
vex, exert undue pressure or stifle any legal recourse that any person, institution or
the government has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights. Respondents
thus assert that the petition must be dismissed since it was filed for the said sole
purpose.
With regard to the substantive aspect, respondents contend that the issuance of
Proclamation No. 475 is a valid exercise of delegated legislative power, it being
anchored on Section 16 of Republic Act (RA) No. 10121, otherwise known as the
Philippine Disaster Risk Reduction and Management Act of 2010, or the authority
given to the President to declare a state of calamity, viz.:
SECTION 16. Declaration of State of Calamity. - The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of calamity,
and the lifting thereof, based on the criteria set by the National Council. The
President's declaration may warrant international humanitarian assistance as
deemed necessary.
xxxx
They likewise contend that Proclamation No. 475 was issued pursuant to the
President's executive power under Section 1, Article VII of the Constitution. As
generally defined, executive power is the power to enforce and administer laws. It
is the power of implementing the laws and enforcing their due observance. And in
order to effectively discharge the enforcement and administration of the laws, the
President is granted administrative power over bureaus and offices, which includes
the power of control. The power of control, in turn, refers to the authority to direct
the performance of a duty, restrain the commission of acts, review, approve,
reverse or modify acts and decisions of subordinate officials or units, and prescribe
standards, guidelines, plans and programs. Respondents allege that President
Duterte's issuance of Proclamation No. 475 was precipitated by his approval of the
recommendation of the National Disaster Risk Reduction and Management Council
(NDRRMC) to place Boracay under a state of calamity. By giving his imprimatur, it
is clear that the President merely exercised his power of control over the executive
branch.
In any case, respondents assert that the President has residual powers which are
implied from the grant of executive power and which are necessary for him to
comply with his duties under the Constitution as held in the case of Marcos v.
Manglapus.[18]
In sum, respondents emphasize that the issuance of Proclamation No. 475 is within
the ambit of the powers of the President, not contrary to the doctrine of separation
of powers, and in accordance with the mechanism laid out by the Constitution.
Further, respondents dispute petitioners' allegation that Proclamation No. 475

infringes upon the rights to travel and to due process. They emphasize that the
right to travel is not an absolute right. It may be impaired or restricted in the
interest of national security, public safety, or public health. In fact, there are
already several existing laws which serve as statutory limitations to the right to
travel.
Anent the alleged violation of the right to due process, respondents challenge
petitioners' claim that they were deprived of their livelihood without due process.
Respondents call attention to the fact that Zabal as sandcastle maker and
Jacosalem as driver are freelancers and thus belong to the informal economy
sector. This means that their source of livelihood is never guaranteed and is
susceptible to changes in regulations and the over-all business climate. In any case,
petitioners' contentions must yield to the State's exercise of police power. As held
in Ermita-Malate Hotel & Motel Operators Association, Inc. v. The Hon. City Mayor
of Manila,[19] the mere fact that some individuals in the community may be deprived
of their present business or of a particular mode of living cannot prevent the
exercise of the police power of the State. Indeed, to respondents, private interests
should yield to the reasonable prerogatives of the State for the public good and
welfare, which precisely are the primary objectives of the government measure
herein questioned
Lastly, respondents insist that Proclamation No. 475 does not unduly transgress
upon the local autonomy of the LGUs concerned. Under RA 10121, it is actually the
Local Disaster Risk Reduction Management Council concerned which, subject to
several criteria, is tasked to take the lead in preparing for, responding to, and
recovering from the effects of any disaster when a state of calamity is declared. In
any case, the devolution of powers upon LGUs pursuant to the constitutional
mandate of ensuring their autonomy does not mean that the State can no longer
interfere in their affairs. This is especially true in this case since Boracay's
environmental disaster cannot be treated as a localized problem that can be
resolved by the concerned LGUs only. The magnitude and gravity of the problem
require the intervention and assistance of different national government agencies in
coordination with the concerned LGUs.
As a final point, respondents aver that the bottom line of petitioners' lengthy
discourse and constitutional posturing is their intention to re-open Boracay to
tourists and non-residents for the then remainder of the duration of the closure and
thus perpetuate and further aggravate the island's environmental degradation.
Respondents posit that this is unacceptable since Boracay cannot be sacrificed for
the sake of profit and personal convenience of the few.
Our Ruling
First, we discuss the procedural issues.
President Duterte is dropped as

respondent in this case
As correctly pointed out by respondents, President Duterte must be dropped as

respondent in this case. The Court's pronouncement in Professor David v. President
Macapagal-Arroyo[20] on the non-suability of an incumbent President cannot be any
clearer, viz.:
x x x Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office
of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government.[21]
Accordingly, President Duterte is dropped as respondent in this case.
Propriety of Prohibition and Mandamus
Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as
follows:
SEC. 2. Petition for prohibition. – When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or in excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
xxxx
"Indeed, prohibition is a preventive remedy seeking that a judgment be rendered

directing the defendant to desist from continuing with the commission of an act
perceived to be illegal. As a rule, the proper function of a writ of prohibition is to
prevent the performance of an act which is about to be done. It is not intended to
provide a remedy for acts already accomplished."[22]
Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:
SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
xxxx
"As the quoted provision instructs, mandamus will lie if the tribunal, corporation,
board, officer, or person unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust, or station."[23]
It is upon the above-discussed contexts of prohibition and mandamus that

respondents base their contention of improper recourse. Respondents maintain that
prohibition is not proper in this case because the closure of Boracay is already a fait
accompli. Neither is mandamus appropriate since there is no neglect of duty on
their part as they were precisely performing their duty to protect the environment
when the closure was ordered.
Suffice it to state, however, that the use of prohibition and mandamus is not merely
confined to Rule 65. These extraordinary remedies may be invoked when
constitutional violations or issues are raised. As the Court stated in Spouses
Imbong v. Hon. Ochoa, Jr.:[24]
As far back as Tañada v. Angara, the Court has unequivocally declared

that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials, as there is no other plain, speedy
or adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC, Aldaba v. COMELEC, Magallona v. Ermita, and
countless others. In Tañada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. 'The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld.'
Once a 'controversy as to the application or interpretation of constitutional provision
is raised before this Court, as in the instant case, it becomes a legal issue which the
Court is bound by constitutional mandate to decide. x x x[25] (Citations omitted;
emphasis supplied)
It must be stressed, though, that resort to prohibition and mandamus on the basis
of alleged constitutional violations is not without limitations. After all, this Court
does not have unrestrained authority to rule on just about any and every claim of
constitutional violation.[26] The petition must be subjected to the four exacting
requisites for the exercise of the power of judicial review, viz.: (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case.[27] Hence, it is not
enough that this petition mounts a constitutional challenge against Proclamation
No. 475. It is likewise necessary that it meets the aforementioned requisites before
the Court sustains the propriety of the recourse.
Existence of Requisites for Judicial Review
In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,[28] an actual case or

controversy was characterized as a "case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. The power does not extend to hypothetical
questions since any attempt at abstraction could only lead to dialectics and barren
legal question and to sterile conclusions unrelated to actualities."[29]
The existence of an actual controversy in this case is evident. President Duterte

issued Proclamation No. 475 on April 26, 2018 and, pursuant thereto, Boracay was
temporarily closed the same day. Entry of non-residents and tourists to the island
was not allowed until October 25, 2018. Certainly, the implementation of the
proclamation has rendered legitimate the concern of petitioners that constitutional
rights may have possibly been breached by this governmental measure. It bears to
state that when coupled with sufficient facts, "reasonable certainty of the
occurrence of a perceived threat to any constitutional interest suffices to provide a
basis for mounting a constitutional challenge".[30] And while it may be argued that
the reopening of Boracay has seemingly rendered moot and academic questions
relating to the ban of tourists and non-residents into the island, abstention from
judicial review is precluded by such possibility of constitutional violation and also by
the exceptional character of the situation, the paramount public interest involved,
and the fact that the case is capable of repetition.[31]
As to legal standing, petitioners assert that they were directly injured since their
right to travel and, their right to work and earn a living which thrives solely on
tourist arrivals, were affected by the closure. They likewise want to convince the
Court that the issues here are of transcendental importance since according to
them, the resolution of the same will have far-reaching consequences upon all
persons living and working in Boracay; upon the Province of Aklan which is heavily
reliant on the island's tourism industry; and upon the whole country considering
that fundamental constitutional rights were allegedly breached.
"Legal standing or locus standi is a party's personal and substantial interest in a

case such that he has sustained or will sustain direct injury as a result of the
governmental act being challenged. It calls for more than just a generalized
grievance. The term 'interest' means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest."[32] There must be a present substantial
interest and not a mere expectancy or a future, contingent, subordinate, or
consequential interest.[33]
In Galicto v. Aquino III,[34] the therein petitioner, Jelbert B. Galicto (Galicto)

questioned the constitutionality of Executive Order No. 7 (EO7) issued by President
Benigno Simeon C. Aquino III, which ordered, among others, a moratorium on the
increases in the salaries and other forms of compensation of all government-
owned-and-controlled corporations (GOCCs) and government financial institutions.
The Court held that Galicto, an employee of the GOCC Philhealth, has no legal
standing to assail EO7 for his failure to demonstrate that he has a personal stake or
material interest in the outcome of the case. His interest, if any, was speculative
and based on a mere expectancy. Future increases in his salaries and other benefits
were contingent events or expectancies to which he has no vested rights. Hence, he
possessed no locus standi to question the curtailment thereof.
Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver. The

nature of their livelihood is one wherein earnings are not guaranteed. As correctly
pointed out by respondents, their earnings are not fixed and may vary depending
on the business climate in that while they can earn much on peak seasons, it is also
possible for them not to earn anything on lean seasons, especially when the rainy
days set in. Zabal and Jacosalem could not have been oblivious to this kind of
situation, they having been in the practice of their trade for a considerable length of
time. Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere
projected earnings which are in no way guaranteed, and are sheer expectancies
characterized as contingent, subordinate, or consequential interest, just like
in Galicto. Concomitantly, an assertion of direct injury on the basis of loss of
income does not clothe Zabal and Jacosalem with legal standing.
As to Bandiola, the petition is bereft of any allegation as to his substantial interest
in the case and as to how he sustained direct injury as a result of the issuance of
Proclamation No. 475. While the allegation that he is a non-resident who
occasionally goes to Boracay for business and pleasure may suggest that he is
claiming direct injury on the premise that his right to travel was affected by the
proclamation, the petition fails to expressly provide specifics as to how. "It has
been held that a party who assails the constitutionality of a statute must have a
direct and personal interest. [He] must show not only that the law or any
governmental act is invalid, but also that [he] sustained or is in immediate danger
of sustaining some direct injury as a result of its enforcement, and not merely that
[he] suffers thereby in some indefinite way. [He] must show that [he] has been or
is about to be denied some right or privilege to which [he] is lawfully entitled or
that [he] is about to be subjected to some burdens or penalties by reason of the
statute or act complained of."[35] Indeed, the petition utterly fails to demonstrate
that Bandiola possesses the requisite legal standing to sue.
Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to
proceed to its ultimate conclusion due to its transcendental importance. After all,
the rule on locus standi is a mere procedural technicality, which the Court, in a long
line of cases involving subjects of transcendental importance, has waived or
relaxed, thus allowing non-traditional plaintiffs such as concerned citizens,
taxpayers, voters and legislators to sue in cases of public interest, albeit they may
not have been personally injured by a government act.[36] More importantly, the
matters raised in this case, involved on one hand, possible violations of the
Constitution and, on the other, the need to rehabilitate the country's prime tourist
destination. Undeniably, these matters affect public interests and therefore are of
transcendental importance to the people. In addition, the situation calls for review
because as stated, it is capable of repetition, the Court taking judicial notice of the
many other places in our country that are suffering from similar environmental
degradation.
As to the two other requirements, their existence is indubitable. It will be recalled

that even before a formal issuance on the closure of Boracay was made by the
government, petitioners already brought the question of the constitutionality of the
then intended closure to this Court. And, a day after Proclamation No. 475 was
issued, they filed a supplemental petition impugning its constitutionality. Clearly,
the filing of the petition and the supplemental petition signals the earliest
opportunity that the constitutionality of the subject government measure could be
raised. There can also be no denying that the very lis mota of this case is the
constitutionality of Proclamation No. 475.
Defense of SLAPP
Suffice it to state that while this case touches on the environmental issues in
Boracay, the ultimate issue for resolution is the constitutionality of Proclamation
No. 475. The procedure in the treatment of a defense of SLAPP provided for under
Rule 6 of the Rules of Procedure for Environmental Cases should not, therefore, be
made to apply.
Now as to the substantive issues.
We first quote in full Proclamation No. 475.
PROCLAMATION No. 475
DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-

MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY,
AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION
WHEREAS, Section 15, Article II of the 1987 Constitution states that the State shall
protect and promote the right to health of the people and instill health
consciousness among them;
WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is the
policy of the State to protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature;
WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the State
shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone;
WHEREAS, an Inter-Agency Task Force, composed of the Department of

Environment and Natural Resources (DENR), the [DILG] and the Department of
Tourism (DOT), was established to evaluate the environmental state of the Island
of Boracay, and investigate possible violations of existing environmental and health
laws, rules and regulations;
WHEREAS, the investigations and validation undertaken revealed that:
a. There is a high concentration of fecal coliform in the Bolabog beaches located

in the eastern side of Boracay Island due to insufficient sewer lines and
illegal discharge of untreated waste water into the beach, with daily tests
conducted from 6 to 10 March 2018 revealing consistent failure in compliance
with acceptable water standards, with an average result of 18,000 most
probable number (MPN)/100ml, exceeding the standard level of 400
MPN/100ml;
b. Most commercial establishments and residences are not connected to the

sewerage infrastructure of Boracay Island, and waste products are not being
disposed through the proper sewerage infrastructures in violation of
environmental law, rules, and regulations;
c. Only 14 out of 51 establishments near the shores of Boracay Island are

compliant with the provision of Republic Act (RA) No. 9275 or the Philippine
Clean Water Act of 2004;
d. Dirty water results in the degradation of the coral reefs and coral cover of
Boracay Island, which declined by approximately 70.5% from 1988 to 2011,
with the highest decrease taking place between 2008 and 2011 during a
period of increased tourist arrivals (approximately 38.4%);
e. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons

per day, while the hauling capacity of the local government is only 30 tons
per day, hence, leaving approximately 85 tons of waste in the Island daily;
f. The natural habitats of Puka shells, nesting grounds of marine turtles, and
roosting grounds of flying foxes or fruit bats have been damaged and/or
destroyed; and
g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to illegal
encroachment of structures, including 937 identified illegal structures
constructed on forestlands and wetlands, as well as 102 illegal structures
constructed on areas already classified as easements, and the disappearance
of the wetlands, which acts as natural catchments, enhances flooding in the
area;
WHEREAS, the findings of the Department of Science and Technology (DOST)

reveal that beach erosion is prevalent in Boracay Island, particularly along the West
Beach, where as much as 40 meters of erosion has taken place in the past 20 years
from 1993 to 2003, due to storms, extraction of sand along the beach to construct
properties and structures along the foreshore, and discharge of waste water near
the shore causing degradation of coral reefs and seagrass meadows that supply the
beach with sediments and serve as buffer to wave action;
WHEREAS, the DOST also reports that based on the 2010-2015 Coastal Ecosystem
Conservation and Adaptive Management Study of the Japan International
Cooperation Agency, direct discharge of waste water near the shore has resulted in
the frequent algal bloom and coral deterioration, which may reduce the source of
sand and cause erosion;
WHEREAS, the data from the Region VI - Western Visayas Regional Disaster Risk
Reduction and Management Council shows that the number of tourists in the island
in a day amounts to 18,082, and the tourist arrival increased by more than 160%
from 2012 to 2017;
WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and waste
management system, and environmental violations of establishments aggravate the
environmental degradation and destroy the ecological balance of the Island of
Boracay, resulting in major damage to property and natural resources, as well as
the disruption of the normal way of life of the people therein;
WHEREAS, it is necessary to implement urgent measures to address the

abovementioned human-induced hazards, to protect and promote the health and
well-being of its residents, workers and tourists, and to rehabilitate the Island in
order to ensure the sustainability of the area and prevent further degradation of its
rich ecosystem;
WHEREAS, RA No. 9275 provides that the DENR shall designate water bodies, or
portions thereof, where specific pollutants from either natural or man-made source
have already exceeded water quality guidelines as non-attainment areas for the
exceeded pollutants and shall prepare and implement a program that will not allow
new sources of exceeded water pollutant in non-attainment areas without a
corresponding reduction in discharges from existing sources;
WHEREAS, RA No. 9275 also mandates the DENR, in coordination with other
concerned agencies and the private sectors, to take such measures as may be
necessary to upgrade the quality of such water in non-attainment areas to meet the
standards under which it has been classified, and the local government units to
prepare and implement contingency plans and other measures including relocation,
whenever necessary, for the protection of health and welfare of the residents within
potentially affected areas;
WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay into
377.68 hectares of reserved forest land for protection purposes and 628.96
hectares of agricultural land as alienable and disposable land;
WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent

jurisprudence, whereby all lands not privately owned belong to the State, the entire
island of Boracay is state-owned, except for lands already covered by existing valid
titles;
WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction

and Management Act of 2010, the National Disaster Risk Reduction and
Management Council has recommended the declaration of a State of Calamity in
the Island of Boracay and the temporary closure of the Island as a tourist
destination to ensure public safety and public health, and to assist the government
in its expeditious rehabilitation, as well as in addressing the evolving socio-
economic needs of affected communities;
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by

virtue of the powers vested in me by the Constitution and existing laws, do hereby
declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the
temporary closure of the Island as a tourist destination for six (6) months starting
26 April 2018, or until 25 October 2018, is hereby ordered subject to applicable
laws, rules, regulations and jurisprudence.
Concerned government agencies shall, as may be necessary or appropriate,

undertake the remedial measures during a State of Calamity as provided in RA No.
10121 and other applicable laws, rules and regulations, such as control of the prices
of basic goods and commodities for the affected areas, employment of negotiated
procurement and utilization of appropriate funds, including the National Disaster
Risk Reduction and Management Fund, for relief and rehabilitation efforts in the
area. All departments and other concerned government agencies are also hereby
directed to coordinate with, and provide or augment the basic services and facilities
of affected local government units, if necessary.
The State of Calamity in the Island of Boracay shall remain in force and effect until
lifted by the President, notwithstanding the lapse of the six-month closure period.
All departments, agencies and offices, including government-owned or controlled

corporations and affected local government units are hereby directed to implement
and execute the abovementioned closure and the appropriate rehabilitation works,
in accordance with pertinent operational plans and directives, including the Boracay
Action Plan.
The Philippine National Police, Philippine Coast Guard and other law enforcement
agencies, with the support of the Armed Forces of the Philippines, are hereby
directed to act with restraint and within the bounds of the law in the strict
implementation of the closure of the Island and ensuring peace and order in the
area.
The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist
will be allowed entry to the island of Boracay until such time that the closure has
been lifted by the President.
All tourists, residents and establishment owners in the area are also urged to act
within the bounds of the law and to comply with the directives herein provided for
the rehabilitation and restoration of the ecological balance of the Island which will
be for the benefit of all concerned.
It must be noted at the outset that petitioners failed to present and establish the
factual bases of their arguments because they went directly to this Court. In ruling
on the substantive issues in this case, the Court is, thus, constrained to rely on,
and uphold the factual bases, which prompted the issuance of the challenged
proclamation, as asserted by respondents. Besides, executive determinations, such
as said factual bases, are generally final on this Court.[37]
The Court observes that the meat of petitioners' constitutional challenge on

Proclamation No. 475 is the right to travel.
Clearly then, the one crucial question that needs to be preliminarily answered is
- does Proclamation No. 475 constitute an impairment on the right to travel?
The Court answers in the negative.
Proclamation No. 475 does not pose an

actual impairment on the right to travel
Petitioners claim that Proclamation No. 475 impairs the right to travel based on the
following provisions:
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by

virtue of the powers vested in me by the Constitution and existing laws, do hereby
declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the
temporary closure of the Island as a tourist destination for six (6) months
starting 26 April 2018, or until 25 October 2018, is hereby ordered subject
to applicable laws, rules, regulations and jurisprudence.
xxxx
The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist
will be allowed entry to the island of Boracay until such time that the closure
has been lifted by the President.
xxxx
The activities proposed to be undertaken to rehabilitate Boracay involved

inspection, testing, demolition, relocation, and construction. These could not have
been implemented freely and smoothly with tourists coming in and out of the island
not only because of the possible disruption that they may cause to the works being
undertaken, but primarily because their safety and convenience might be
compromised. Also, the contaminated waters in the island were not just confined to
a small manageable area. The excessive water pollutants were all over Bolabog
beach and the numerous illegal drainpipes connected to and discharging
wastewater over it originate from different parts of the island. Indeed, the activities
occasioned by the necessary digging of these pipes and the isolation of the
contaminated beach waters to give way to treatment could not be done in the
presence of tourists. Aside from the dangers that these contaminated waters pose,
hotels, inns, and other accommodations may not be available as they would all be
inspected and checked to determine their compliance with environmental laws.
Moreover, it bears to state that a piece-meal closure of portions of the island would
not suffice since as mentioned, illegal drainpipes extend to the beach from various
parts of Boracay. Also, most areas in the island needed major structural
rectifications because of numerous resorts and tourism facilities which lie along
easement areas, illegally reclaimed wetlands, and of forested areas that were
illegally cleared for construction purposes. Hence, the need to close the island in its
entirety and ban tourists therefrom.
In fine, this case does not actually involve the right to travel in its essential sense
contrary to what petitioners want to portray. Any bearing that Proclamation No. 475
may have on the right to travel is merely corollary to the closure of Boracay and
the ban of tourists and non-residents therefrom which were necessary incidents of
the island's rehabilitation. There is certainly no showing that Proclamation No. 475
deliberately meant to impair the right to travel. The questioned proclamation is
clearly focused on its purpose of rehabilitating Boracay and any intention to directly
restrict the right cannot, in any manner, be deduced from its import. This is
contrary to the import of several laws recognized as constituting an impairment on
the right to travel which directly impose restriction on the right, viz.:
[1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law
restricts the right travel of an individual charged with the crime of terrorism even
though such person is out on bail.
[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the
Secretary of Foreign Affairs or his authorized consular officer may refuse the
issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.
[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the

provisions thereof, the Bureau of Immigration, in order to manage migration and
curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011,
allowing its Travel Control and Enforcement Unit to 'offload passengers with
fraudulent travel documents, doubtful purpose of travel, including possible victims
of human trafficking' from our ports.
[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as
amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue deployment permit[s] to a
specific country that effectively prevents our migrant workers to enter such
country.
[5] The Act on Violence Against Women and Children or R.A. No. 9262. The law
restricts movement of an individual against whom the protection order is intended.
[6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the
Inter-Country Adoption Board may issue rules restrictive of an adoptee's right to
travel 'to protect the Filipino child from abuse, exploitation, trafficking and/or sale
or any other practice in connection with adoption which is harmful, detrimental, or
prejudicial to the child.'[38]
In Philippine Association of Service Exporters, Inc. v. Hon. Drilon,[39] the Court held
that the consequence on the right to travel of the deployment ban implemented by
virtue of Department Order No. 1, Series of 1998 of the Department of Labor and
Employment does not impair the right.
Also significant to note is that the closure of Boracay was only temporary
considering the categorical pronouncement that it was only for a definite period of
six months.
Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not
direct but merely consequential; and, the same is only for a reasonably short period
of time or merely temporary.
In this light, a discussion on whether President Duterte exercised a power
legislative in nature loses its significance. Since Proclamation No. 475 does not
actually impose a restriction on the right to travel, its issuance did not result to any
substantial alteration of the relationship between the State and the people. The
proclamation is therefore not a law and conversely, the President did not usurp the
law-making power of the legislature.
For obvious reason, there is likewise no more need to determine the existence in
this case of the requirements for a valid impairment of the right to travel.
Even if it is otherwise, Proclamation No.

475 must be upheld for being in the
nature of a valid police power measure
Police power, amongst the three fundamental and inherent powers of the state, is
the most pervasive and comprehensive.[40] "It has been defined as the 'state
authority to enact legislation that may interfere with personal liberty or property in
order to promote general welfare."[41] "As defined, it consists of (1) imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not
capable of exact definition but has been purposely, veiled in general terms to
underscore its all-comprehensive embrace."[42] The police power "finds no specific
Constitutional grant for the plain reason that it does not owe its origin to the
Charter"[43] since "it is inborn in the very fact of statehood and sovereignty."[44] It is
said to be the "inherent and plenary power of the State which enables it to prohibit
all things hurtful to the comfort, safety, and welfare of the society."[45] Thus, police
power constitutes an implied limitation on the Bill of Rights.[46] After all, "the Bill of
Rights itself does not purport to be an absolute guaranty of individual rights and
liberties. 'Even liberty itself, the greatest of all rights, is not unrestricted license to
act according to one's will.' It is subject to the far more overriding demands and
requirements of the greater number."[47]
"Expansive and extensive as its reach may be, police power is not a force without
limits."[48] "It has to be exercised within bounds – lawful ends through lawful
means, i.e., that the interests of the public generally, as distinguished from that of
a particular class, require its exercise, and that the means employed are reasonably
necessary for the accomplishment of the purpose while not being unduly oppressive
upon individuals."[49]
That the assailed governmental measure in this case is within the scope of police
power cannot be disputed. Verily, the statutes[50] from which the said measure
draws authority and the constitutional provisions[51] which serve as its framework
are primarily concerned with the environment and health, safety, and well-being of
the people, the promotion and securing of which are clearly legitimate objectives of
governmental efforts and regulations. The motivating factor in the issuance of
Proclamation No. 475 is without a doubt the interest of the public in general. The
only question now is whether the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
The pressing need to implement urgent measures to rehabilitate Boracay is beyond
cavil from the factual milieu that precipitated the President's issuance of
Proclamation No. 475. This necessity is even made more critical and insistent by
what the Court said in Oposa v. Hon. Factoran, Jr.[52] in regard the rights to a
balanced and healthful ecology and to health, which rights are likewise integral
concerns in this case. Oposa warned that unless the rights to a balanced and
healthful ecology and to health are given continuing importance and the State
assumes its solemn obligation to preserve and protect them, the time will come
that nothing will be left not only for this generation but for the generations to come
as well.[53] It further taught that the right to a balanced and healthful ecology
carries with it the correlative duty to refrain from impairing the environment.[54]
Against the foregoing backdrop, we now pose this question: Was the temporary
closure of Boracay as a tourist destination for six months reasonably necessary
under the circumstances? The answer is in the affirmative.
As earlier noted, one of the root causes of the problems that beset Boracay was
tourist influx. Tourist arrivals in the island were clearly far more than Boracay could
handle. As early as 2007, the DENR had already determined this as the major cause
of the catastrophic depletion of the island's biodiversity.[55] Also part of the equation
is the lack of commitment to effectively enforce pertinent environmental laws.
Unfortunately, direct action on these matters has been so elusive that the situation
reached a critical level. Hence, by then, only bold and sweeping steps were required
by the situation.
Certainly, the closure of Boracay, albeit temporarily, gave the island its much
needed breather, and likewise afforded the government the necessary leeway in its
rehabilitation program. Note that apart from review, evaluation and amendment of
relevant policies, the bulk of the rehabilitation activities involved inspection, testing,
demolition, relocation, and construction. These works could not have easily been
done with tourists present. The rehabilitation works in the first place were not
simple, superficial or mere cosmetic but rather quite complicated, major, and
permanent in character as they were intended to serve as long-term solutions to
the problem.[56] Also, time is of the essence. Every precious moment lost is to the
detriment of Boracay's environment and of the health and well-being of the people
thereat. Hence, any unnecessary distraction or disruption is most unwelcome.
Moreover, as part of the rehabilitation efforts, operations of establishments in
Boracay had to be halted in the course thereof since majority, if not all of them,
need to comply with environmental and regulatory requirements in order to align
themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was undergoing
necessary rehabilitation would therefore be pointless as no establishment would
cater to their accommodation and other needs. Besides, it could not be said that
Boracay, at the time of the issuance of the questioned proclamation, was in such a
physical state that would meet its purpose of being a tourist destination. For one,
its beach waters could not be said to be totally safe for swimming. In any case, the
closure, to emphasize, was only for a definite period of six months, i.e., from April
26, 2018 to October 25, 2018. To the mind of the Court, this period constitutes a
reasonable time frame, if not to complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the temporary closure of
Boracay, although unprecedented and radical as it may seem, was reasonably
necessary and not unduly oppressive under the circumstances. It was the most
practical and realistic means of ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and expeditious way. Absent a clear
showing of grave abuse of discretion, unreasonableness, arbitrariness or
oppressiveness, the Court will not disturb the executive determination that the
closure of Boracay was necessitated by the foregoing circumstances. As earlier
noted, petitioners totally failed to counter the factual bases of, and justification for
the challenged executive action.
Undoubtedly, Proclamation No. 475 is a valid police power measure. To repeat,

police power constitutes an implied limitation to the Bill of Rights, and that even
liberty itself, the greatest of all rights, is subject to the far more overriding
demands and requirements of the greater number.
For the above reasons, petitioners' constitutional challenge on Proclamation No. 475
anchored on their perceived impairment of the right to travel must fail.
Petitioners have no vested rights on their

sources of income as to be entitled to
due process
Petitioners argue that Proclamation No. 475 impinges on their constitutional right to
due process since they were deprived of the corollary right to work and earn a
living by reason of the issuance thereof.
Concededly, "[a] profession, trade or calling is a property right within the meaning
of our constitutional guarantees. One cannot be deprived of the right to work and
the right to make a living because these rights are property rights, the arbitrary
and unwarranted deprivation of which normally constitutes an actionable
wrong."[57] Under this premise, petitioners claim that they were deprived of due
process when their right to work and earn a living was taken away from them when
Boracay was ordered closed as a tourist destination. It must be stressed, though,
that "when the conditions so demand as determined by the legislature, property
rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare."[58] Otherwise, police
power as an attribute to promote the common good would be diluted considerably if
on the mere plea of petitioners that they will suffer loss of earnings and capital,
government measures implemented pursuant to the said state power would be
stymied or invalidated.[59]
In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have
already acquired vested rights to their sources of income in Boracay. As heretofore
mentioned, they are part of the informal sector of the economy where earnings are
not guaranteed. In Southern Luzon Drug Corporation v. Department of Social
Welfare and Development,[60] the Court elucidated on vested rights, as follows:
x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively, they

are depicted as follows:
Rights which have so completely and definitely accrued to or settled in a person

that they are not subject to be defeated or cancelled by the act of any other private
person, and which it is right and equitable that the government should recognize
and protect, as being lawful in themselves, and settled according to the then
current rules of law, and of which the individual could not be deprived arbitrarily
without injustice, or of which he could not justly be deprived otherwise than by the
established methods of procedure and for the public welfare. x x x A right is not
'vested' unless it is more than a mere expectancy based on the anticipated
continuance of present laws; it must be an established interest in property, not
open to doubt. x x x To be vested in its accurate legal sense, a right must be
complete and consummated, and one of which the person to whom it belongs
cannot be divested without his consent. x x x[61]
Here, Zabal and Jacosalem's asserted right to whatever they may earn from tourist
arrivals in Boracay is merely an inchoate right or one that has not fully developed
and therefore cannot be claimed as one's own. An inchoate right is a mere
expectation, which may or may not come into fruition. "It is contingent as it only
comes 'into existence on an event or condition which may not happen or be
performed until some other event may prevent their vesting."'[62] Clearly, said
petitioners' earnings are contingent in that, even assuming tourists are still allowed
in the island, they will still earn nothing if no one avails of their services. Certainly,
they do not possess any vested right on their sources of income, and under this
context, their claim of lack of due process collapses. To stress, only rights which
have completely and definitely accrued and settled are entitled protection under the
due process clause.
Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to
work and earn a living. They are free to work and practice their trade elsewhere.
That they were not able to do so in Boracay, at least for the duration of its closure,
is a necessary consequence of the police power measure to close and rehabilitate
the island.
Also clearly untenable is petitioners' claim that they were being made to suffer the
consequences of the environmental transgressions of others. It must be stressed
that the temporary closure of Boracay as a tourist destination and the consequent
ban of tourists into the island were not meant to serve as penalty to violators of
environmental laws. The temporary closure does not erase the environmental
violations committed; hence, the liabilities of the violators remain and only they
alone shall suffer the same. The temporary inconvenience that petitioners or other
persons may have experienced or are experiencing is but the consequence of the
police measure intended to attain a much higher purpose, that is, to protect the
environment, the health of the people, and the general welfare. Indeed, any and all
persons may be burdened by measures intended for the common good or to serve
some important governmental interest.[63]
No intrusion into the autonomy of the

concerned LGUs
The alleged intrusion of the President into the autonomy of the LGUs concerned is
likewise too trivial to merit this Court's consideration. Contrary to petitioners'
argument, RA 10121 recognizes and even puts a premium on the role of the LGUs
in disaster risk reduction and management as shown by the fact that a number of
the legislative policies set out in the subject statute recognize and aim to
strengthen the powers decentralized to LGUs.[64] This role is echoed in the
questioned proclamation.
The fact that other government agencies are involved in the rehabilitation works
does not create the inference that the powers and functions of the LGUs are being
encroached upon. The respective roles of each government agency are particularly
defined and enumerated in Executive Order No. 53[65] and all are in accordance with
their respective mandates. Also, the situation in Boracay can in no wise be
characterized or labelled as a mere local issue as to leave its rehabilitation to local
actors. Boracay is a prime tourist destination which caters to both local and foreign
tourists. Any issue thereat has corresponding effects, direct or otherwise, at a
national level. This, for one, reasonably takes the issues therein from a level that
concerns only the local officials. At any rate, notice must be taken of the fact that
even if the concerned LGUs have long been fully aware of the problems afflicting
Boracay, they failed to effectively remedy it. Yet still, in recognition of their
mandated roles and involvement in the rehabilitation of Boracay, Proclamation No.
475 directed “[a]ll departments, agencies and offices, including government-owned
or controlled corporations and affected local government units x x x to
implement and execute x x x the closure [of Boracay] and the appropriate
rehabilitation works, in accordance with pertinent operational plans and directives,
including the Boracay Action Plan. "
As a final note, the Court in Metropolitan Manila Development Authority v.

Concerned Residents of Manila Bay,[66] called out the concerned government
agencies for their cavalier attitude towards solving environmental destruction
despite hard evidence and clear signs of climate crisis. It equated the failure to put
environmental protection on a plane of high national priority to the then lacking
level of bureaucratic efficiency and commitment. Hence, the Court therein took it
upon itself to put the heads of concerned department-agencies and the bureaus and
offices under them on continuing notice and to enjoin them to perform their
mandates and duties towards the clean-up and/or restoration of Manila Bay,
through a "continuing mandamus." It likewise took the occasion to state, viz.:
In the light of the ongoing environmental degradation, the Court wishes to

emphasize the extreme necessity for all concerned executive departments and
agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables
for the performance and completion of the tasks, some of them as defined for them
by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground and as a historical
landmark cannot be over-emphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the plants and sea life that once
thrived in its blue waters. But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these tasks and take responsibility.
This means that the State, through [the concerned department-agencies], has to
take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. [The concerned
department-agencies] must transcend their limitations, real or imaginary, and
buckle down to work before the problem at hand becomes unmanageable. Thus, we
must reiterate that different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic functions in cleaning up
and rehabilitating the Manila Bay. x x x[67]
There is an obvious similarity in Metropolitan Manila Development Authority and in

the present case in that both involve the restoration of key areas in the country
which were once glowing with radiance and vitality but are now in shambles due to
abuses and exploitation. What sets these two cases apart is that in the former,
those mandated to act still needed to be enjoined in order to act. In this case, the
bold and urgent action demanded by the Court in Metropolitan Manila Development
Authority is now in the roll out. Still, the voice of cynicism, naysayers, and
procrastinators heard during times of inaction can still be heard during this time of
full action – demonstrating a classic case of "damn if you do, damn if you don't".
Thus, in order for the now staunch commitment to save the environment not to
fade, it behooves upon the courts to be extra cautious in invalidating government
measures meant towards addressing environmental degradation. Absent any clear
showing of constitutional infirmity, arbitrariness or grave abuse of discretion, these
measures must be upheld and even lauded and promoted. After all, not much time
is left for us to remedy the present environmental situation. To borrow from Oposa,
unless the State undertakes its solemn obligation to preserve the rights to a
balanced and healthful ecology and advance the health of the people, "the day
would not be too far when all else would be lost not only for the present generation,
but also for those to come – generations which stand to inherit nothing but parched
earth incapable of sustaining life."[68]
All told, the Court sustains the constitutionality and validity of Proclamation No.
475.
WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.
SO ORDERED.
August 8, 2017
G.R. No. 225442
SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM,

JOHN ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, and
CLARISSA JOYCE VILLEGAS, minor, for herself and as represented by her father, JULIAN
VILLEGAS, JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as
represented by MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR
JOHN REY TIANGCO,, Respondents,
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued
by the local governments of Quezon City, Manila, and Navotas. The petition prays that a temporary
restraining order (TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada, and John
Rey Tiangco, as Mayors of their respective local governments, to prohibit, refrain, and desist from
implementing and enforcing these issuances, pending resolution of this case, and eventually,
declare the City of Manila's ordinance as ultra vires for being contrary to Republic Act No. (RA)
9344,2 or the "Juvenile Justice and Welfare Act," as amended, and all curfew ordinances as
unconstitutional for violating the constitutional right of minors to travel, as well as the right of parents
to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for
minors, several local governments in Metro Manila started to strictly implement their curfew
ordinances on minors through police operations which were publicly known as part of "Oplan Rody."3
Among those local governments that implemented curfew ordinances were respondents: (a)
Navotas City, through Pambayang Ordinansa Blg. 99- 02,4 dated August 26, 1999, entitled
"Nagtatakdang 'Curfew' ng mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa
Bayan ng Navotas, Kalakhang Maynila," as amended by Pambayang Ordinansa Blg. 2002-
13,5 dated June 6, 2002 (Navotas Ordinance); (b) City of Manila, through Ordinance No.
80466 entitled "An Ordinance Declaring the Hours from 10:00 P.M. to 4:00 A.M. of the Following Day
as 'Barangay Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age; Prescribing
Penalties Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c)
Quezon City, through Ordinance No. SP- 2301,7 Series of 2014, entitled "An Ordinance Setting for a
[sic] Disciplinary Hours in Quezon City for Minors from 10:00 P.M. to 5:00 A.M., Providing Penalties
for Parent/Guardian, for Violation Thereof and for Other Purposes" dated July 31, 2014 (Quezon City
Ordinance; collectively, Curfew Ordinances).8
Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an

association of young adults and minors that aims to forward a free and just society, in particular the
protection of the rights and welfare of the youth and minors10 - filed this present petition, arguing that
the Curfew Ordinances are unconstitutional because they: (a) result in arbitrary and discriminatory
enforcement, and thus, fall under the void for vagueness doctrine; (b) suffer from overbreadth by
proscribing or impairing legitimate activities of minors during curfew hours; (c) deprive minors of the
right to liberty and the right to travel without substantive due process; and (d) deprive parents of their
natural and primary right in rearing the youth without substantive due process.11 In addition,
petitioners assert that the Manila Ordinance contravenes RA 9344, as amended by RA 10630.12
More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and
discriminatory enforcement as there are no clear provisions or detailed standards on how law
enforcers should apprehend and properly determine the age of the alleged curfew violators.13 They
further argue that the law enforcer's apprehension depends only on his physical assessment, and,
thus, subjective and based only on the law enforcer's visual assessment of the alleged curfew
violator.14
While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities
exempted from the operation of the imposed curfews, i.e., exemption of working students or students
with evening class, they contend that the lists of exemptions do not cover the range and breadth of
legitimate activities or reasons as to why minors would be out at night, and, hence, proscribe or
impair the legitimate activities of minors during curfew hours.15
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive
minors of the right to liberty and the right to travel without substantive due process;16 and (b) fail to
pass the strict scrutiny test, for not being narrowly tailored and for employing means that bear no
reasonable relation to their purpose.17 They argue that the prohibition of minors on streets during
curfew hours will not per se protect and promote the social and moral welfare of children of the
community.18
Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof,
contravenes Section 57-A20 of RA 9344, as amended, given that the cited curfew provision imposes
on minors the penalties of imprisonment, reprimand, and admonition. They contend that the
imposition of penalties contravenes RA 9344's express command that no penalty shall be imposed
on minors for curfew violations.21
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the
parents' prerogative to impose them in the exercise of their natural and primary right in the rearing of
the youth, and that even if a compelling interest exists, less restrictive means are available to
achieve the same. In this regard, they suggest massive street lighting programs, installation of CCTV
s (closed-circuit televisions) in public streets, and regular visible patrols by law enforcers as other
viable means of protecting children and preventing crimes at night. They further opine that the
government can impose more reasonable sanctions, i.e., mandatory parental counseling and
education seminars informing the parents of the reasons behind the curfew, and that imprisonment
is too harsh a penalty for parents who allowed their children to be out during curfew hours.22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances
are unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the
dismissal of the petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of
the Rules of Court to assail the constitutionality of the Curfew Ordinances; (b) petitioners' direct
resort to the Court, contrary to the hierarchy of courts doctrine; and (c) the lack of actual controversy
and standing to warrant judicial review.23
A. Propriety of the Petition for

Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to
settle actual controversies involving rights which are legally demandable and enforceable," but also
"to determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government."24 Section 1, Article VIII
of the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the concept of judicial power, which
up to then was confined to its traditional ambit of settling actual controversies involving rights that
were legally demandable and enforceable."25
In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court
"are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government may be determined under the
Constitution."27 It was explained that "[w]ith respect to the Court, x x x the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may
be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions, but also to set right, undo[,] and
restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by
any branch or instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized by the text of the
second paragraph of Section 1, [Article VIII of the 1987 Constitution cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers
Association, Inc.,29 it was expounded that "[ m ]eanwhile that no specific procedural rule has been
promulgated to enforce [the] 'expanded' constitutional definition of judicial power and because of the
commonality of 'grave abuse of discretion' as a ground for review under Rule 65 and the courts'
expanded jurisdiction, the Supreme Court - based on its power to relax its rules - allowed Rule 65 to
be used as the medium for petitions invoking the courts' expanded jurisdiction[. ]"30
In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of
Quezon City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground
that these ordinances violate the Constitution, specifically, the provisions pertaining to the right to
travel of minors, and the right of parents to rear their children. They also claim that the Manila
Ordinance, by imposing penalties against minors, conflicts with RA 9344, as amended, which
prohibits the imposition of penalties on minors for status offenses. It has been held that "[t]here is
grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal
bias. "31 In light of the foregoing, petitioners correctly availed of the remedies of certiorari and
prohibition, although these governmental actions were not made pursuant to any judicial or quasi-
judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of
legislative and executive enactments, the next question to be resolved is whether or not petitioners'
direct resort to this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher court. The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus. While this jurisdiction is shared with the Court of Appeals [(CA)] and the [Regional Trial
Courts], a direct invocation of this Court's jurisdiction is allowed when there are special and
important reasons therefor, clearly and especially set out in the petition[.]"32 This Court is
tasked to resolve "the issue of constitutionality of a law or regulation at the first instance [if it]
is of paramount importance and immediately affects the social, economic, and moral well-
being of the people,"33 as in this case. Hence, petitioners' direct resort to the Court is justified.
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the very lis mota of the case."34 In this case, respondents assail the existence of the first two (2)
requisites.
1. Actual Case or Controversy.
"Basic in the exercise of judicial power - whether under the traditional or in the expanded setting - is
the presence of an actual case or controversy."35 "[A]n actual case or controversy is one which
'involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute.' In other
words, 'there must be a contrariety of legal rights that can be interpreted and enforced on the
basis of existing law and jurisprudence."36 According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by
merely requiring a prima facie showing of grave abuse of discretion in the assailed
governmental act."37
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result of the
act complained of."38
Applying these precepts, this Court finds that there exists an actual justiciable controversy in this
case given the evident clash of the parties' legal claims, particularly on whether the Curfew
Ordinances impair the minors' and parents' constitutional rights, and whether the Manila Ordinance
goes against the provisions of RA 9344. Based on their asseverations, petitioners have - as will be
gleaned from the substantive discussions below - conveyed a prima facie case of grave abuse of
discretion, which perforce impels this Court to exercise its expanded jurisdiction. The case is
likewise ripe for adjudication, considering that the Curfew Ordinances were being implemented until
the Court issued the TRO39 enjoining their enforcement. The purported threat or incidence of injury is,
therefore, not merely speculative or hypothetical but rather, real and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication. [Petitioners] must show that they have a personal and substantial interest in the
case, such that they have sustained or are in immediate danger of sustaining, some direct
injury as a consequence of the enforcement of the challenged governmental act."40 "' [I]nterest'
in the question involved must be material - an interest that is in issue and will be affected by the
official act- as distinguished from being merely incidental or general."41
"The gist of the question of [legal] standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions. Unless a person is injuriously affected in any of his constitutional rights
by the operation of statute or ordinance, he has no standing."42
As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights,
namely: (1) the right of minors to freely travel within their respective localities; and (2) the primary
right of parents to rear their children. Related to the first is the purported conflict between RA 9344,
as amended, and the penal provisions of the Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to
raise the issue affecting the minor's right to travel,43 because: (a) she was still a minor at the time the
petition was filed before this Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b)
as alleged, she travels from Manila to Quezon City at night after school and is, thus, in imminent
danger of apprehension by virtue of the Curfew Ordinances. On the other hand, petitioners Joanne
Rose Sace Lim, John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos
Reyes (Mark Leo) admitted in the petition that they are all of legal age, and therefore, beyond the
ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances, for which they
could base any direct injury as a consequence thereof.
None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate
the parents' right to rear their children as they have not shown that they stand before this Court as
parent/s and/or guardian/s whose constitutional parental right has been infringed. It should be noted
that Clarissa is represented by her father, Julian Villegas, Jr. (Mr. Villegas), who could have properly
filed the petition for himself for the alleged violation of his parental right. But Mr. Villegas did not
question the Curfew Ordinances based on his primary right as a parent as he only stands as the
representative of his minor child, Clarissa, whose right to travel was supposedly infringed.
As for SPARK, it is an unincorporated association and, consequently, has no legal personality to

bring an action in court.45 Even assuming that it has the capacity to sue, SPARK still has no standing
as it failed to allege that it was authorized by its members who were affected by the Curfew
Ordinances, i.e., the minors, to file this case on their behalf.
Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy.
More particularly, Clarissa has standing only on the issue of the alleged violation of the minors' right
to travel, but not on the alleged violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the
petitioners are concerned, in view of the transcendental importance of the issues involved in this
case. "In a number of cases, this Court has taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the people, the Court
may exercise its sound discretion and take cognizance of the suit. It may do so in spite of the
inability of the petitioners to show that they have been personally injured by the operation of a law or
any other government act."46
This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed
under judicial review. Not only is this Court asked to determine the impact of these issuances on the
right of parents to rear their children and the right of minors to travel, it is also requested to
determine the extent of the State's authority to regulate these rights in the interest of general welfare.
Accordingly, this case is of overarching significance to the public, which, therefore, impels a
relaxation of procedural rules, including, among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect of this case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their
children, this Court must first tackle petitioners' contention that the Curfew Ordinances are void for
vagueness.
In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient
enforcement parameters, which leaves the enforcing authorities with unbridled discretion to carry out
their provisions. They claim that the lack of procedural guidelines in these issuances led to the
questioning of petitioners Ronel and Mark Leo, even though they were already of legal age. They
maintain that the enforcing authorities apprehended the suspected curfew offenders based only on
their physical appearances and, thus, acted arbitrarily. Meanwhile, although they conceded that the
Quezon City Ordinance requires enforcers to determine the age of the child, they submit that
nowhere does the said ordinance require the law enforcers to ask for proof or identification of the
child to show his age.47
The arguments are untenable.

"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application. It
is repugnant to the Constitution in two (2) respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle."48
In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that
they do not properly identify any provision in any of the Curfew Ordinances, which, because of its
vague terminology, fails to provide fair warning and notice to the public of what is prohibited or
required so that one may act accordingly.49 The void for vagueness doctrine is premised on due
process considerations, which are absent from this particular claim. In one case, it was opined
that:
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural
due process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due
process uncertainty" involves cases where the statutory language was so obscure that it failed to
give adequate warning to those subject to its prohibitions as well as to provide proper standards for
adjudication. Such a definition encompasses the vagueness doctrine. This perspective rightly
integrates the vagueness doctrine with the due process clause, a necessary interrelation since there
is no constitutional provision that explicitly bars statutes that are "void-for-vagueness."50
Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities
in the proper apprehension of suspected curfew offenders. They do not assert any confusion as
to what conduct the subject ordinances prohibit or not prohibit but only point to the
ordinances' lack of enforcement guidelines. The mechanisms related to the implementation of
the Curfew Ordinances are, however, matters of policy that are best left for the political branches of
government to resolve. Verily, the objective of curbing unbridled enforcement is not the sole
consideration in a void for vagueness analysis; rather, petitioners must show that this perceived
danger of unbridled enforcement stems from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a particular conduct is prohibited or not prohibited. In this
regard, that ambiguous provision of law contravenes due process because agents of the
government cannot reasonably decipher what conduct the law permits and/or forbids. In Bykofsky v.
Borough of Middletown, 51 it was ratiocinated that:
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on ad hoc and subjective basis, and vague standards result in erratic and arbitrary
application based on individual impressions and personal predilections.52
As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of
the Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor
would be determined. Thus, without any correlation to any vague legal provision, the Curfew
Ordinances cannot be stricken down under the void for vagueness doctrine.
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify
suspected curfew violators. While it is true that the Curfew Ordinances do not explicitly state these
parameters, law enforcement agents are still bound to follow the prescribed measures found in
statutory law when implementing ordinances. Specifically, RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be determined from the child's
birth certificate, baptismal certificate or any other pertinent documents. In the absence of
these documents, age may be based on information from the child himself/herself, testimonies
of other persons, the physical appearance of the child and other relevant evidence. (Emphases
supplied)
This provision should be read in conjunction with · the Curfew Ordinances because RA 10630 (the
law that amended RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to
Section 57-A of RA 9344, as amended by RA 10630,54 minors caught in violation of curfew
ordinances are children at risk and, therefore, covered by its provisions.55 It is a long-standing
principle that "[c]onformity with law is one of the essential requisites for the validity of a
municipal ordinance."56 Hence, by necessary implication, ordinances should be read and
implemented in conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to
be a minor violating the curfew, may therefore prove that he is beyond the application of the Curfew
Ordinances by simply presenting any competent proof of identification establishing their majority
age. In the absence of such proof, the law authorizes enforcement authorities to conduct a visual
assessment of the suspect, which - needless to state - should be done ethically and judiciously
under the circumstances. Should law enforcers disregard these rules, the remedy is to pursue the
appropriate action against the erring enforcing authority, and not to have the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.
B. Right of Parents to Rear their

Children.
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of
their natural and primary right in the rearing of the youth without substantive due process. In this
regard, they assert that this right includes the right to determine whether minors will be required to
go home at a certain time or will be allowed to stay late outdoors. Given that the right to impose
curfews is primarily with parents and not with the State, the latter's interest in imposing curfews
cannot logically be compelling.57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of
parents in the rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral character shall receive
the support of the Government. (Emphasis and underscoring supplied.)
As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for
civic efficiency and the development of their moral character are characterized not only as parental
rights, but also as parental duties. This means that parents are not only given the privilege of
exercising their authority over their children; they are equally obliged to exercise this authority
conscientiously. The duty aspect of this provision is a reflection of the State's independent interest to
ensure that the youth would eventually grow into free, independent, and well-developed citizens of
this nation. For indeed, it is during childhood that minors are prepared for additional obligations to
society. "[T]he duty to prepare the child for these [obligations] must be read to include the
inculcation of moral standards, religious beliefs, and elements of good citizenship."58 "This
affirmative process of teaching, guiding, and inspiring by precept and example is essential to the
growth of young people into mature, socially responsible citizens."59
By history and tradition, "the parental role implies a substantial measure of authority over one's
children."60 In Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the parents' claim to authority in their
own household to direct the rearing of their children is basic in the structure of our society."62 As
in our Constitution, the right and duty of parents to rear their children is not only described as
"natural," but also as "primary." The qualifier "primary" connotes the parents' superior right
over the State in the upbringing of their children.63 The rationale for the State's deference to
parental control over their children was explained by the US Supreme Court in Bellotti v.
Baird (Bellotti),64 as follows:
[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms
of minors. The State commonly protects its youth from adverse governmental action and from their
own immaturity by requiring parental consent to or involvement in important decisions by
minors. But an additional and more important justification for state deference to parental
control over children is that "the child is not [a) mere creature of the State; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations."65 (Emphasis and underscoring supplied)
While parents have the primary role in child-rearing, it should be stressed that "when actions
concerning the child have a relation to the public welfare or the well-being of the child, the
[Sltate may act to promote these legitimate interests."66 Thus, "[i]n cases in which harm to the
physical or mental health of the child or to public safety, peace, order, or welfare is
demonstrated, these legitimate state interests may override the parents' qualified right to
control the upbringing of their children."67
As our Constitution itself provides, the State is mandated to support parents in the exercise of these
rights and duties. State authority is therefore, not exclusive of, but rather, complementary to
parental supervision. In Nery v. Lorenzo,68 this Court acknowledged the State's role as parens
patriae in protecting minors, viz. :
[Where minors are involved, the State acts as parens patriae. To it is cast the duty of
protecting the rights of persons or individual who because of age or incapacity are in an
unfavorable position, vis-a-vis other parties. Unable as they are to take due care of what
concerns them, they have the political community to look after their welfare. This obligation the state
must live up to. It cannot be recreant to such a trust. As was set forth in an opinion of the United
States Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of
every State, x x x."69 (Emphases and underscoring supplied)
As parens patriae, the State has the inherent right and duty to aid parents in the moral
development of their children,70 and, thus, assumes a supporting role for parents to fulfill their
parental obligations. In Bellotti, it was held that "[I]egal restriction on minors, especially those
supportive of the parental role, may be important to the child's chances for the full growth and
maturity that make eventual participation in a free society meaningful and rewarding. Under the
Constitution, the State can properly conclude that parents and others, teachers for example,
who have the primary responsibility for children's well-being are entitled to the support of the
laws designed to aid discharge of that responsibility."71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of
promoting their children's well-being. As will be later discussed at greater length, these ordinances
further compelling State interests (particularly, the promotion of juvenile safety and the prevention of
juvenile crime), which necessarily entail limitations on the primary right of parents to rear their
children. Minors, because of their peculiar vulnerability and lack of experience, are not only more
exposed to potential physical harm by criminal elements that operate during the night; their moral
well-being is likewise imperiled as minor children are prone to making detrimental decisions during
this time.72
At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are
not - whether actually or constructively (as will be later discussed) - accompanied by their parents.
This serves as an explicit recognition of the State's deference to the primary nature of parental
authority and the importance of parents' role in child-rearing. Parents are effectively given unfettered
authority over their children's conduct during curfew hours when they are able to supervise them.
Thus, in all actuality, the only aspect of parenting that the Curfew Ordinances affects is the
parents' prerogative to allow minors to remain in public places without parental
accompaniment during the curfew hours. 73 In this respect, the ordinances neither dictate an
over-all plan of discipline for the parents to apply to their minors nor force parents to
abdicate their authority to influence or control their minors' activities.74 As such, the Curfew
Ordinances only amount to a minimal - albeit reasonable - infringement upon a parent's right to bring
up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend
more time at home. Consequently, this situation provides parents with better opportunities to take a
more active role in their children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the
US court observed that the city government "was entitled to believe x x x that a nocturnal curfew
would promote parental involvement in a child's upbringing. A curfew aids the efforts of parents who
desire to protect their children from the perils of the street but are unable to control the nocturnal
behavior of those children."76 Curfews may also aid the "efforts of parents who prefer their children to
spend time on their studies than on the streets."77 Reason dictates that these realities observed
in Schleifer are no less applicable to our local context. Hence, these are additional reasons which
justify the impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right
to rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to
travel. They claim that the liberty to travel is a fundamental right, which, therefore, necessitates the
application of the strict scrutiny test. Further, they submit that even if there exists a compelling State
interest, such as the prevention of juvenile crime and the protection of minors from crime, there are
other less restrictive means for achieving the government's interest.78 In addition, they posit that the
Curfew Ordinances suffer from overbreadth by proscribing or impairing legitimate activities of minors
during curfew hours.79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that
petitioners have not claimed any transgression of their rights to free speech or any inhibition of
speech-related conduct. In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism
Council(Southern Hemisphere),80 this Court explained that "the application of the overbreadth
doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases,"81 viz.:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a
statute cannot be properly analyzed for being substantially overbroad if the court confines itself only
to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely
"as applied for" so that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an overbroad
law's "very existence may cause others not before the court to refrain from constitutionally protected
speech or expression." An overbreadth ruling is designed to remove that deterrent effect on
the speech of those third parties.82 (Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free
speech claims, the Court, in at least two [(2)] cases, observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First Amendment,83 and that
claims of facial overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words. In Virginia v. Hicks,84 it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not specifically addressed to
speech or speech-related conduct. Attacks on overly broad statutes are justified by the 'transcendent
value to all society of constitutionally protected expression. "'85
In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges
can only be raised on the basis of overbreadth and not on vagueness. Southern
Hemisphere demonstrated how vagueness relates to violations of due process rights, whereas
facial challenges are raised on the basis of overbreadth and limited to the realm of freedom of
expression."87
That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there
being no claimed curtailment of free speech. On the contrary, however, this Court finds proper to
examine the assailed regulations under the strict scrutiny test.
The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III
of the 1987 Constitution, to wit:
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law. (Emphases and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely from the Philippines to other
countries or within the Philippines.89 It is a right embraced within the general concept of
liberty.90 Liberty - a birthright of every person - includes the power of locomotion91 and the right of
citizens to be free to use their faculties in lawful ways and to live and work where they desire or
where they can best pursue the ends of life.92
The right to travel is essential as it enables individuals to access and exercise their other rights, such
as the rights to education, free expression, assembly, association, and religion.93 The inter-relation of
the right to travel with other fundamental rights was briefly rationalized in City of Maquoketa v.
Russell,94 as follows:
Whenever the First Amendment rights of freedom of religion, speech, assembly, and association
require one to move about, such movement must necessarily be protected under the First
Amendment.
Restricting movement in those circumstances to the extent that First Amendment Rights
cannot be exercised without violating the law is equivalent to a denial of those rights. One
court has eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by the First Amendment to
freedom of travel and movement. If, for any reason, people cannot walk or drive to their church,
their freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting
hall, freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the
sidewalks or drive the streets of a community, opportunities for freedom of speech are sharply
limited. Freedom of movement is inextricably involved with freedoms set forth in the First
Amendment. (Emphases supplied)
Nevertheless, grave and overriding considerations of public interest justify restrictions even if made
against fundamental rights. Specifically on the freedom to move from one place to another,
jurisprudence provides that this right is not absolute.95 As the 1987 Constitution itself reads, the
State96 may impose limitations on the exercise of this right, provided that they: (1) serve the interest
of national security, public safety, or public health; and (2) are provided by law.97
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and
prevention of juvenile crime, inarguably serve the interest of public safety. The restriction on the
minor's movement and activities within the confines of their residences and their immediate vicinity
during the curfew period is perceived to reduce the probability of the minor becoming victims of or
getting involved in crimes and criminal activities. As to the second requirement, i.e., that the
limitation "be provided by law," our legal system is replete with laws emphasizing the State's duty to
afford special protection to children, i.e., RA 7610,98 as amended, RA 977599 RA 9262100 RA 9851101RA
9344102 RA 10364103 RA 9211104 RA8980,105 RA9288,106 and Presidential Decree (PD) 603,107 as
amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local
government units, through their city or municipal councils, to set curfew hours for children. It reads:
Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew
hours for children as may be warranted by local conditions. The duty to enforce curfew
ordinances shall devolve upon the parents or guardians and the local authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents
have done in this case) and enforce the same through their local officials. In other words, PD 603
provides sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise of
the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional
rights,108 but the exercise of these rights is not co-extensive as those of adults.109 They are
always subject to the authority or custody of another, such as their parent/s and/or guardian/s, and
the State.110 As parens patriae, the State regulates and, to a certain extent, restricts the minors'
exercise of their rights, such as in their affairs concerning the right to vote,111 the right to execute
contracts,112 and the right to engage in gainful employment.113 With respect to the right to travel,
minors are required by law to obtain a clearance from the Department of Social Welfare and
Development before they can travel to a foreign country by themselves or with a person other than
their parents.114 These limitations demonstrate that the State has broader authority over the minors'
activities than over similar actions of adults,115 and overall, reflect the State's general interest in the
well-being of minors.116 Thus, the State may impose limitations on the minors' exercise of rights even
though these limitations do not generally apply to adults.
In Bellotti,117the US Supreme Court identified three (3) justifications for the differential treatment of the
minors' constitutional rights. These are: first, the peculiar vulnerability of children; second, their
inability to make critical decisions in an informed and mature manner; and third, the
importance of the parental role in child rearing:118
[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to
adjust its legal system to account for children's vulnerability and their needs for 'concern, ...
sympathy, and ... paternal attention.x x x.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the
formative years of childhood and adolescence, minors often lack the experience, perspective,
and judgment to recognize and avoid choices that could be detrimental to them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations
on the freedoms of minors. The State commonly protects its youth from adverse governmental
action and from their own immaturity by requiring parental consent to or involvement in important
decisions by minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of the parental role, may be
important to the child's chances for the full growth and maturity that make eventual
participation in a free society meaningful and rewarding.119 (Emphases and underscoring supplied)
Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened

dangers on the streets to minors, as compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens, with all that implies. It may secure this against impeding
restraints and dangers within a broad range of selection. Among evils most appropriate for such
action are the crippling effects of child employment, more especially in public places, and
the possible harms arising from other activities subject to all the diverse influences of the
[streets]. It is too late now to doubt that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim to control of the child or one that
religious scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary use of highways. But even
in such use streets afford dangers for them not affecting adults. And in other uses, whether in
work or in other things, this difference may be magnified.121 (Emphases and underscoring
supplied)
For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel
rights, provided, they are singled out on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.122 The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed
under the Constitution, or (ii) burdens suspect classes.123 The intermediate scrutiny test applies
when a classification does not involve suspect classes or fundamental rights, but requires
heightened scrutiny, such as in classifications based on gender and legitimacy.124 Lastly, the rational
basis test applies to all other subjects not covered by the first two tests.125
Considering that the right to travel is a fundamental right in our legal system guaranteed no less by
our Constitution, the strict scrutiny test126 is the applicable test.127 At this juncture, it should be
emphasized that minors enjoy the same constitutional rights as adults; the fact that the State has
broader authority over minors than over adults does not trigger the application of a lower level of
scrutiny.128 In Nunez v. City of San Diego (Nunez),129 the US court illumined that:
Although many federal courts have recognized that juvenile curfews implicate the fundamental rights
of minors, the parties dispute whether strict scrutiny review is necessary. The Supreme Court
teaches that rights are no less "fundamental" for minors than adults, but that the analysis of
those rights may differ:
Constitutional rights do not mature and come into being magically only when one attains the
state-defined age of majority. Minors, as well as adults, are protected by the Constitution
1âwphi1
and possess constitutional rights. The Court[,] indeed, however, [has long] recognized that the
State has somewhat broader authority to regulate the activities of children than of adults. xxx. Thus,
minors' rights are not coextensive with the rights of adults because the state has a greater range of
interests that justify the infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when applicable, warrant differential
analysis of the constitutional rights of minors and adults: x x x. The Bellotti test [however] does
not establish a lower level of scrutiny for the constitutional rights of minors in the context of
a juvenile curfew. Rather, the Bellotti framework enables courts to determine whether the state has
a compelling state interest justifying greater restrictions on minors than on adults. x x x.
x x x Although the state may have a compelling interest in regulating minors differently than
adults, we do not believe that [a] lesser degree of scrutiny is appropriate to review burdens
on minors' fundamental rights. x x x.
According, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)
The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances
of minors as enumerated in Bellotti vis-a-vis the State's duty as parenspatriae to protect and
preserve their well-being with the compelling State interests justifying the assailed government act.
Under the strict scrutiny test, a legislative classification that interferes with the exercise of a
fundamental right or operates to the disadvantage of a suspect class is presumed
unconstitutional.131 Thus, the government has the burden of proving that the classification (1) is
necessary to achieve a compelling State interest, and (i1) is the least restrictive means to
protect such interest or the means chosen is narrowly tailored to accomplish the interest.132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include constitutionally declared policies.133 This
Court has ruled that children's welfare and the State's mandate to protect and care for them
as parenspatriae constitute compelling interests to justify regulations by the State.134 It is akin
to the paramount interest of the state for which some individual liberties must give way.135 As
explained in Nunez, the Bellotti framework shows that the State has a compelling interest in
imposing greater restrictions on minors than on adults. The limitations on minors under Philippine
laws also highlight this compelling interest of the State to protect and care for their welfare.
In this case, respondents have sufficiently established that the ultimate objective of the Curfew
Ordinances is to keep unsupervised minors during the late hours of night time off of public areas, so
as to reduce - if not totally eliminate - their exposure to potential harm, and to insulate them against
criminal pressure and influences which may even include themselves. As denoted in the "whereas
clauses" of the Quezon City Ordinance, the State, in imposing nocturnal curfews on minors,
recognizes that:
[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance,
education, and moral development, which [lead] them into exploitation, drug addiction, and become
vulnerable to and at the risk of committing criminal offenses;
xxxx
[d] as a consequence, most of minor children become out-of-school youth, unproductive by-
standers, street children, and member of notorious gangs who stay, roam around or meander in
public or private roads, streets or other public places, whether singly or in groups without lawful
purpose or justification;
xxxx
[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming
around, loitering or wandering in the evening are the frequent personalities involved in various
infractions of city ordinances and national laws;
[g] it is necessary in the interest of public order and safety to regulate the movement of minor
children during night time by setting disciplinary hours, protect them from neglect, abuse or cruelty
and exploitation, and other conditions prejudicial or detrimental to their development;
[h] to strengthen and support parental control on these minor children, there is a need to put a
restraint on the tendency of growing number of youth spending their nocturnal activities wastefully,
especially in the face of the unabated rise of criminality and to ensure that the dissident elements of
society are not provided with potent avenues for furthering their nefarious activities[.]136
The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City
Council to support its passage of the curfew ordinance subject of that case, may serve as a
guidepost to our own eatment of the present case. Significantly, in Schleifer, the US court
recognized the entitlement of elected bodies to implement policies for a safer community, in relation
to the proclivity of children to make dangerous and potentially life-shaping decisions when left
unsupervised during the late hours of night:
Charlottesville was constitutionally justified in believing that its curfew would materially assist its first
stated interest-that of reducing juvenile violence and crime. The City Council acted on the basis of
information from many sources, including records from Charlottesville's police department, a survey
of public opinion, news reports, data from the United States Department of Justice, national crime
reports, and police reports from other localities. On the basis of such evidence, elected bodies
are entitled to conclude that keeping unsupervised juveniles off the streets late at night will
make for a safer community. The same streets may have a more volatile and less wholesome
character at night than during the day. Alone on the streets at night children face a series of
dangerous and potentially life-shaping decisions. Drug dealers may lure them to use narcotics or
aid in their sale. Gangs may pressure them into membership or participation in violence. "[D]uring
the formative years of childhood and adolescence, minors often lack the experience, perspective,
and judgment to recognize and avoid choices that could be detrimental to them." Those who
succumb to these criminal influences at an early age may persist in their criminal conduct as
adults. Whether we as judges subscribe to these theories is beside the point. Those elected officials
with their finger on the pulse of their home community clearly did. In attempting to reduce through its
curfew the opportunities for children to come into contact with criminal influences, the City was
directly advancing its first objective of reducing juvenile violence and crime.138 (Emphases and
underscoring supplied; citations omitted)
Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila
presented statistical data in their respective pleadings showing the alarming prevalence of crimes
involving juveniles, either as victims or perpetrators, in their respective localities.139
Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant
to their police power under the general welfare clause.140 In this light, the Court thus finds that the
local governments have not only conveyed but, in fact, attempted to substantiate legitimate
concerns on public welfare, especially with respect to minors. As such, a compelling State
interest exists for the enactment and enforcement of the Curfew Ordinances.
With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if
the restrictions set forth in· the Curfew Ordinances are narrowly tailored or provide the least
restrictive means to address the cited compelling State interest - the second requirement of the strict
scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the fundamental premise that citizens
should not be hampered from pursuing legitimate activities in the exercise of their constitutional
rights. While rights may be restricted, the restrictions must be minimal or only to the extent
necessary to achieve the purpose or to address the State's compelling interest. When it is possible
for governmental regulations to be more narrowly drawn to avoid conflicts with constitutional
rights, then they must be so narrowly drawn. 141
Although treated differently from adults, the foregoing standard applies to regulations on minors as
they are still accorded the freedom to participate in any legitimate activity, whether it be social,
religious, or civic.142 Thus, in the present case, each of the ordinances must be narrowly tailored as to
ensure minimal constraint not only on the minors' right to travel but also on their other constitutional
rights.143
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being
narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their religion
and to free speech.145 It observed that:
The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at
the local Roman Catholic Church or Christmas Eve services at the various local Protestant
Churches. It would likewise prohibit them from attending the New [Year's] Eve watch services at the
various churches. Likewise it would prohibit grandparents, uncles, aunts or adult brothers and sisters
from taking their minor relatives of any age to the above mentioned services. x x x.
xxxx
Under the ordinance, during nine months of the year a minor could not even attend the city
council meetings if they ran past 10:30 (which they frequently do) to express his views on the
necessity to repeal the curfew ordinance, clearly a deprivation of his First Amendment right to
freedom of speech.
xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very
narrowly drawn ordinance of many pages with eleven exceptions and was very carefully drafted in
an attempt to pass constitutional muster. It specifically excepted [the] exercise of First
Amendment rights, travel in a motor vehicle and returning home by a direct route from
religious, school, or voluntary association activities. (Emphases supplied)
After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the
Quezon City Ordinance meets the above-discussed requirement, while the Manila and Navotas
Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a)
minors accompanied by their parents, family members of legal age, or guardian; (b) those running
lawful errands such as buying of medicines, using of telecommunication facilities for emergency
purposes and the like; (c) night school students and those who, by virtue of their employment, are
required in the streets or outside their residence after 10:00 p.m.; and (d) those working at night.146
For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes;
(b) those working at night; (c) those who attended a school or church activity, in coordination with a
specific barangay office; (d) those traveling towards home during the curfew hours; (e) those running
errands under the supervision of their parents, guardians, or persons of legal age having authority
over them; (j) those involved in accidents, calamities, and the like. It also exempts minors from the
curfew during these specific occasions: Christmas eve, Christmas day, New Year's eve, New Year's
day, the night before the barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day, Holy
Thursday, Good Friday, Black Saturday, and Easter Sunday.147
This Court observes that these two ordinances are not narrowly drawn in that their exceptions are
inadequate and therefore, run the risk of overly restricting the minors' fundamental freedoms. To be
fair, both ordinances protect the rights to education, to gainful employment, and to travel at night
from school or work.148 However, even with those safeguards, the Navotas Ordinance and, to a
greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors'
rights of association, free exercise of religion, rights to peaceably assemble, and of free expression,
among others.
The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected
liberties. The Navotas Ordinance is apparently more protective of constitutional rights than the
Manila Ordinance; nonetheless, it still provides insufficient safeguards as discussed in detail below:
First, although it allows minors to engage in school or church activities, it hinders them from
engaging in legitimate non-school or nonchurch activities in the streets or going to and from such
activities; thus, their freedom of association is effectively curtailed. It bears stressing that
participation in legitimate activities of organizations, other than school or church, also contributes to
the minors' social, emotional, and intellectual development, yet, such participation is not exempted
under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and
Christmas day, it effectively prohibits minors from attending traditional religious activities (such
as simbang gabi) at night without accompanying adults, similar to the scenario depicted
in Mosier.149 This legitimate activity done pursuant to the minors' right to freely exercise their religion
is therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political
rallies or attend city council meetings to voice out their concerns in line with their right to peaceably
assemble and to free expression.
Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside
curfew hours, but the Court finds no reason to prohibit them from participating in these legitimate
activities during curfew hours. Such proscription does not advance the State's compelling interest to
protect minors from the dangers of the streets at night, such as becoming prey or instruments of
criminal activity. These legitimate activities are merely hindered without any reasonable relation to
the State's interest; hence, the Navotas Ordinance is not narrowly drawn. More so, the Manila
Ordinance, with its limited exceptions, is also not narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely stricken down since their
exceptions, which are essentially determinative of the scope and breadth of the curfew regulations,
are inadequate to ensure protection of the above-mentioned fundamental rights. While some
provisions may be valid, the same are merely ancillary thereto; as such, they cannot subsist
independently despite the presence150 of any separability clause.151
The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently
safeguards the minors' constitutional rights. It provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by
the provisions of this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony, religious mass,
and/or other extra-curricular activities of their school or organization wherein
their attendance are required or otherwise indispensable, or when such minors
are out and unable to go home early due to circumstances beyond their control
as verified by the proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as
conflagration, earthquake, hospitalization, road accident, law enforcers encounter,
and similar incidents[;]
(d) When the minor is engaged in an authorized employment activity, or going to or

returning home from the same place of employment activity without any detour or
stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in
no violation of this Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending an official school,
religious, recreational, educational, social, community or other similar private
activity sponsored by the city, barangay, school, or other similar private
civic/religious organization/group (recognized by the community) that
supervises the activity or when the minor is going to or returning home from
such activity, without any detour or stop; and
(h) When the minor can present papers certifying that he/she is a student and was
dismissed from his/her class/es in the evening or that he/she is a working
student.152 (Emphases and underscoring supplied)
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance
is more narrowly drawn to sufficiently protect the minors' rights of association, free exercise of
religion, travel, to peaceably assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of
these aforementioned rights. These items uphold the right of association by enabling minors to
attend both official and extra-curricular activities not only of their school or church but also
of other legitimate organizations. The rights to peaceably assemble and of free expression
are also covered by these items given that the minors' attendance in the official activities of
civic or religious organizations are allowed during the curfew hours. Unlike in the Navotas
Ordinance, the right to the free exercise of religion is sufficiently safeguarded in the Quezon City
Ordinance by exempting attendance at religious masses even during curfew hours. In relation to
their right to ravel, the ordinance allows the minor-participants to move to and from the places
where these activities are held. Thus, with these numerous exceptions, the Quezon City
Ordinance, in truth, only prohibits unsupervised activities that hardly contribute to the well-
being of minors who publicly loaf and loiter within the locality at a time where danger is
perceivably more prominent.
To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run
lawful errands or engage in legitimate activities during the night, notwithstanding curfew hours. As
astutely observed by Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic
M.V.F. Leonen during the deliberations on this case, parental permission is implicitly considered as
an exception found in Section 4, item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied
by their parents or guardian", as accompaniment should be understood not only in its actual but also
in its constructive sense. As the Court sees it, this should be the reasonable construction of this
exception so as to reconcile the juvenile curfew measure with the basic premise that State
interference is not superior but only complementary to parental supervision. After all, as the
Constitution itself prescribes, the parents' right to rear their children is not only natural but primary.
Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is
dealing with the welfare of minors who are presumed by law to be incapable of giving proper consent
due to their incapability to fully understand the import and consequences of their actions. In one
case it was observed that:
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can
easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or
import of her actions. The State, as parenspatriae, is under the obligation to minimize the risk of
harm to those who, because of their minority, are as yet unable to take care of themselves fully.
Those of tender years deserve its protection.153
Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and
balancing the same against the State's compelling interest to promote juvenile safety and prevent
juvenile crime, this Court finds that the curfew imposed under the Quezon City Ordinance is
reasonably justified with its narrowly drawn exceptions and hence, constitutional. Needless to say,
these exceptions are in no way limited or restricted, as the State, in accordance with the lawful
exercise of its police power, is not precluded from crafting, adding, or modifying exceptions in similar
laws/ordinances for as long as the regulation, overall, passes the parameters of scrutiny as applied
in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to further discuss
the validity of its penal provisions in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under Section 8
thereof,154 does not impose any penalty on the minors. For its part, the Navotas Ordinance requires
the minor, along with his or her parent/s or guardian/s, to render social civic duty and community
service either in lieu of - should the parent/s or guardian/s of the minor be unable to pay the fine
imposed - or in addition to the fine imposed therein.155 Meanwhile, the Manila Ordinance imposed
various sanctions to the minor based on the age and frequency of violations, to wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist
of a REPRIMAND for the youth offender and ADMONITION to the offender's
parent, guardian or person exercising parental authority.
(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age,
the sanction/penalty shall be:
1. For the FIRST OFFENSE, Reprimand and Admonition;
2. For the SECOND OFFENSE, Reprimand and Admonition, and a

warning about the legal impostitions in case of a third and subsequent
violation; and
3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one

(1) day to ten (10) days, or a Fine of TWO THOUSAND PESOS
(Php2,000.00), or both at the discretion of the Court, PROVIDED, That
the complaint shall be filed by the PunongBarangay with the office of the City
Prosecutor.156 (Emphases and underscoring supplied).
Thus springs the question of whether local governments could validly impose on minors these
sanctions - i.e., (a) community . service; (b) reprimand and admonition; (c) fine; and (d)
imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as amended, prohibit the
imposition of penalties on minors for status offenses such as curfew violations, viz.:
SEC. 57. Status Offenses. - Any conduct not considered an offense or not penalized if
committed by an adult shall not be considered an offense and shall not be punished if
committed by a child.
SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local governments

concerning juvenile status offenses such as but not limited to, curfew violations, truancy,
parental disobedience, anti-smoking and anti-drinking laws, as well as light offenses and
misdemeanors against public order or safety such as, but not limited to, disorderly conduct, public
scandal, harassment, drunkenness, public intoxication, criminal nuisance, vandalism, gambling,
mendicancy, littering, public urination, and trespassing, shall be for the protection of children. No
penalty shall be imposed on children for said violations, and they shall instead be brought to
their residence or to any barangay official at the barangay hall to be released to the custody of their
parents. Appropriate intervention programs shall be provided for in such ordinances. The child
shall also be recorded as a "child at risk" and not as a "child in conflict with the law." The ordinance
shall also provide for intervention programs, such as counseling, attendance in group activities for
children, and for the parents, attendance in parenting education seminars. (Emphases and
underscoring supplied.)
To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of
minors, when the similar conduct of adults are not considered as an offense or penalized (i.e., status
offenses). Instead, what they prohibit is the imposition of penalties on minors for violations of these
regulations. Consequently, the enactment of curfew ordinances on minors, without penalizing them
for violations thereof, is not violative of Section 57-A.
"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment

or fine";158 "[p ]unishment imposed by lawful authority upon a person who commits a deliberate or
negligent act."159 Punishment, in tum, is defined as "[a] sanction - such as fine, penalty, confinement,
or loss of property, right, or privilege - assessed against a person who has violated the law."160
The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor
in violation of the regulations are without legal consequences. Section 57-A thereof empowers local
governments to adopt appropriate intervention programs, such as community-based
programs161 recognized under Section 54162 of the same law.
In this regard, requiring the minor to perform community service is a valid form of intervention
program that a local government (such as Navotas City in this case) could appropriately adopt in an
ordinance to promote the welfare of minors. For one, the community service programs provide
minors an alternative mode of rehabilitation as they promote accountability for their delinquent acts
without the moral and social stigma caused by jail detention.
In the same light, these programs help inculcate discipline and compliance with the law and legal
orders. More importantly, they give them the opportunity to become productive members of society
and thereby promote their integration to and solidarity with their community.
The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57
and 57-A of RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to
the minor's misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or
"counsel or warning against fault or oversight."163 The Black's Law Dictionary defines admonition as
"[a]n authoritatively issued warning or censure";164 while the Philippine Law Dictionary defines it as a
"gentle or friendly reproof, a mild rebuke, warning or reminder, [counseling], on a fault, error or
oversight, an expression of authoritative advice or warning."165 Notably, the Revised Rules on
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in administrative cases
explicitly declare that "a warning or admonition shall not be considered a penalty."166
In other words, the disciplinary measures of community-based programs and admonition are clearly
not penalties - as they are not punitive in nature - and are generally less intrusive on the rights and
conduct of the minor. To be clear, their objectives are to formally inform and educate the minor, and
for the latter to understand, what actions must be avoided so as to aid him in his future conduct.
A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment
imposed by the City of Manila on the minor. Reprimand is generally defined as "a severe or formal
reproof."167 The Black's Law Dictionary defines it as "a mild form of lawyer discipline that does not
restrict the lawyer's ability to practice law";168 while the Philippine Law Dictionary defines it as a
"public and formal censure or severe reproof, administered to a person in fault by his superior officer
or body to which he belongs. It is more than just a warning or admonition."169 In other words,
reprimand is a formal and public pronouncement made to denounce the error or violation committed,
to sharply criticize and rebuke the erring individual, and to sternly warn the erring individual including
the public against repeating or committing the same, and thus, may unwittingly subject the erring
individual or violator to unwarranted censure or sharp disapproval from others. In fact, the RRACCS
and our jurisprudence explicitly indicate that reprimand is a penalty,170 hence, prohibited by Section
57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our
various criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as
amended, evidently prohibits.
As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states
that "[n]o penalty shall be imposed on children for x x x violations [of] juvenile status
offenses]." Thus, for imposing the sanctions of reprimand, fine, and/or imprisonment on minors for
curfew violations, portions of Section 4 of the Manila Ordinance directly and irreconcilably conflict
with the clear language of Section 57-A of RA 9344, as amended, and hence, invalid. On the other
hand, the impositions of community service programs and admonition on the minors are allowed as
they do not constitute penalties.
CONCLUSION
In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the
strict scrutiny test - that is, that the State has sufficiently shown a compelling interest to promote
juvenile safety and prevent juvenile crime in the concerned localities, only the Quezon City
Ordinance has passed the second prong of the strict scrutiny test, as it is the only issuance out of
the three which provides for the least restrictive means to achieve this interest. In particular, the
Quezon City Ordinance provides for adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve the
State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their parents or
guardian", has also been construed to include parental permission as a constructive form of
accompaniment and hence, an allowable exception to the curfew measure; the manner of
enforcement, however, is left to the discretion of the local government unit.
In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void,
while the Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this
Decision.
For another, the Court has determined that the Manila Ordinance's penal provisions imposing
reprimand and fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended.
Hence, following the rule that ordinances should always conform with the law, these provisions must
be struck down as invalid.
WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance No. 8046,
issued by the local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as
amended by Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of
2014, issued by the local government of the Quezon City is declared CONSTITUTIONAL and, thus,
VALID in accordance with this Decision.
SO ORDERED.
G.R. No. 170165 August 15, 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C.
ROA AS THE PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST
MARSHALL GENERAL GARCIA, and OF THE ARMED FORCES OF THE PHILIPPINES AND
THE GENERAL COURT-MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of
their superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise
valid under civilian law. Obedience and deference to the military chain of command and the
President as commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers are content-
neutral, beyond the sway of the officer’s own sense of what is prudent or rash, or more elementally,
of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the "ills"
of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining
them and other military officers from testifying before Congress without the President’s consent.
Petitioners also pray for injunctive relief against a pending preliminary investigation against them, in
preparation for possible court-martial proceedings, initiated within the military justice system in
connection with petitioners’ violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very
well been presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may
be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of
Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander
Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio
City, the former as the PMA Assistant Superintendent, and the latter as the Assistant Commandant
of Cadets.2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the
AFP to appear at a public hearing before the Senate Committee on National Defense and Security
(Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the Commission on
Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the
time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a
member, of "Joint Task Force Ranao" by the AFP Southern Command. "Joint Task Force Ranao"
was tasked with the maintenance of peace and order during the 2004 elections in the provinces of
Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter
to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment in
Brunei, but he nonetheless "directed other officers from the AFP who were invited to attend the
hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed
to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed
the two officers to attend the hearing.6 Conformably, Gen. Gudani and Col. Balutan filed their
respective requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of
the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to
attend said hearing, and that some of the invited officers also could not attend as they were
"attending to other urgent operational matters." By this time, both Gen. Gudani and Col. Balutan had
already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to
the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL

APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER
BALUTAN PA (GSC) ACCORDINGLY.7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator
that "no approval has been granted by the President to any AFP officer to appear" before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as
the hearing started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG
manifests that the couriers of the AFP Command Center had attempted to deliver the radio message
to Gen. Gudani’s residence in a subdivision in Parañaque City late in the night of 27 September
2005, but they were not permitted entry by the subdivision guards. The next day, 28 September
2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent
earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga
called Commodore Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani, but Gen.
Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani
that "it was an order," yet Gen. Gudani still refused to take Gen. Senga’s call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen.
Senga issued a statement which noted that the two had appeared before the Senate Committee "in
spite of the fact that a guidance has been given that a Presidential approval should be sought prior
to such an appearance;" that such directive was "in keeping with the time[-]honored principle of the
Chain of Command;" and that the two officers "disobeyed a legal order, in violation of A[rticles of]
W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court
Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive
department including the military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said executive order
in Senate v. Ermita.11 The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col.
Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost
Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col.
Galarpe, both petitioners invoked their right to remain silent.12 The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline.14 As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial
by the General Court Martial (GCM).15 Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert
Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to
appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles
6516 and 9717 of Commonwealth Act No. 408,18 and to submit their counter-affidavits and affidavits of
witnesses at the Office of the Judge Advocate General.19 The Orders were accompanied by
respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be declared unconstitutional;
(2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga,
Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or
orders, be permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any
AFP personnel appear before Congress as a "gag order," which violates the principle of separation
of powers in government as it interferes with the investigation of the Senate Committee conducted in
aid of legislation. They also equate the "gag order" with culpable violation of the Constitution,
particularly in relation to the public’s constitutional right to information and transparency in matters of
public concern. Plaintively, petitioners claim that "the Filipino people have every right to hear the
[petitioners’] testimonies," and even if the "gag order" were unconstitutional, it still was tantamount to
"the crime of obstruction of justice." Petitioners further argue that there was no law prohibiting them
from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of
Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as "all officers and soldiers in the active
service" of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially
considering that per records, petitioners have not yet been subjected to court martial proceedings.
Owing to the absence of such proceedings, the correct inquiry should be limited to whether
respondents could properly initiate such proceedings preparatory to a formal court-martial, such as
the aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding their
testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that
it is not a trier of facts at first instance,21 is averse to making any authoritative findings of fact, for that
function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced "per instruction" from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit before
this Court that they had learned of such order prior to their testimony, although the OSG asserts that
at the very least, Gen. Gudani already knew of such order before he testified.22 Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this petition,
which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle23 that AFP personnel of whatever rank
are liable under military law for violating a direct order of an officer superior in rank. Whether
petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume,
for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating
E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga not to
appear before the Senate Committee, an order that stands independent of the executive
order. Distinctions are called for, since Section 2(b) of E.O. 464 listed "generals and flag officers of
the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege," as among those public officials required in Section 3 of E.O.
464 "to secure prior consent of the President prior to appearing before either House of Congress."
The Court in Senate declared both Section 2(b) and Section 3 void,24 and the impression may have
been left following Senate that it settled as doctrine, that the President is prohibited from requiring
military personnel from attending congressional hearings without having first secured prior
presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered
by significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes
into consideration.25 However, the ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and independent specie of
presidential authority—the commander-in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the President are not encumbered by the same
degree of restriction as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as
well as the issues raised herein. The decision in Senate was rendered with the comfort that the
nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the Court was then
cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the
aegis of the commander-in-chief powers26 to require military officials from securing prior consent
before appearing before Congress. The pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-martial,
considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No.
408, which defines persons subject to military law as, among others, "all officers and soldiers in the
active service of the [AFP]," and points out that he is no longer in the active service.
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 where the Court
declared that an officer whose name was dropped from the roll of officers cannot be considered to
be outside the jurisdiction of military authorities when military justice proceedings were initiated
against him before the termination of his service. Once jurisdiction has been acquired over the
officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.28
Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which
goes against the contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a
discharge is complete, proceedings with a view to trial are commenced against him — as by
arrest or the service of charges, — the military jurisdiction will fully attach and once attached
may be continued by a trial by court-martial ordered and held after the end of the term of the
enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4
October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried
in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War x x
x"30 To this citation, petitioners do not offer any response, and in fact have excluded the matter of
Gen. Gudani’s retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential consent
prior to their appearance before the Senate, claiming that it violates the constitutional right to
information and transparency in matters of public concern; or if not, is tantamount at least to the
criminal acts of obstruction of justice and grave coercion. However, the proper perspective from
which to consider this issue entails the examination of the basis and authority of the President to
issue such an order in the first place to members of the AFP and the determination of whether such
an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most
crucial to the democratic way of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The Constitution reposes final authority, control
and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and
whose duties as commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature.31 Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil courts, on
matters such as conducting warrantless searches and seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power
to declare the existence of a state of war.33 Congress is also empowered to revoke a proclamation of
martial law or the suspension of the writ of habeas corpus.34 The approval of the Commission on
Appointments is also required before the President can promote military officers from the rank of
colonel or naval captain.35 Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile
in meaning and
implication as to whatever inherent martial authority the President may possess.36

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII,
which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all
armed forces of the Philippines x x x"37 Outside explicit constitutional limitations, such as those found
in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-
chief, absolute authority over the persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered
confined under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan
was also ordered, as a condition for his house arrest, that he may not issue any press statements or
give any press conference during his period of detention. The Court unanimously upheld such
restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of
speech, may be circumscribed by rules of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the military in fulfilling its
duties under the law depends to a large extent on the maintenance of discipline within its
ranks. Hence, lawful orders must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint
that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant
concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces is
as protector of the people and of the State.40 Towards this end, the military must insist upon a
respect for duty and a discipline without counterpart in civilian life.41 The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies as
powerful now as in the past.42 In the end, it must be borne in mind that the armed forces has a
distinct subculture with unique needs, a specialized society separate from civilian society. 43 In the
elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats.
They are those of a world apart, a very ancient world, which exists in parallel with the everyday world
but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the
civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the
warrior can never be that of civilization itself….44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War.45 "An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For
there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers
deployed in the field], on a distant service, were permitted to act upon their own opinion of their
rights [or their opinion of the
President’s intent], and to throw off the authority of the commander whenever they supposed it to
be unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those imposed on free speech
and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior
1âwphi1
officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal
regard if at all to the reason for such restraint. It is integral to military discipline that the soldier’s
speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that "[t]he armed forces shall
be insulated from partisan politics," and that ‘[n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote."47 Certainly, no constitutional provision or
military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital
that such opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military discipline to
foment an atmosphere that promotes an active dislike of or dissent against the President, the
commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President
they may dislike or distrust. This fundamental principle averts the country from going the way of
banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked
by regime changes wherein active military dissent from the chain of command formed a key, though
not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms
on a politicized military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view cannot be affirmed by the
legal order. The evolutionary path of our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At the same time, evolution mandates a
similar demand that our system of governance be more responsive to the needs and aspirations of
the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an
undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
necessary restriction on members of the military. A soldier cannot leave his/her post without the
consent of the commanding officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be able to appropriately
respond to any exigencies. For the same reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being
denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again,
military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of
duty or absents from his/her command, guard, quarters, station, or camp without proper leave is
subject to punishment by court-martial.48 It is even clear from the record that petitioners had actually
requested for travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing.49 Even petitioners are well aware that it was necessary for them to obtain permission from
their superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners’ position is affirmed, a considerable exception would be carved from the unimpeachable
right of military officers to restrict the speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline simply cannot warrant the
Court’s imprimatur on petitioner’s position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they were
responding to an invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately came from the President,
the head of the executive branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces
from testifying before a legislative inquiry? We hold that the President has constitutional authority to
do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer
who defies such injunction is liable under military justice. At the same time, we also hold that any
chamber of Congress which seeks the appearance before it of a military officer against the consent
of the President has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the land which the
President has the duty to faithfully execute.50
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In
doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that
the privilege must be formally invoked on specified grounds. However, the ability of the President
to prevent military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control the actions
and speech of members of the armed forces. The President’s prerogatives as commander-in-
chief are not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the approval
of higher-rank promotions,51 yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to
control the individual members of the armed forces be accorded the utmost respect. Where a military
officer is torn between obeying the President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.52
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s
functions is the conduct of inquiries in aid of legislation.53 Inasmuch as it is ill-advised for Congress to
interfere with the President’s power as commander-in-chief, it is similarly detrimental for the
President to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did
not come to pass in this petition, since petitioners testified anyway despite the presidential
prohibition. Yet the Court is aware that with its pronouncement today that the President has the right
to require prior consent from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members
of the military may be compelled to attend legislative inquiries even if the President desires
otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-
chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so.
There is considerable interplay between the legislative and executive branches, informed by due
deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this
relationship; hence, it is only as a last resort that one branch seeks to compel the other to a
particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy
a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on
judicial power due to its inability to originate national policies and legislation, such is balanced by the
fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among
others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.56 Arnault recognized that the legislative power of inquiry and the process to enforce it, "is an
essential and appropriate auxiliary to the legislative function."57 On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid
of legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI
of the Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon Committee
from requiring the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-called "McCarthy era", however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly
be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not
usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as
occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person
for that matter, the possible needed statute which prompted the need for the inquiry. Given such
statement in its invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances… wherein a clear pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction59 .
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the President’s consent notwithstanding the
invocation of executive privilege to justify such prohibition. The Court did not rule that the power to
conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging
instead that the viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if
the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance
in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a
member of the AFP to appear before Congress, the legislative body seeking such testimony may
seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of
the executive branch or the armed forces, the persons who wield authority and control over the
actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses
against the same — whether grounded on executive privilege, national security or similar concerns
— would be accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to comply with
the decision of the courts, whether the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional
parameters of power.60 This is the fair and workable solution implicit in the constitutional allocation of
powers among the three branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review
does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with
a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the notion of officers appearing
before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the President’s order
on them and other military officers not to testify before Congress without the President’s consent.
Yet these issues ultimately detract from the main point — that they testified before the Senate
despite an order from their commanding officer and their commander-in-chief for them not to do
so,61 in contravention of the traditions of military discipline which we affirm today. The issues raised
1âw phi 1
by petitioners could have very well been raised and properly adjudicated if the proper procedure was
observed. Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior officer under the setup we have
prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed, and
moreover, provides for an orderly manner by which the same result could have been achieved
without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
A.M. No. MTJ-10-1770 July 18, 2012
(Formerly A.M. OCA IPI No. 10-2255-MTJ)
OFFICE OF ADMINISTRATIVE SERVICES-OFFICE OF THE COURT

ADMINISTRATOR, Complainant,
vs.
JUDGE IGNACIO B. MACARINE, Municipal Circuit Trial Court, Gen. Luna, Surigao del
Norte, Respondent.
DECISION
BRION, J.:
The Office of the Court Administrator (OCA) filed the present administrative case against Judge
Ignacio B. Macarine (respondent) for violation of OCA Circular No. 49-20031 dated May 20, 2003.
OCA Circular No. 49-2003 requires that all foreign travels of judges and court personnel, regardless
of the number of days, must be with prior permission from the Court. A travel authority must be
secured from the OCA Judges must submit the following requirements:
(1.) application or letter-request addressed to the Court Administrator stating the purpose of
the travel abroad;
(2.) application for leave covering the period of the travel abroad, favorably recommended by
the Executive Judge; and
(3.) certification from the Statistics Division, Court Management Office, OCA as to the
condition of the docket.2
The complete requirements should be submitted to and received by the OCA at least two weeks
before the intended time of travel. No action shall be taken on requests for travel authority with
incomplete requirements.3
Judges and personnel who shall leave the country without travel authority issued by the OCA shall
be subject to disciplinary action.4
On August 13, 2009, the respondent wrote then Court Administrator, now Associate Justice Jose
Portugal Perez, requesting for authority to travel to Hongkong with his family for the period of
September 10 - 14, 2009 where he would celebrate his 65th birthday. The respondent stated that his
travel abroad shall be charged to his annual forced leave. However, he did not submit the
corresponding application for leave. For his failure to submit the complete requirements, his request
for authority to travel remained unacted upon. The respondent proceeded with his travel abroad
without the required travel authority from the OCA.
On January 28, 2010,5 the respondent was informed by the OCA that his leave of absence for the
period of September 9-15, 2009 had been disapproved and his travel considered unauthorized by
the Court. His absences shall not be deducted from his leave credits but from his salary
corresponding to the seven (7) days that he was absent, pursuant to Section 50 of the Omnibus
Rules on Leave.6 The respondent was also required to submit his explanation on his failure to comply
with OCA Circular No. 49-2003.
In his letter-explanation dated February 25, 2010, the respondent narrated that his daughter, a nurse
working in New Jersey, USA, gave him a trip to Hongkong as a gift for his 65th birthday. In the first
week of September 2009, he received a call from his daughter that she had already booked him,
together with his wife and two sons, in a hotel in Hongkong from September 13 to 15, 2009. They
flew in to Manila from Surigao City on September 9, 2009, intending to prepare the necessary
papers for his authority to travel at the Supreme Court the following day. However, sensing time
constraint and thinking of the futility of completing the requirements before their scheduled flight, he
opted not to immediately complete the requirements and simply went ahead with their travel abroad.
He thought of submitting his compliance upon his return to Manila. He acknowledged his mistake
and regretted his failure to comply with OCA Circular No. 49-2003. He promised not to commit the
same infraction again. He further requested for reconsideration of the OCA’s intended action to
deduct his salary corresponding to the seven (7) days that he was absent, instead of charging his
absences to his leave credits.
In an Evaluation Report dated September 6, 2010, the OCA found the respondent guilty of violation
of OCA Circular No. 49-2003 for traveling out of the country without filing the necessary application
for leave and without first securing a travel authority from the Court. The OCA recommended:
a) this matter be RE-DOCKETED as a regular administrative matter;
b) Judge Ignacio B. Macarine, MCTC, Gen. Luna, Surigao del Norte, be FINED in the
amount of P5,000.00 for Violation for Circular No. 49-2003 dated May 20, 2003; and c) the
Financial Management Office, Finance Division, OCA, be DIRECTED to DEDUCT the
amount equivalent to the seven (7) days salary of Judge Ignacio Macarine as a result of his
disapproved and unauthorized leave of absence pursuant to Section 50, Omnibus Rules on
Leave, without deducting his leave credits thereof. [emphases supplied]
True, the right to travel is guaranteed by the Constitution. However, the exercise of such right is not
1âwphi1
absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to travel
provided that such restriction is in the interest of national security, public safety or public health as
may be provided by law. This, however, should by no means be construed as limiting the Court’s
inherent power of administrative supervision over lower courts. OCA Circular No. 49-2003 does not
restrict but merely regulates, by providing guidelines to be complied by judges and court personnel,
before they can go on leave to travel abroad. To "restrict" is to restrain or prohibit a person from
doing something; to "regulate" is to govern or direct according to rule.
To ensure management of court dockets and to avoid disruption in the administration of justice, OCA
Circular No. 49-2003 requires a judge who wishes to travel abroad to submit, together with his
application for leave of absence duly recommended for approval by his Executive Judge, a
certification from the Statistics Division, Court Management Office of the OCA, as to the condition of
his docket, based on his Certificate of Service for the month immediately preceding the date of his
intended travel, that he has decided and resolved all cases or incidents within three (3) months from
date of submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution.7
For traveling abroad without having been officially allowed by the Court, the respondent is guilty of
violation of OCA Circular No. 49-2003. Under Section 9(4), Rule 140 of the Revised Rules of Court,
violation of Supreme Court directives and circular is considered a less serious charge and, therefore,
punishable by suspension from office without salary and other benefits for not less than one (1)
month nor more than three (3) months; or a fine of more than P10,000.00 but not exceeding
P20,000.00.8
Section 53, Rule IV of the Revised Rules on Administrative Cases in the Civil Service grants the
disciplining authority the discretion to consider mitigating circumstances in the imposition of the
proper penalty. The Court had in several instances refrained from imposing the actual penalties in
the presence of mitigating facts, such as the employee’s length of service, acknowledgement of his
or her infractions and feelings of remorse for the same, advanced age, family circumstances, and
other humanitarian and equitable considerations.
In the present case, the respondent, after learning that his daughter had already booked him and his
family in a hotel in Hongkong, immediately went to Manila to secure his travel authority from the
Court. However, with the short period of time from their arrival in Manila on September 9, 2009 up to
the time of their booking in Hongkong from September 13 to 15, 2009, he was pressed for time and
opted not to complete the required travel authority, with the intention of securing one after his travel.
The respondent regretted his failure to comply with the requirements of OCA Circular No. 49-2003.
He acknowledged his mistake and promised not to commit the same infraction in the future.
We consider the outlined circumstances as mitigating. Following judicial precedents, the respondent
deserves some degree of leniency in imposing upon him the appropriate penalty.
WHEREFORE, respondent Judge Ignacio B. Macarine, Municipal Circuit Trial Court, Gen. Luna,
Surigao del Norte, is hereby given the ADMONITION that he acted irresponsibly when he opted not
to immediately secure a travel authority and is saved only from the full force that his violation carries
by the attendant mitigating circumstances. He is also WARNED that the commission of a similar
violation in the future will merit a more severe penalty. The recommendation of the Office of the
Court Administration that his absences, which were unauthorized, shall not be deducted from his
leave credits but from his salary is hereby APPROVED.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
Chairperson
ROBERTO A. ABAD* MARIA LOURDES P. A. SERENO

Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
Footnotes
* Justice Roberto A. Abad was designated as additional memberin lieu of Justice Jose P.
Perez per Raffle dated July 16, 2012.
1
Guidelines on Request for Travel Abroad and Extensions for Travel Stay Abroad.
2
Id., paragraph B1.
3
Id., paragraph B2.
4
Id., paragraph B4.
5
Letter of Court Administrator Jose Midas P. Marquez.
6
Effect of unauthorized leave. - An official/employee who is absent without approved leave
shall not be entitled to receive his salary corresponding to the period of his unauthorized
leave of absence. It is understood however, that his absence shall no longer be deducted
from his accumulated leave credits, if there are any.
7
Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be
decided or resolved within twenty-four months from date of submission for the Supreme
Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate
courts, and three months for all other lower courts.
(2) A case or matter shall be deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the Rules of Court or by
the court itself.
8 Section 11(B1 &2), Revised Rules of Court.
The Lawphil Project - Arellano Law Foundation
DISSENTING AND CONCURRING OPINION
SERENO, J.:
The ponencia holds respondent Judge Ignacio B. Macarine (Judge Macarine) administratively liable
for violating Office of the Court Administrator (OCA) Circular No. 49-2003, which directs judges and
court personnel to submit the complete requirements for foreign travel two weeks before their
intended departure. I agree with the imposition of a penalty on Judge Macarine for his failure to (a)
file an application for leave and (b) submit a report on the conditions of the docket pending in his
sala prior to his travel abroad. However, I do not agree that he should be penalized for his failure to
request a travel authority from the OCA.
The policy of the Court requiring judges and court personnel to secure a travel authority must be re-
examined. As stated in the Dissenting Opinion of Senior Associate Justice Antonio T. Carpio, the
Guidelines on Request for Travel Abroad of all Members and Personnel of the Appellate Courts and
Trial Courts, and Officials and Personnel of the Supreme Court and the Office of the Court
Administrator1 call for a "wholistic review of the guidelines for travels abroad of all members and
personnel of the Judiciary."
Requiring judges and court personnel prior submission of a request for travel authority impairs their
right to travel, a constitutional right that cannot be unduly curtailed. During the approved leave of
absence of a judge or court personnel, he or she should be accorded the liberty to travel within the
country or abroad, as any other citizen, without this Court imposing a requirement to secure prior
permission therefor.2 Moreover, the Court cannot inquire into the purpose of the intended travel of a
judge or court personnel, as doing so would be an unwarranted interference into his or her private
affairs.3
Thus, Judge Macarine should not be held administratively liable for his failure to secure a permit to
travel prior to his intended departure, as such action would amount to an unjustified restriction to his
constitutional right to travel. However, on account of his failure to file (a) an application for leave and
(b) a report on his caseload prior to his travel abroad, I agree that he should be admonished.
MARIA LOURDES P.A. SERENO

Associate Justice
A.M. No. P-11-2927 December 13, 2011
[Formerly A.M. OCA IPI No. 10-3532-P]
LEAVE DIVISION, OFFICE OF ADMINISTRATIVE SERVICES-Office of the CourT Administrator

(OCA), Complainant,
vs.
WILMA SALVACION P. HEUSDENS, Clerk IV Municipal Trial Court in Cities, Tagum
City, Respondent.
DECISION
MENDOZA, J.:
This case stemmed from the leave application for foreign travel1 sent through mail by Wilma
Salvacion P. Heusdens (respondent), Staff Clerk IV of the Municipal Trial Court in Cities, Tagum
City, Davao del Norte.
Records disclose that on July 10, 2009, the Employees Leave Division, Office of Administrative
Services, Office of the Court Administrator (OCA), received respondent’s leave application for
foreign travel from September 11, 2009 to October 11, 2009. Respondent left for abroad without
waiting for the result of her application. It turned out that no travel authority was issued in her favor
because she was not cleared of all her accountabilities as evidenced by the Supreme Court
Certificate of Clearance. Respondent reported back to work on October 19, 2009.2
The OCA, in its Memorandum3 dated November 26, 2009, recommended the disapproval of
respondent’s leave application. It further advised that respondent be directed to make a written
explanation of her failure to secure authority to travel abroad in violation of OCA Circular No. 49-
2003. On December 7, 2009, then Chief Justice Reynato S. Puno approved the OCA
recommendation.
Accordingly, in a letter4 dated January 6, 2010, OCA Deputy Court Administrator Nimfa C. Vilches
informed respondent that her leave application was disapproved and her travel was considered
unauthorized. Respondent was likewise directed to explain within fifteen (15) days from notice her
failure to comply with the OCA circular.
In her Comment5 dated February 2, 2010, respondent admitted having travelled overseas without the
required travel authority. She explained that it was not her intention to violate the rules as she, in
fact, mailed her leave application which was approved by her superior, Judge Arlene Lirag-
Palabrica, as early as June 26, 2009. She honestly believed that her leave application would be
eventually approved by the Court.
The OCA, in its Report6 dated March 8, 2011, found respondent to have violated OCA Circular No.
49-2003 for failing to secure the approval of her application for travel authority.
Hence, the OCA recommended that the administrative complaint be re-docketed as a regular
administrative matter and that respondent be deemed guilty for violation of OCA Circular No. 49-
2003 and be reprimanded with a warning that a repetition of the same or similar offense in the future
would be dealt with more severely.
OCA Circular No. 49-2003 (B) specifically requires that:

B. Vacation Leave to be Spent Abroad.
Pursuant to the resolution in A.M. No. 99-12-08-SC dated 6 November 2000,7 all foreign travels of
judges and court personnel, regardless of the number of days, must be with prior permission from
the Supreme Court through the Chief Justice and the Chairmen of the Divisions.
1. Judges and court personnel who wish to travel abroad must secure a travel authority from the
Office of the Court Administrator. The judge or court personnel must submit the following:
(a) For Judges
xxx
(b) For Court Personnel:
• application or letter-request addressed to the Court Administrator stating the purpose of the
travel abroad;
• application for leave covering the period of the travel abroad, favorably recommended by
the Presiding Judge or Executive Judge;
• clearance as to money and property accountability;
• clearance as to pending criminal and administrative case filed against him/her, if any;
• for court stenographer, clearance as to pending stenographic notes for transcription from
his/her court and from the Court of Appeals; and
• Supreme Court clearance.
2. Complete requirements should be submitted to and received by the Office of the Court
Administrator at least two weeks before the intended period. No action shall be taken on requests for
travel authority with incomplete requirements. Likewise, applications for travel abroad received less
than two weeks of the intended travel shall not be favorably acted upon. [Underscoring supplied]
Paragraph 4 of the said circular also provides that "judges and personnel who shall leave the country
without travel authority issued by the Office of the Court Administrator shall be subject to disciplinary
action." In addition, Section 67 of the Civil Service Omnibus Rules on Leave8 expressly provides that
"any violation of the leave laws, rules or regulations, or any misrepresentation or deception in
connection with an application for leave, shall be a ground for disciplinary action." In fact, every
government employee who files an application for leave of absence for at least thirty (30) calendar
days is instructed to submit a clearance as to money and property accountabilities.9
In this case, respondent knew that she had to secure the appropriate clearance as to money and
property accountability to support her application for travel authority. She cannot feign ignorance of
this requirement because she had her application for clearance circulated through the various
divisions. She, however, failed to secure clearance from the Supreme Court Savings and Loan
Association (SCSLA) where she had an outstanding loan.
There is no dispute, therefore, that although respondent submitted her leave application for foreign
travel, she failed to comply with the clearance and accountability requirements. As the OCA Circular
specifically cautions that "no action shall be taken on requests for travel authority with incomplete
requirements," it was expected that her leave application would, as a consequence, be disapproved
by the OCA.
Considering that respondent was aware that she was not able to complete the requirements, her
explanation that she honestly believed that her application would be approved is unacceptable.
Thus, her leaving the country, without first awaiting the approval or non-approval of her application to
travel abroad from the OCA, was violative of the rules.
On the Constitutional Right to Travel
It has been argued that OCA Circular No. 49-2003 (B) on vacation leave to be spent abroad unduly
restricts a citizen’s right to travel guaranteed by Section 6, Article III of the 1987
Constitution.10 Section 6 reads:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law.
[Emphases supplied]
Let there be no doubt that the Court recognizes a citizen’s constitutional right to travel. It is, however,
not the issue in this case. The only issue in this case is the non-compliance with the Court’s rules
and regulations. It should be noted that respondent, in her Comment, did not raise any constitutional
concerns. In fact, she was apologetic and openly admitted that she went abroad without the required
travel authority. Hence, this is not the proper vehicle to thresh out issues on one’s constitutional right
to travel.
Nonetheless, granting that it is an issue, the exercise of one’s right to travel or the freedom to move
from one place to another,11 as assured by the Constitution, is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides
that "neither shall the right to travel be impaired except in the interest of national security, public
safety or public health, as may be provided by law." Some of these statutory limitations are the
following:
1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the
right to travel of an individual charged with the crime of terrorism even though such person is
out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary
of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the
use of, or withdraw, a passport of a Filipino citizen.
3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in
persons, issued Memorandum Order Radjr No. 2011-011,12 allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose
of travel, including possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended
by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment
Administration (POEA) may refuse to issue deployment permit to a specific country that
effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee’s right to travel "to protect the
Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or prejudicial to the child."
Inherent limitations on the right to travel are those that naturally emanate from the source. These are
very basic and are built-in with the power. An example of such inherent limitation is the power of the
trial courts to prohibit persons charged with a crime to leave the country.13 In such a case,
permission of the court is necessary. Another is the inherent power of the legislative department to
conduct a congressional inquiry in aid of legislation. In the exercise of legislative inquiry, Congress
has the power to issue a subpoena and subpoena duces tecum to a witness in any part of the
country, signed by the chairperson or acting chairperson and the Speaker or acting Speaker of the
House;14 or in the case of the Senate, signed by its Chairman or in his absence by the Acting
Chairman, and approved by the Senate President.15
Supreme Court has administrative supervision over all courts and the personnel thereof
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides
that the "Supreme Court shall have administrative supervision over all courts and the personnel
thereof." This provision empowers the Court to oversee all matters relating to the effective
supervision and management of all courts and personnel under it. Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986,16 considers the
Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign
travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These rules
and regulations, to which one submits himself or herself, have been issued to guide the government
officers and employees in the efficient performance of their obligations. When one becomes a public
servant, he or she assumes certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be prejudiced.
As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA
Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is
necessary for the orderly administration of justice. If judges and court personnel can go on leave and
travel abroad at will and without restrictions or regulations, there could be a disruption in the
administration of justice. A situation where the employees go on mass leave and travel together,
despite the fact that their invaluable services are urgently needed, could possibly arise. For said
reason, members and employees of the Judiciary cannot just invoke and demand their right to travel.
To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the
society as well. In a situation where there is a delay in the dispensation of justice, litigants can get
disappointed and disheartened. If their expectations are frustrated, they may take the law into their
own hands which results in public disorder undermining public safety. In this limited sense, it can
even be considered that the restriction or regulation of a court personnel’s right to travel is a concern
for public safety, one of the exceptions to the non-impairment of one’s constitutional right to travel.
Given the exacting standard expected from each individual called upon to serve in the Judiciary, it is
imperative that every court employee comply with the travel notification and authority requirements
as mandated by OCA Circular No. 49-2003. A court employee who plans to travel abroad must file
his leave application prior to his intended date of travel with sufficient time allotted for his application
to be processed and approved first by the Court. He cannot leave the country without his application
being approved, much less assume that his leave application would be favorably acted upon. In the
case at bench, respondent should have exercised prudence and asked for the status of her leave
application before leaving for abroad.
Indeed, under the Omnibus Rules Implementing Book V of Executive Order (EO) No. 292, a leave
application should be acted upon within five (5) working days after its receipt, otherwise the leave
application shall be deemed approved. Section 49, Rule XVI of the Omnibus Rules on Leave reads:
SEC. 49. Period within which to act on leave applications. – Whenever the application for leave of
absence, including terminal leave, is not acted upon by the head of agency or his duly authorized
representative within five (5) working days after receipt thereof, the application for leave of absence
shall be deemed approved.
Applying this provision, the Court held in the case of Commission on Appointments v. Paler17 that an
employee could not be considered absent without leave since his application was deemed approved.
In said case, there was no action on his application within five (5) working days from receipt
thereof.18
The ruling in Paler, however, is not squarely applicable in this case. First, the employee in said case
was governed by CSC Rules only. In the case of respondent, like the others who are serving the
Judiciary, she is governed not only by CSC Rules but also by OCA Circular No. 49-2003 which
imposes guidelines on requests for travel abroad for judges and court personnel. Second, in Paler,
the employee submitted his leave application with complete requirements before his intended travel
date. No additional requirement was asked to be filed. In the case of respondent, she submitted her
leave application but did not fully comply with the clearance and accountability requirements
enumerated in OCA Circular No. 49-2003. Third, in Paler, there was no approval or disapproval of
his application within 5 working days from the submission of the requirements. In this case, there
was no submission of the clearance requirements and, hence, the leave application could not have
been favorably acted upon.
SCSLA membership is voluntary
Regarding the requirement of the OCA that an employee must also seek clearance from the SCSLA,
the Court finds nothing improper in it. OCA is not enforcing the collection of a loan extended to such
employee.19 Although SCSLA is a private entity, it cannot be denied that its functions and operations
are inextricably connected with the Court. First, SCSLA was primarily established as a savings
vehicle for Supreme Court and lower court employees. The membership, which is voluntary, is open
only to Supreme Court justices, officials, and employees with permanent, coterminous, or casual
appointment, as well as to first and second-level court judges and their personnel.20 An eligible
employee who applies for membership with SCSLA must submit, together with his application, his
latest appointment papers issued by the Supreme Court.21 Second, when an employee-member
applies for a SCSLA loan, he or she is asked to authorize the Supreme Court payroll office to deduct
the amount due and remit it to SCSLA. Third, the employee-borrower likewise undertakes to assign
in favor of SCSLA, in case of non-payment, his capital deposit, including earned dividends, all
monies and monetary benefits due or would be due from his office, Government Service Insurance
System or from any government office or other sources, to answer the remaining balance of his
loan.22 Fourth, every employee-borrower must procure SCSLA members to sign as co-makers for
the loan23 and in case of leave applications that would require the processing of a Supreme Court
clearance, another co-maker’s undertaking would be needed.
The Court stresses that it is not sanctioning respondent for going abroad with an unpaid debt but for
failing to comply with the requirements laid down by the office of which she is an employee. When
respondent joined the Judiciary and volunteered to join the SCSLA, she agreed to follow the
requirements and regulations set forth by both offices. When she applied for a loan, she was not
forced or coerced to accomplish the requirements. Everything was of her own volition.
In this regard, having elected to become a member of the SCSLA, respondent voluntarily and
knowingly committed herself to honor these undertakings. By accomplishing and submitting the said
undertakings, respondent has clearly agreed to the limitations that would probably affect her
constitutional right to travel. By her non-compliance with the requirement, it can be said that she has
waived, if not constricted, her right. An employee cannot be allowed to enjoy the benefits and
privileges of SCSLA membership and at the same time be exempted from her voluntary obligations
and undertakings.
A judiciary employee who leaves for abroad without authority must be prepared to face the
consequences
Lest it be misunderstood, a judge or a member of the Judiciary, who is not being restricted by a
criminal court or any other agency pursuant to any statutory limitation, can leave for abroad without
permission but he or she must be prepared to face the consequences for his or her violation of the
Court’s rules and regulations. Stated otherwise, he or she should expect to be subjected to a
disciplinary action. In the past, the Court was not hesitant to impose the appropriate sanctions and
penalties.
In Office of the Administrative Services (OAS)-Office of the Court Administrator (OCA) v. Calacal,24 a
utility worker of the Metropolitan Trial Court was found guilty of violating OCA Circular No. 49-2003
for going overseas without the required travel authority and was reprimanded and warned that a
repetition of the same or similar offense would be penalized more severely. In that case, the Court
stressed that unawareness of the circular was not an excuse from non-compliance therewith.25
In Reyes v. Bautista,26 a court stenographer was found guilty of violation of OCA Circular No. 49-
2003 for traveling abroad without securing the necessary permission for foreign travel. She was also
found guilty of dishonesty when she indicated in her application that her leave would be spent in the
Philippines, when in truth it was spent abroad. Because of the employee’s numerous infractions, she
was dismissed from the service with forfeiture of all benefits and privileges, except accrued leave
credits, with prejudice to re-employment in any branch or instrumentality of the government,
including government owned or controlled corporations.
In Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani,27 a

branch clerk of court of the Municipal Trial Court of Meycauayan, Bulacan, was found guilty of
dishonesty for falsifying her Daily Time Record and leaving the country without the requisite travel
authority. She was suspended from the service for one (1) year without pay, with a warning that a
repetition of the same or similar offense would be dealt with more severely. lavv phi1
Following the Uniform Rules on Administrative Cases in the Civil Service, the Court considers a
violation of reasonable office rules and regulations as a light offense and punishable with reprimand
on the first offense; suspension for one to thirty days on the second; and dismissal from the service
on the third infraction. Considering that this appears to be respondent’s first infraction, the OCA
recommended that she be penalized with a reprimand and warned that a repetition of the same or
similar offense would be dealt with more severely.
The Court, nonetheless, takes note of the belated action (4 months) of the Leave Division on her
application for leave which she submitted two months before her intended departure date. The
Leave Division should have acted on the application, favorably or unfavorably, before the intended
date with sufficient time to communicate it to the applicant. If an applicant has not complied with the
requirements, the Leave Division should deny the same and inform him or her of the adverse action.
As respondent was not informed of the denial of her application within a reasonable time,
respondent should only be admonished.
WHEREFORE, respondent Wilma Salvacion P. Heusdens, Clerk IV Municipal Trial Court in Cities,
Tagum City, is hereby ADMONISHED for traveling abroad without any travel authority in violation of
OCA Circular No. 49-2003, with a WARNING that a repetition of the same or similar offense would
be dealt with more severely.
The Leave Division, OAS-OCA, is hereby directed to act upon applications for travel abroad at least
five (5) working days before the intended date of departure.
SO ORDERED.
APRIL 17, 2018
G.R. No. 197930
EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G. SEE, Petitioners

vs
HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RICARDO V. PARAS III,
in his capacity as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF
IMMIGRATION, Respondents
DECISION
REYES, JR., J.:
These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court
assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise
known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold
Departure Orders, Watchlist Orders and Allow Departure Orders," on the ground that it infringes on
the constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the
following orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ
Circular No. 41, thus:
1. Watchlist Order No. ASM-11-237 dated August 9, 2011;1
2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;2 and
3. Watchlist Order No. 2011-573 dated October 27, 2011.3
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation
of the Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and
Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No.
2011-64 dated July 22, 2011 issued against them.
Antecedent Facts
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17,
prescribing rules and regulations governing the issuance of HDOs. The said issuance was intended
to restrain the indiscriminate issuance of HDOs which impinge on the people's right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing
rules and regulations governing the issuance and implementation of watchlist orders. In particular, it
provides for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with
criminal cases pending preliminary investigation or petition for review before the DOJ. Further, it
states that the DOJ Secretary may issue an ADO to a person subject of a WLO who intends to leave
the country for some exceptional reasons.6 Even with the promulgation of DOJ Circular No. 18,
however, DOJ Circular No. 17 remained the governing rule on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No.
41, consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation
of HDOs, WLOS, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and
regulations contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders
or parts thereof which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of the Philippines and her
subsequent election as Pampanga representative, criminal complaints were filed against her before
the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for
plunder;7
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for
plunder, malversation and/or illegal use of OWWA funds, graft and corruption, violation of the
Omnibus Election Code (OEC), violation of the Code of Conduct and Ethical Standards for Public
Officials, and qualified theft;8 and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,
malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of
the Code of Conduct and Ethical Standards for Public Officials and qualified theft.9
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August
9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the
inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.10 Thereafter, the Bl issued WLO
No. ASM-11-237,11 implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect
her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12 WLO No. 2011-422, as
amended, is valid for a period of 60 days, or until November 5, 2011, unless sooner terminated or
otherwise extended. This was lifted in due course by De Lima, in an Order dated November 14,
2011, following the expiration of its validity.13
Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the
OEC were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others,
with the DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004
and 2007 Election Fraud,14 specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria
Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the
OEC and COMELEC Rules and Regulations;15 and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo,
et al., for electoral sabotage.16
Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA
and Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26,
2011, unless sooner terminated or otherwise extended.17
In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA
requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she
may be able to seek medical attention from medical specialists abroad for
her hypoparathyroidism and metabolic bone mineral disorder. She mentioned six different countries
where she intends to undergo consultations and treatments: United States of America, Germany,
Singapore, Italy, Spain and Austria.18 She likewise undertook to return to the Philippines, once her
treatment abroad is completed, and participate in the proceedings before the DOJ.19 In support of her
application for ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the
Secretary of Foreign Affairs, of her Travel Authority;
2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the
House of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to
include travel to Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and
Austria;
4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract
prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona
(Dr. Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr. Ona,
accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited GMA
at her residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were
GMA's attending doctors who explained her medical condition and the surgical operations conducted
on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having
undergone a series of three major operations."24
On November 8, 2011, before the resolution of her application for ADO, GMA filed the present
Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the
Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and
set aside DOJ Circular No. 41 and WLOs issued against her for allegedly being unconstitutional.25
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition under
the same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise
assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was
docketed as G.R. No. 199046.26
Also, on November 8, 2011, De Lima issued an Order,27 denying GMA's application for an ADO,
based on the following grounds:
First, there appears to be discrepancy on the medical condition of the applicant as stated in her
affidavit, on the other hand, and the medical abstract of the physicians as well as her physician's
statements to Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the other.
xxxx
Second, based on the medical condition of Secretary Ona, there appears to be no urgent and
immediate medical emergency situation for Applicant to seek medical treatment abroad. x x x.
xxxx
Third, Applicant lists several countries as her destination, some of which were not for purposes of
medical consultation, but for attending conferences. XX X.
xxxx
Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her
medical treatment, this means that her return will always depend on said treatment, which, based on
her presentation of her condition, could last indefinitely. x x x.
xxxx
Fifth, X X X X. Applicant has chosen for her destination five (5) countries, namely, Singapore,
Germany, Austria, Spain and Italy, with which the Philippines has no existing extradition treaty. X X
X.
ΧΧΧΧ
IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED. 28
On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State
Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a
Very Urgent Manifestation and Motion29 in G.R. Nos. 199034 and 199046, praying (1) that they be
given a reasonable time to comment on the petitions and the applications for a TRO and/or writ of
preliminary injunction before any action on the same is undertaken by the Court; (2) that the
applications for TRO and/or writ of preliminary injunction be denied for lack of merit, and; (3) that the
petitions be set for oral arguments after the filing of comments thereto.30
On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and
set aside the Order dated November 8, 2011, denying her application for ADO. On the following day,
GMA filed her Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion
dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos.
199034 and 199046, and requiring the respondents to file their comment thereto not later than
November 18, 2011. The Court likewise resolved to issue a TRO in the consolidated petitions,
enjoining the respondents from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-
11-237 dated August 9, 2011, 2011-422 dated September 6, 2011, and 2011-573 dated October 27,
2011, subject to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (₱2,000,000.00) payable to this Court
within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will result
in the automatic lifting of the temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to both of them who will receive
subpoena, orders and other legal processes on their behalf during their absence. The petitioners
shall submit the name of the legal representative, also within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the
petitioners shall inform said embassy or consulate by personal appearance or by phone of their
whereabouts at all times;34
On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the
conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the
following: (1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required
cash bond of Two Million Pesos (₱2,000,000.00);36 (2) certification from the Fiscal and Management
and Budget Office of the Supreme Court, showing that the cash bond is already on file with the
office;37 (3) special powers of attorney executed by the petitioners, appointing their respective
lawyers as their legal representatives; 38 and (4) an undertaking to report to the nearest consular
office in the countries where they will travel.39
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International
Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore.
However, the BI officials at NAIA refused to process their travel documents which ultimately resulted
to them not being able to join their flights.40
On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease
and Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that
the TRO issued by the Court was immediately executory and that openly defying the same is
tantamount to gross disobedience and resistance to a lawful order of the Court."42 Not long after,
Miguel Arroyo followed through with an Urgent Manifestation,43 adopting and repleading all the
allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO,44 praying that the Court reconsider and set aside the TRO issued in the
consolidated petitions until they are duly heard on the merits. In support thereof, they argue that the
requisites for the issuance of a TRO and writ of preliminary injunction were not established by the
petitioners. To begin with, the petitioners failed to present a clear and mistakable right which needs
to be protected by the issuance of a TRO. While the petitioners anchor their right in esse on the right
to travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute. One of the
limitations on the right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-
making powers of the DOJ in order to keep individuals under preliminary investigation within the
jurisdiction of the Philippine criminal justice system. With the presumptive constitutionality of DOJ
Circular No. 41, the petitioners cannot claim that they have a clear and unmistakable right to leave
the country as they are the very subject of the mentioned issuance.45 Moreover, the issuance of a
TRO will effectively render any judgment on the consolidated petitions moot and academic. No
amount of judgment can recompense the irreparable injury that the state is bound to suffer if the
petitioners are permitted to leave the Philippine jurisdiction.46
On November 18, 2011, the Court issued a Resolution,47 or requiring De Lima to show cause why
she should not be disciplinarily dealt with or held in contempt of court for failure to comply with the
TRO. She was likewise ordered to immediately comply with the TRO by allowing the petitioners to
leave the country. At the same time, the Court denied the Consolidated Urgent Motion for
Reconsideration and/or to Lift TRO dated November 16, 2011 filed by the Office of the Solicitor
General.48
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b)
of Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC)
of Pasay City, which was docketed as R-PSY-11-04432-CR49 and raffled to Branch 112. A warrant of
arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TRO.50 They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this
Court. They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the
disposition of the case. The issue therefore on the validity of the assailed WLOs should properly be
raised and threshed out before the RTC of Pasay City where the criminal case against GMA is
pending, to the exclusion of all other courts.51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for
violation of OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the
basis for the issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated
November 21, 2011,52 lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal
of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November
22, 2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of
the oral arguments on December 1, 2011, the parties were required to submit their respective
memoranda.53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 201154 was issued against
Genuinos, among others, after criminal complaints for Malversation, as defined under Article 217 of
the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were
filed against them by the Philippine Amusement and Gaming Corporation (PAGCOR), through its
Director, Eugene Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds
for the film "Baler." This was followed by the filing of another complaint for Plunder under R.A. No.
7080, Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against
the same petitioners, as well as members and incorporators of BIDA Production, Inc. Wildformat,
Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities.
Another complaint was thereafter filed against Efraim and Erwin was filed before the Office of the
Ombudsman for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds intended for the
Philippine Sports Commission directly to the Philippine Amateur Swimming Association, Inc.55 In a
Letter56 dated July 29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through
counsel, requested that the HDO against them be lifted. This plea was however denied in a
Letter57 dated August 1, 2011 which prompted the institution of the present petition by the Genuinos.
In a Resolution58 dated April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034
and 199046.
The Court, after going through the respective memoranda of the parties and their pleadings, sums
up the issues for consideration as follows:
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and
III
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF

CONTEMPT OF COURT.
Ruling of the Court
The Court may exercise its power of

judicial review despite the filing of
information for electoral sabotage
against GMA
It is the respondents' contention that the present petitions should be dismissed for lack of a
justiciable controversy. They argue that the instant petitions had been rendered moot and academic
by (1) the expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated
September 6, 2011;59 (2) the filing of an information for electoral sabotage against GMA,60 and; (3)
the lifting of the WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the
subsequent deletion of his name from the BI watchlist after the COMELEC en banc dismissed the
case for electoral sabotage against him.61
The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which
reads:
instrumentality of the Government.62
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.63
Except for the first requisite, there is no question with respect to the existence of the three (3) other
requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been
unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them
by authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned
issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and academic since
there is no longer any actual case or controversy to resolve following the subsequent filing of an
information for election sabotage against GMA on November 18, 2011 and the lifting of WLO No.
2011-573 against Miguel Arroyo and the deletion of his name from the BI watchlist after the
dismissal of the complaint for electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties
having adverse legal interest; a real and substantial controversy admitting of specific relief."64 When
the issues have been resolved or when the circumstances from which the legal controversy arose no
longer exist, the case is rendered moot and academic. "A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value."65
The Court believes that the supervening events following the filing of the instant petitions, while may
have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues
raised by the petitioners. The Court, after assessing the necessity and the invaluable gain that the
members of the bar, as well as the public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest the lingering constitutional
questions that abound the assailed issuance. This is not a novel occurrence as the Court, in a
number of occasions, took up cases up to its conclusion notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections,66 emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two are
not always the same. There are times when we cannot grant the latter because the issue has been
settled and decision is no longer possible according to the law. But there are also times when
although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved.
Justice demands that we act then, not only for the vindication of the outraged right, though gone, but
also for the guidance of and as a restraint upon the future.67
In Prof. David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of
Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces of the
Philippines and the Philippine National Police to carry all necessary actions to suppress acts of
terrorism and lawless violence, notwithstanding the issuance of PP 1021 lifting both issuances. The
Court articulated, thus:
The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.69 (Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the Court's exercise of its
power of judicial review. The petitioners impute the respondents of violating their constitutional right
to travel through the enforcement of DOJ Circular No. 41. They claim that the issuance
unnecessarily places a restraint on the right to travel even in the absence of the grounds provided in
the Constitution.
There is also no question that the instant petitions involved a matter of public interest as the
petitioners are not alone in this predicament and there can be several more in the future who may be
similarly situated. It is not farfetched that a similar challenge to the constitutionality of DOJ Circular
No. 41 will recur considering the thousands of names listed in the watch list of the DOJ, who may
brave to question the supposed illegality of the issuance. Thus, it is in the interest of the public, as
well as for the education of the members of the bench and the bar, that this Court takes up the
instant petitions and resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and

supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of
the nation; it is deemed written in every statute and contract.70 If a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the
compendium of the guaranteed rights of individuals, as well as the powers granted to and
restrictions imposed on government officials and instrumentalities. It is that lone unifying code, an
inviolable authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of
Rights contained in Article III. In particular, Section 1 thereof provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever
he pleases, for each is given an equal right to enjoy his liberties, with no one superior over another.
Hence, the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his
liberties. Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license
to act according to one's will. It is subject to the far more overriding demands and requirements of
the greater number."71
It is therefore reasonable that in order to achieve communal peace and public welfare, calculated
limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions,
the Constitution itself has provided for exceptions and restrictions to balance the free exercise of
rights with the equally important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable
limitation to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs.
Drilon,[[72]] it was defined as the inherent and plenary power in the State which enables it to prohibit
all things hurtful to the comfort, safety, and welfare of society. It is rooted in the conception that men
in organizing the state and imposing upon its government limitations to safeguard constitutional
rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare.73
Still, it must be underscored that in a constitutional government like ours, liberty is the rule and
restraint the exception.74 Thus, restrictions in the exercise of fundamental liberties are heavily
guarded against so that they may not unreasonably interfere with the free exercise of constitutional
guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of
law.75 It is part and parcel of the guarantee of freedom of movement that the Constitution affords its
citizen. Pertinently, Section 6, Article III of the Constitution provides:
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety or public health, as maybe provided by law.
Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever
he pleases and to travel wherever he wills.76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the
Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes
and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said
subjects. It was held that regardless of the mayor's laudable intentions, no person may compel
another to change his residence without being expressly authorized by law or regulation.
It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and
inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may
be impaired only in the interest of national security, public safety or public health, as may be
provided by law. In Silverio vs. Court of Appeals,78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only
on the basis of "national security, public safety, or public health" and "as may be provided by
law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin
G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was
a reaction to the ban on international travel imposed under the previous regime when there was a
Travel Processing Center, which issued certificates of eligibility to travel upon application of an
interested party.79 (Emphasis ours)
Clearly, under the provision, there are only three considerations that may permit a restriction on the
right to travel: national security, public safety or public health. As a further requirement, there must
be an explicit provision of statutory law or the Rules of Court80 providing for the impairment. The
requirement for a legislative enactment was purposely added to prevent inordinate restraints on the
person's right to travel by administrative officials who may be tempted to wield authority under the
guise of national security, public safety or public health. This is in keeping with the principle that ours
is a government of laws and not of men and also with the canon that provisions of law limiting the
enjoyment of liberty should be construed against the government and in favor of the individual.81
The necessity of a law before a curtailment in the freedom of movement may be permitted is
apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr.
Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and
changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the
phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired
on order of a court or without the order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any public officer.82
It is well to remember that under the 1973 Constitution, the right to travel is compounded with the
liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired except upon
lawful order of the court, or when necessary in the interest of national security, public safety, or
public health. (Emphasis ours)
The provision, however, proved inadequate to afford protection to ordinary citizens who were
subjected to "hamletting" under the Marcos regime.83 Realizing the loophole in the provision, the
members of the Constitutional Commission agreed that a safeguard must be incorporated in the
provision in order to avoid this unwanted consequence. Thus, the Commission meticulously framed
the subject provision in such a manner that the right cannot be subjected to the whims of any
administrative officer. In addressing the loophole, they found that requiring the authority of a law
most viable in preventing unnecessary intrusion in the freedom of movement, viz.:
MR. NOLLEDO. X X X X
My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of
abode shall not be impaired except upon lawful order of the court or - underscoring the word "or" -
when necessary in the interest of national security, public safety or public health. So, in the first part,
there is the word "court"; in the second part, it seems that the question rises as to who determines
whether it is in the interest of national security, public safety, or public health. May it be determined
merely by administrative authorities?
FR. BERNAS. The understanding we have of this is that, yes, it may be determined by
administrative authorities provided that they act, according to line 9, within the limits prescribed by
law. For instance when this thing came up; what was in mind were passport Officers. If they want to
deny a passport on the first instance, do they have to go to court? The position is, they may deny a
passport provided that the denial is based on the limits prescribed by law. The phrase "within the
limits prescribed by law" is something which is added here. That did not exist in the old provision.84
During the discussions, however, the Commission realized the necessity of separating the concept
of liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct
safeguards were laid down which will protect the liberty of abode and the right to travel separately,
viz.:
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang
walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa
ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang
"hamletting" upon lawful order of the court. X X X.
xxxx
MR. RODRIGO. Aside from that, this includes the right to travel?
FR. BERNAS. Yes.
MR. RODRIGO. But another right is involved here and that is to travel?
SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty
of abode and or changing the same from the right to travel, because they may necessitate different
provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
xxxx
RESUMPTION OF SESSION
xxxx
THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas is

recognized
FR. BERNAS. The proposal is amended to read: "The liberty of abode and of changing the same
within the limits prescribed by law, shall not be impaired except upon lawful order of the court.
NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF
NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as
amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is
approved.85
It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be impaired by a law that concerns national
security, public safety or public health. Therefore, when the exigencies of times call for a limitation
on the right to travel, the Congress must respond to the need by explicitly providing for the restriction
in a law. This is in deference to the primacy of the right to travel, being a constitutionally-protected
right and not simply a statutory right, that it can only be curtailed by a legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,86 the Court
upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of
Labor and Employment, which temporarily suspended the deployment of domestic and household
workers abroad. The measure was taken in response to escalating number of female workers
abroad who were subjected to exploitative working conditions, with some even reported physical and
personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor
Code, particularly, the policy to "afford protection to labor." Public safety considerations justified the
restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court
Administrator (OCA) vs. Wilma Salvacion P. Heusdens,87 the Court enumerated the statutes which
specifically provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or (R.A.] No. 9372. The law restricts the right to travel of an
individual charged with the crime of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or
withdraw, a passport of a Filipino citizen.
3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the [BI], in order to manage migration and curb trafficking in persons, issued Memorandum
Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers
with fraudulent travel documents, doubtful purpose of travel, including possible victims of human
trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A.
No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA)
may refuse to issue deployment permit to a specific country that effectively prevents our migrant
workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement
of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption
Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from
abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is
harmful, detrimental, or prejudicial to the child."88
In any case, when there is a dilemma between an individual claiming the exercise of a constitutional
right vis-à-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be
resolved in favor of the free exercise of the right, absent any explicit provision of law to the contrary.
The issuance of DOJ Circular No. 41

has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which
the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice to curtail the exercise of the right to
travel, in the interest of national security, public safety or public health. As it is, the only ground of the
former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary
investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for
electoral sabotage against them.89
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the
scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the provisions of an enabling law which the
former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the
"Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to
the agency's rulemaking powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O.
No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rulemaking powers, among others. It is

the power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the doctrine of non-delegability and separability of powers."90 In
the exercise of this power, the rules and regulations that administrative agencies promulgate should
be within the scope of the statutory authority granted by the legislature to the administrative agency.
It is required that the regulation be germane to the objects and purposes of the law, and be not in
contradiction to, but in conformity with, the standards prescribed by law. They must conform to and
be consistent with the provisions of the enabling statute in order for such rule or regulation to be
valid. 91
It is, however, important to stress that before there can even be a valid administrative issuance,
there must first be a showing that the delegation of legislative power is itself valid. It is valid only if
there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the performance of his
functions.92
A painstaking examination of the provisions being relied upon by the former DOJ Secretary will
disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which
effectively restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3,
Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. It is the declared policy of the State to provide the government with
a principal law agency which shall be both its legal counsel and prosecution arm; administer the
criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
system; implement the laws on the admission and stay of aliens, citizenship, land titling system, and
settlement of land problems involving small landowners and member of indigenous cultural
minorities, and provide free legal services to indigent members of the society.
xxxx
Section 3. Powers and Functions.- to accomplish its mandate, the Department shall have the
following powers and functions:
(1) Act as principal law agency of the government and as legal counsel and representative thereof,
whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;
xxxx
(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including government-
owned and controlled corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are mere general provisions designed to
lay down the purposes of the enactment and the broad enumeration of the powers and functions of
the DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the
language of the provision itself does not lend to that stretched construction. To be specific, Section 1
is simply a declaration of policy, the essence of the law, which provides for the statement of the
guiding principle, the purpose and the necessity for the enactment. The declaration of policy is most
useful in statutory construction as an aid in the interpretation of the meaning of the substantive
provisions of the law. It is preliminary to the substantive portions of the law and certainly not the part
in which the more significant and particular mandates are contained. The suggestion of the former
DOJ Secretary that the basis of the issuance of DOJ Circular No. 41 is contained in the declaration
of policy of E.O. No. 292 not only defeats logic but also the basic style of drafting a decent piece of
legislation because it supposes that the authors of the law included the operative and substantive
provisions in the declaration of policy when its objective is merely to introduce and highlight the
purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the
substantive portions of the act. Such provisions are available for clarification of ambiguous
substantive portions of the act, but may not be used to create ambiguity in other substantive
provisions."93
In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to restrict the
constitutional right to travel. There is even no mention of the exigencies stated in the Constitution
that will justify the impairment. The provision simply grants the DOJ the power to investigate the
commission of crimes and prosecute offenders, which are basically the functions of the agency.
However, it does not carry with it the power to indiscriminately devise all means it deems proper in
performing its functions without regard to constitutionally-protected rights. The curtailment of a
fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned
provision of the law. Any impairment or restriction in the exercise of a constitutional right must be
clear, categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules and regulations may be
promulgated by an administrative body, as well as with respect to what fields are subject to
regulation by it. It may not make rules and regulations which are inconsistent with the provisions of
the Constitution or a statute, particularly the statute it is administering or which created it, or which
are in derogation of, or defeat, the purpose of a statute. 94
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply
provides for the types of issuances that administrative agencies, in general, may issue. It does not
speak of any authority or power but rather a mere clarification on the nature of the issuances that
may be issued by a secretary or head of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances. The administrative issuances of Secretaries and
heads of bureaus, offices and agencies shall be in the form of circulars or orders.
(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures
promulgated pursuant to law, applicable to individuals and organizations outside the Government
and designed to supplement provisions of the law or to provide means for carrying them out,
including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning
specific matters including assignments, detail and transfer of personnel, for observance or
compliance by all concerned. (Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of
the former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41.
The memorandum particularly made reference to Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:
(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances,
the promulgation of which is expressly vested by law in the President relative to matters under the
jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to the
approved programs of governments:
(3) Promulgate rules and regulations necessary to carry out department objectives, policies,
functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of the
offices under the Secretary and for proper execution of the laws relative thereto. These
issuances shall not prescribe penalties for their violation, except when expressly authorized
by law;
xxxx
(9) Perform such other functions as may be provided by law. (Emphasis Ours)
It is indisputable that the secretaries of government agencies have the power to promulgate rules
and regulations that will aid in the performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the authority of a law. This is,
however, different from the delegated legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASIS) et al. vs.
Hon. Purisima et l.95 is illuminating:
The inherent power of the Executive to adopt rules and regulations to execute or implement the law
is different from the delegated legislative power to prescribe rules. The inherent power of the
Executive to adopt rules to execute the law does not require any legislative standards for its exercise
while the delegated legislative power requires sufficient legislative standards for its exercise.
xxxx
Whether the rule-making power by the Executive is a delegated legislative power or an inherent
Executive power depends on the nature of the rule-making power involved. If the rule-making power
is inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the
Executive is a delegated legislative power. In such event, the delegated power can be exercised
only if sufficient standards are prescribed in the law delegating the power.
If the rules are issued by the President in implementation or execution of self-executory

constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power. X X X. The rule is that the President can execute the law without any
delegation of power from the legislature. Otherwise, the President becomes a mere figure-head and
not the sole Executive of the Government.96
The questioned circular does not come under the inherent power of the executive department to
adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As
such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself,
conferring the expressed authority to the concerned agency to promulgate rules. On its own, the
DOJ cannot make rules, its authority being confined to execution of laws. This is the import of the
terms "when expressly provided by law" or "as may be provided by law" stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the
necessary details in carrying into effect the law as enacted.97 Without a clear mandate of an existing
law, an administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must
derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not
pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the
existence of the enabling law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not obliterate the lack of authority of the
DOJ to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ
Circular No. 41, but the end will not justify the means. To sacrifice individual liberties because of a
perceived good is disastrous to democracy. In Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform,98 the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is
also necessary that the means employed to pursue it be in keeping with the Constitution. Mere
expediency will not excuse constitutional shortcuts. There is no question that not even the strongest
moral conviction or the most urgent public need, subject only to a few notable exceptions, will
excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a
right guaranteed under Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right.99
The DOJ would however insist that the resulting infringement of liberty is merely incidental, together
with the consequent inconvenience, hardship or loss to the person being subjected to the restriction
and that the ultimate objective is to preserve the investigative powers of the DOJ and public
order.100 It posits that the issuance ensures the presence within the country of the respondents during
the preliminary investigation.101 Be that as it may, no objective will ever suffice to legitimize
desecration of a fundamental right. To relegate the intrusion as negligible in view of the supposed
gains is to undermine the inviolable nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its
zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and
justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes
precedence over the right of the State to prosecute, and when weighed against each other, the
scales of justice tilt towards the former. 102 Thus, in Allado vs. Diokno,103 the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people from vicious acts which
endanger the proper administration of justice; hence, the State has every right to prosecute and
punish violators of the law. This is essential for its self- preservation, nay, its very existence. But this
does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is
not a carte blanche for government agents to defy and disregard the rights of its citizens under the
Constitution. 104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the
petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel,
especially when the risk of flight is distinctly high will surely impede the efficient and effective
operation of the justice system. The absence of the petitioners, it asseverates, would mean that the
farthest criminal proceeding they could go would be the filing of the criminal information since they
cannot be arraigned in absentia.105
The predicament of the DOJ is understandable yet untenable for relying on grounds other what is
permitted within the confines of its own power and the nature of preliminary investigation itself. The
Court, in Paderanga vs. Drilon,106 made a clarification on the nature of a preliminary investigation,
thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether

there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and should be
held for trial. X X X A preliminary investigation is not the occasion for the full and exhaustive display
of the parties' evidence; it is for the presentation of such evidence only as may engender a well
grounded belief that an offense has been committed and that the accused is probably guilty
thereof.107
It bears emphasizing that the conduct of a preliminary investigation is an implement of due process
which essentially benefits the accused as it accords an opportunity for the presentation of his side
with regard to the accusation.108 The accused may, however, opt to waive his presence in the
preliminary investigation. In any case, whether the accused responds to a subpoena, the
investigating prosecutor shall resolve the complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the accused is not
necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive
his presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall
be bound by the determination of the prosecutor on the presence of probable cause and he cannot
claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular
No. 41 on the ground that it is necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law granting it the power to compel the
attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under
E.O. No. 292. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to
embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be
able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not
have; it is a usurpation of function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the
DOJ of empowering itself under the pretext of dire exigency or urgent necessity. This action runs
afoul the separation of powers between the three branches of the government and cannot be
upheld. Even the Supreme Court, in the exercise of its power to promulgate rules is limited in that
the same shall not diminish, increase, or modify substantive rights.109 This should have cautioned
the DOJ, which is only one of the many agencies of the executive branch, to be more scrutinizing in
its actions especially when they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to
travel were found reasonable, i.e. New York v. O'Neill,110 Kwong vs. Presidential Commission on
Good Government111 and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the
reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate
authority since the Court never ruled on the constitutionality of the authority of the PCGG to issue
HDOs in the said case. On the contrary, there was an implied recognition of the validity of the
PCGG's Rules and Regulations as the petitioners therein even referred to its provisions to challenge
the PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the constitutionality of Section 2 of the PCGG
Rules and Regulations but only questioned the agency's nonobservance of the rules particularly on
the lifting of HDOs. This is strikingly different from the instant case where the main issue is the
constitutionality of the authority of the DOJ Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the
said case, the respondent therein questioned the constitutionality of a Florida statute entitled
"Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings," under which authority a judge of the Court of General Sessions, New York County
requested the Circuit Court of Dade County, Florida, where he was at that time, that he be given into
the custody of New York authorities and be transported to New York to testify in a grand jury
proceeding. The US Supreme Court upheld the constitutionality of the law, ruling that every citizen,
when properly summoned, has the obligation to give testimony and the same will not amount to
violation of the freedom to travel but, at most, a mere temporary interference. The clear deviation of
the instant case from New York is that in the latter case there is a law specifically enacted to require
the attendance of the respondent to court proceedings to give his testimony, whenever it is needed.
Also, after the respondent fulfils his obligation to give testimony, he is absolutely free to return in the
state where he was found or to his state of residence, at the expense of the requesting state. In
contrast, DOJ Circular No. 41 does not have an enabling law where it could have derived its
authority to interfere with the exercise of the right to travel. Further, the respondent is subjected to
continuing restraint in his right to travel as he is not allowed to go until he is given, if he will ever be
given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular

No. 41 under the guise of police
power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police power
pertains to the "state authority to enact legislation that may interfere with personal liberty or property
in order to promote the general welfare."112 "It may be said to be that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of
society."113 Verily, the exercise of this power is primarily lodged with the legislature but may be
wielded by the President and administrative boards, as well as the lawmaking bodies on all
municipal levels, including the barangay, by virtue of a valid delegation of power. 114
It bears noting, however, that police power may only be validly exercised if (a) the interests of the
public generally, as distinguished from those of a particular class, require the interference of the
State, and (b) the means employed are reasonably necessary to the attainment of the object sought
to be accomplished and not unduly oppressive upon individuals.115
On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it
claims to be exercising the same as the alter ego of the President, it must first establish the
presence of a definite legislative enactment evidencing the delegation of power from its principal.
This, the DOJ failed to do. There is likewise no showing that the curtailment of the right to travel
imposed by DOJ Circular No. 41 was reasonably necessary in order for it to perform its investigatory
duties.
In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse actions that violate the Constitution. Any act,
however noble its intentions, is void if it violates the Constitution.117 In the clear language of the
Constitution, it is only in the interest of national security, public safety and public health that the right
to travel may be impaired. None one of the mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41.
DOJ Circular No. 41 transcends

constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that
render it invalid. The apparent vagueness of the circular as to the distinction between a HDO and
WLO is violative of the due process clause. An act that is vague "violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid and leaves
law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle."118 Here, the distinction is significant as it will inform the respondents of the
grounds, effects and the measures they may take to contest the issuance against them. Verily, there
must be a standard by which a HDO or WLO may be issued, particularly against those whose cases
are still under preliminary investigation, since at that stage there is yet no criminal information
against them which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from
the DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of
the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court
Administrator, clearly state that "[HDO) shall be issued only in criminal cases within the exclusive
jurisdiction of the [RTCs)," said circulars are, however, silent with respect to cases falling within the
jurisdiction of courts below the RTC as well as those pending determination by government
prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the
supposed inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which
is SC Circular No. 3997.119 It is the DOJ's impression that with the silence of the circular with regard
to the issuance of HDOs in cases falling within the jurisdiction of the MTC and those still pending
investigation, it can take the initiative in filling in the deficiency. It is doubtful, however, that the DOJ
Secretary may undertake such action since the issuance of HDOs is an exercise of this Court's
inherent power "to preserve and to maintain the effectiveness of its jurisdiction over the case and the
person of the accused."120 It is an exercise of judicial power which belongs to the Court alone, and
which the DOJ, even as the principal law agency of the government, does not have the authority to
wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No.
41 is not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate
1awp++i1
issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount
to an infringement on the right and liberty of an individual to travel. Contrary to the understanding of
the DOJ, the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases
within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the
jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term
"only." The reason lies in seeking equilibrium between the state's interest over the prosecution of the
case considering the gravity of the offense involved and the individual's exercise of his right to travel.
Thus, the circular permits the intrusion on the right to travel only when the criminal case filed against
the individual is within the exclusive jurisdiction of the RTC, or those that pertains to more serious
crimes or offenses that are punishable with imprisonment of more than six years. The exclusion of
criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain to less
serious offenses which is not commensurate with the curtailment of a fundamental right. Much less
is the reason to impose restraint on the right to travel of respondents of criminal cases still pending
investigation since at that stage no information has yet been filed in court against them. It is for these
reasons that Circular No. 3997 mandated that HDO may only be issued in criminal cases filed with
the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which
have been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ
Secretary may issue HDO against the accused in criminal cases within the jurisdiction of the
MTC121 and against defendants, respondents and witnesses in labor or administrative cases,122 no
matter how unwilling they may be. He may also issue WLO against accused in criminal cases
pending before the RTC,123 therefore making himself in equal footing with the RTC, which is
authorized by law to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO
against respondents in criminal cases pending preliminary investigation, petition for review or motion
for reconsideration before the DOJ.124 More striking is the authority of the DOJ Secretary to issue a
HDO or WLO motu proprio, even in the absence of the grounds stated in the issuance if he deems
necessary in the interest of national security, public safety or public health.125
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as
it remains effective even after the lapse of its validity period as long as the DOJ Secretary does not
approve the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint
in his mobility as he awaits a favorable indorsement of the government agency that requested for the
issuance of the HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO
against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to
permit a person subject of HDO or WLO to travel through the issuance of an ADO upon showing of
"exceptional reasons" to grant the same. The grant, however, is entirely dependent on the sole
discretion of the DOJ Secretary based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its
assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO
can take the place of a law that authorizes the restraint in the right to travel only in the interest of
national security, public safety or public health. The DOJ Secretary has recognized himself as the
sole authority in the issuance and cancellation of HDO or WLO and in the determination of the
sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of
persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to
the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid for an executive officer to
impose restriction or exercise discretion that unreasonably impair an individual's right to travel-- thus,
the addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the
Court underscored that this phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing Center,
which issued certificates of eligibility to travel upon application of an interested party.126 The qualifying
phrase is not a mere innocuous appendage. It secures the individual the absolute and free exercise
of his right to travel at all times unless the more paramount considerations of national security, public
safety and public health call for a temporary interference, but always under the authority of a law.
The subject WLOs and the restraint

on the right to travel.
In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the
wordings thereof. For better illustration, the said WLOs are hereby reproduced as follows:
WLO No. ASM-11-237127

(Watchlist)
In re: GLORIA M. MACAPAGAL-ARROYO
x-----------------------x
ORDER
On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued an order
docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the
name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the

Department of Justice in connection with the following cases:
Docket No. Title of the Case Offense/s Charged
XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder

Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or
Macapagal-Arroyo Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of
the Code of Ethical Standards
for Public Officials, and
Qualified Theft
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or
Macapagal-Arroyo Jocelyn Illegal use of Public Funds,
"Joc-Joc" Bolante, Ibarra Graft and Corruption,
Poliquit et al. Violation of The Omnibus
Election Code. Violation of
Qualified Theft
Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules
and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders) dated 25 May 2010, we order the inclusion of the
name GLORIA M. MACAPAGAL-ARROYO in the Watchlist.
This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.
The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this
Order.
Notify the Computer Section.
SO ORDERED.
09 August 2011 (Emphasis ours)
Watchlist Order No. 2011-422128
In re: Issuance of Watchlist

Order against MA. GLORIA M.
MACAPAGAL-ARROYO
x-----------------------x
AMENDED ORDER
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in

connection with the following cases:
Docket No. Title of the Case Offense/s Charged
XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder

Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of
Qualified Theft
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo Jocelyn Illegal use of Public Funds,
"Joc-Joc" Bolante, Ibarra Graft and Corruption,
Poliquit et al. Violation of The Omnibus
Election Code. Violation of
Qualified Theft
Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 Consolidated
Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders,
Watchlist Orders, and Allow Departure Orders), the undersigned hereby motu proprio issues a
Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau
of Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.
Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance
unless sooner terminated or extended.
SO ORDERED.
City of Manila, September 6, 2011. (Emphasis ours)
Watchlist Order (WLO) No. 2011- 573129
IN RE: Issuance of WLO against

BENJAMIN ABALOS, SR. et al.
x-----------------------x
ORDER
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated Rules
and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders), after careful evaluation, finds the Application for the Issuance
of WLO against the following meritorious;
xxxx
12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives

Quezon City
xxxx
Ground for WLO Issuance: Pendency of the case, entitled "DOJ-
COMELEC Fact Finding Committee v.
Benjamin Abalos Sr., et al.," for Electoral
Sabotage/Omnibus Election Code
docketed as DOJ-COMELEC Case No.
001-2011
1. MA. GLORIA M. MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives Quezon City
2. JOSE MIGUEL TUASON ARROYO
Address: L.T.A. Bldg. 118 Perea St. Makati City
xxxx
Ground for WLO Issuance: Pendency of the case, entitled "Aquilino

Pimentel III v. Gloria Macapagal-Arroyo, el
Al.." for Electoral Sabotage docketed as
DOJ-COMELEC Case No. 002-2011.
of Immigration's Watchlist, the names of the above-named persons.
This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner
terminated or otherwise extended. 1âw phi 1
SO ORDERED.
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently
states:
Hold Departure Order (HDO)

No. 2011- 64130
In re: Issuance of HDO against

EFRAIM C. GENUINO, ET AL.
x-----------------------x
ORDER
After a careful evaluation of the application, including the documents attached thereto, for the
issuance of Hold Departure Order (HDO) against the above-named persons filed pursuant to
this Department's Circular (D.C.) No. 41 (Consolidated Rules and Regulations Governing the
Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure
Orders) dated May 25, 2010, we find the application meritorious.
of Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE,
ERWIN F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C.
FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO
SORIANO, JR., AND JOHNNY G. TAN.
Name: EFRAIM C. GENUINO
Nationality: Filipino
Last known address: No. 42 Lapu Lapu Street,
Magallanes Village, Makati City
Ground for HDO Issuance: Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Details of the Case: Plending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before
the Office of the Ombudsman
(Case No. CPL-C-11-1297)
Pending before the National
of Justice (I.S. No. XVI-INV-11G-
00248)
Name: SHERYLL F. GENUINO-SEE

Last known address: No. 32-a Pasco Parkview, Makati

City

Act, Plunder
Details of the case: Pending before the National

of Justice (I.S. No. XVI-INV-11G-
00248)
Name: ERWIN F. GENUINO
Last known address: No. 5 J.P. Rizal Extension,

COMEMBO, Makati City

Act, Plunder
Details of the Case: Pending before the National
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before
the National Prosecution Service,
Department of Justice (I.S. No.
XVI-INV-11G-00248)
xxxx
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner
terminated.
SO ORDERED. (Emphasis ours)
On its face, the language of the foregoing issuances does not contain an explicit restraint on the
right to travel. The issuances seemed to be a mere directive from to the BI officials to include the
named individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a
common reference to DOJ Circular No. 41, where the authority to issue the same apparently
emanates, and from which the restriction on the right to travel can be traced. Section 5 thereof
provides, thus:
Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the HDO/WLO issued
pursuant to this Circular, the following shall apply:
(a) The HDO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the HDO as provided for in the preceding section has
already expired;
2. When the accused subject of the HDO has been allowed to leave the country
during the pendency of the case, or has been acquitted of the charge, or the case
in which the warrant/order of arrest was issued has been dismissed or the
warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of the
government wherein the presence of the alien subject of the HDO/WLO has been
dismissed by the court or by appropriate government agency, or the alien has been
discharged as a witness therein, or the alien has been allowed to leave the country:
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding section has
already expired;
2. When the accused subject of the WLO has been allowed by the court to
leave the country during the pendency of the case, or has been acquitted of the
charge; and
3. When the preliminary investigation is terminated, or when the petition for
review, or motion for reconsideration has been denied and/or dismissed.
xxxx
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that
under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the
country from the court during the pendency of the case against him. Further, in 5 (b) (3), he may not
leave unless the preliminary investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or
WLO cannot leave the country unless he obtains an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to
this Circular who intends, for some exceptional reasons, to leave the country may, upon
application under oath with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and
containing an undertaking to immediately report to the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or appropriate government
office where the case upon which the issued HDO/WLO was based is pending, or
from the investigating prosecutor in charge of the subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only
plausible conclusion that can be made is that its mere issuance operates as a restraint on the right
to travel. To make it even more difficult, the individual will need to cite an exceptional reason to
justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that
they are one and the same or, at the very least, complementary such that whatever is not covered in
Section 1,131 which pertains to the issuance of HDO, can conveniently fall under Section 2,132 which
calls for the issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41
which authorizes the Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in
the interest of national security, public safety or public health. With this all-encompassing provision,
there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving the country
under the guise of national security, public safety or public health.
The exceptions to the right to travel

are limited to those stated in Section
6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly impaired.133 It cites that this Court has its own
administrative issuances restricting travel of its employees and that even lower courts may issue
HDO even on grounds outside of what is stated in the Constitution. 134
The argument fails to persuade.

It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a
HDO against an accused in a criminal case so that he may be dealt with in accordance with law.135 It
does not require legislative conferment or constitutional recognition; it co-exists with the grant of
judicial power. In Defensor-Santiago vs. Vasquez, 136 the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the court, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of their granted powers; and include
the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. 137
The inherent powers of the courts are essential in upholding its integrity and largely beneficial in
keeping the people's faith in the institution by ensuring that it has the power and the means to
enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division,
explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides
that the Supreme Court shall have administrative supervision over all courts and the
personnel thereof. This provision empowers the Court to oversee all matters relating to the
effective supervision and management of all courts and personnel under it. Recognizing this
mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986,
considers the Supreme Court exempt and with authority to promulgate its own rules and regulations
on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These rules
and regulations, to which one submits himself or herself, have been issued to guide the government
officers and employees in the efficient performance of their obligations. When one becomes a public
servant, he or she assumes certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be prejudiced. 138
It is therefore by virtue of its administrative supervision over all courts and personnel that this Court
came out with OCA Circular No. 492003, which provided for the guidelines that must be observed by
employees of the judiciary seeking to travel abroad. Specifically, they are required to secure a leave
of absence for the purpose of foreign travel from this Court through the Chief Justice and the
Chairmen of the Divisions, or from the Office of the Court Administrator, as the case maybe. This is
"to ensure management of court dockets and to avoid disruption in the administration of justice."139
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the
employee's leave for purpose of foreign travel which is necessary for the orderly administration of
justice. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is to govern
or direct according to rule.140 This regulation comes as a necessary consequence of the individual's
employment in the judiciary, as part and parcel of his contract in joining the institution. For, if the
members of the judiciary are at liberty to go on leave any time, the dispensation of justice will be
seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the
intricacies in the administration of justice. At any rate, the concerned employee is not prevented from
pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be ready to
suffer the consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with respect to
the requirement for leave application of employees in the government service seeking to travel
abroad. The Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and
availment guidelines for all government employees, except those who are covered by special laws.
The filing of application for leave is required for purposes of orderly personnel administration. In
pursuing foreign travel plans, a government employee must secure an approved leave of absence
from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No.
26 dated July 31, 1986, provided the procedure in the disposition of requests of government officials
and employees for authority to travel abroad. The provisions of this issuance were later clarified in
the Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005,
E.O. No. 459 was issued, streamlining the procedure in the disposition of requests of government
officials and employees for authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees seeking
authority to travel abroad shall henceforth seek approval from their respective heads of
agencies, regardless of the length of their travel and the number of delegates concerned. For the
purpose of this paragraph, heads of agencies refer to the Department Secretaries or their
equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was deemed necessary "to promote
efficiency and economy in the government service."141 The objective was clearly administrative
efficiency so that government employees will continue to render public services unless they are
given approval to take a leave of absence in which case they can freely exercise their right to travel.
It should never be interpreted as an exception to the right to travel since the government employee
during his approved leave of absence can travel wherever he wants, locally or abroad. This is no
different from the leave application requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on the right to travel of the
subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have
inherent power to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited
to the powers expressly granted to it by law and may not extend the same on its own accord or by
any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but
the solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights are determined and all public authority administered."142 Any
law or issuance, therefore, must not contradict the language of the fundamental law of the land;
otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on
constitutionally-protected rights without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep
constitutional boundaries and skirt the prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against
the state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless
innocent individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As
emphatically pronounced in Secretary of National Defense vs. Manalo, et al., 143 "the constitution is
an overarching sky that covers all in its protection. It affords protection to citizens without distinction.
Even the most despicable person deserves the same respect in the enjoyment of his rights as the
upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the
issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact
the necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling
on constitutionally-protected rights. Without a valid legislation, the DOJ's actions will perpetually be
met with legal hurdles to the detriment of the due administration of justice. The challenge therefore is
for the legislature to address this problem in the form of a legislation that will identify permissible
intrusions in the right to travel. Unless this is done, the government will continuously be confronted
with questions on the legality of their actions to the detriment of the implementation of government
processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in
the performance of its duties. This can be accomplished by expediency in the assessment of
complaints filed before its office and in the prompt filing of information in court should there be an
affirmative finding of probable cause so that it may legally request for the issuance of HDO and hold
accused for trial. Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient
and effective performance of its prosecutorial duties.
The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by
suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the
country. While this is a legitimate concern, it bears stressing that the government is not completely
powerless or incapable of preventing their departure or having them answer charges that may be
subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out
that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly
grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to
issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances
mentioned in Section 4144 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum
Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act
of 2003, as amended by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012,
which authorizes the BI to hold the departure of suspected traffickers or trafficked individuals. He
also noted that the Commissioner of BI has the authority to issue a HDO against a foreigner subject
of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr.
Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary
warrant of arrest offers a promising solution to this quandary. This, the Court can do in recognition of
the fact that laws and rules of procedure should evolve as the present circumstances require.
Contempt charge against respondent

De Lima
It is well to remember that on November 18, 2011, a Resolution145 was issued requiring De Lima to
show cause why she should not be disciplinarily dealt or be held in contempt for failure to comply
with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full discussion that it rightfully
deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the
interest of fairness that there be a complete and exhaustive discussion on the matter since it entails
the imposition of penalty that bears upon the fitness of the respondent as a member of the legal
profession. The Court, therefore, finds it proper to deliberate and resolve the charge of contempt
against De Lima in a separate proceeding that could accommodate a full opportunity for her to
present her case and provide a better occasion for the Court to deliberate on her alleged
disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby
declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated
November 28, 2011, which required respondent Leila De Lima to show cause why she should not be
cited in contempt, as a separate petition.
SO ORDERED.
MALACAÑAN PALACE
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
EXECUTIVE ORDER No. 2
OPERATIONALIZING IN THE EXECUTIVE BRANCH THE PEOPLE’S CONSTITUTIONAL RIGHT

TO INFORMATION AND THE STATE POLICIES TO FULL PUBLIC DISCLOSURE AND
TRANSPARENCY IN THE PUBLIC SERVICE AND PROVIDING GUIDELINES THEREFOR
WHEREAS, pursuant to Article 28, Article II of the 1987 Constitution, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest, subject to
reasonable conditions prescribed by law;
WHEREAS, Section 7, Article III of the Constitution guarantees the right of the people to information
on matters of public concern;
WHEREAS, the incorporation of this right in the Constitution is a recognition of the fundamental role
of free and open exchange of information in a democracy, meant to enhance transparency and
accountability in government official acts, transactions, or decisions;
WHEREAS, the Executive Branch recognizes the urgent need to operationalize these Constitutional
provisions;
WHEREAS, the President, under Section 17, Article VII of the Constitution, has control over all
executive departments, bureaus and offices, and the duty to ensure that the laws be faithfully
executed;
WHEREAS, the Data Privacy Act of 2012 (R.A. 10173), including its implementing Rules and
Regulations, strengthens the fundamental human right of privacy, and of communication while
ensuring the free flow of information to promote innovation and growth;
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of the
powers vested in me by the Constitution and existing laws, do hereby order:
SECTION 1. Definition. For the purpose of this Executive Order, the following terms shall mean:
(a) “Information” shall mean any records, documents, papers, reports, letters, contracts,
minutes and transcripts of official meetings, maps, books, photographs, data, research
materials, films, sound and video recording, magnetic or other tapes, electronic data,
computer stored data, any other like or similar data or materials recorded, stored or archived
in whatever format, whether offline or online, which are made, received, or kept in or under
the control and custody of any government office pursuant to law, executive order, and rules
and regulations or in connection with the performance or transaction of official business by
any government office.
(b) “Official record/records” shall refer to information produced or received by a public officer
or employee, or by a government office in an official capacity or pursuant to a public function
or duty.
(c) “Public record/records” shall include information required by laws, executive orders, rules,
or regulations to be entered, kept and made publicly available by a government office.
SECTION 2. Coverage. This order shall cover all government offices under the Executive Branch,
including but not limited to the national government and all its offices, departments, bureaus, offices,
and instrumentalities, including government-owned or -controlled corporations, and state universities
and colleges. Local government units (LGUs) are encouraged to observe and be guided by this
Order.
SECTION 3. Access to information. Every Filipino shall have access to information, official records,
public records and to documents and papers pertaining to official acts, transactions or decisions, as
well as to government research data used as basis for policy development.
SECTION 4. Exception. Access to information shall be denied when the information falls under any
of the exceptions enshrined in the Constitution, existing law or jurisprudence.
The Department of Justice and the Office of the Solicitor General are hereby directed to prepare an
inventory of such exceptions and submit the same to the Office of the President within thirty (30)
calendar days from the date of effectivity of this Order.
The Office of the President shall thereafter, immediately circularize the inventory of exceptions for
the guidance of all government offices and instrumentalities covered by this Order and the general
public.
Said inventory of exceptions shall periodically be updated to properly reflect any change in existing
law and jurisprudence and the Department of Justice and the Office of the Solicitor General are
directed to update the inventory of exceptions as the need to do so arises, for circularization as
hereinabove stated.
SECTION 5. Availability of SALN. Subject to the provisions contained in Sections 3 and 4 of this
Order, all public officials are reminded of their obligation to file and make available for scrutiny their
Statements of Assets, Liabilities and Net Worth (SALN) in accordance with existing laws, rules and
regulations, and the spirit and letter of this Order.
SECTION 6. Application and Interpretation. There shall be a legal presumption in favor of access to
information, public records and official records. No request for information shall be denied unless it
clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions
circularized by the Office of the President provided in the preceding section.
The determination of the applicability of any of the exceptions to the request shall be the
responsibility of the Head of the Office which is in custody or control of the information, public record
or official record, or the responsible central or field officer duly designated by him in writing.
In making such determination, the Head of the Office or his designated officer shall exercise
reasonable diligence to ensure that no exception shall be used or availed of to deny any request for
information or access to public records, or official records if the denial is intended primarily and
purposely to cover up a crime, wrongdoing, graft or corruption.
SECTION 7. Protection of Privacy. While providing access to information, public records, and official
records, responsible officials shall afford full protection to the right to privacy of the individual as
follows:
(a) Each government office per Section 2 hereof shall ensure that personal information in its
custody or under its control is disclosed or released only if it is material or relevant to the
subject-matter of the request and its disclosure is permissible under this order or existing
law, rules or regulations;
(b) Each government office must protect personal information in its custody or control by
making reasonable security arrangements against leaks or premature disclosure of personal
information which unduly exposes the individual whose personal information is requested, to
vilification, harassment or any other wrongful acts.
(c) Any employee, official or director of a government office per Section 2 hereof who has
access, authorized or unauthorized, to personal information in the custody of the office, must
not disclose that information except when authorized under this order or pursuant to existing
laws, rules or regulation.
SECTION 8. People’s Freedom to Information (FOI) Manual. For the effective implementation of this
Order, every government office is directed to prepare within one hundred twenty (120) calendar days
from the effectivity of this Order, its own People’s FOI Manual, which shall include among others the
following provisions:
(a) The location and contact information of the head, regional, provincial, and field offices,
and other established places where the public can obtain information or submit requests;
(b) The person or office responsible for receiving requests for information;
(c) The procedure for the filing and processing of the request as specified in the succeeding
section 8 of this Order.
(d) The standard forms for the submission of requests and for the proper acknowledgment of
requests;
(e) The process for the disposition of requests;
(f) The procedure for the administrative appeal of any denial for access to information; and
(g) The schedule of applicable fees.
SECTION 9. Procedure. The following procedure shall govern the filing and processing of request
for access to information:
(a) Any person who requests access to information shall submit a written request to the
government office concerned. The request shall state the name and contact information of
the requesting party, provide valid proof of his identification or authorization, reasonably
describe the information requested, and the reason for, or purpose of, the request for
information: Provided, that no request shall be denied or refused acceptance unless the
reason for the request is contrary to law, existing rules and regulations or it is one of the
exceptions contained in the inventory or updated inventory of exception as hereinabove
provided.
(b) The public official receiving the request shall provide reasonable assistance, free of
charge, to enable, to enable all requesting parties and particularly those with special needs,
to comply with the request requirements under this Section.
(c) The request shall be stamped by the government office, indicating the date and time of
receipt and the name, rank, title and position of the receiving public officer or employee with
the corresponding signature, and a copy thereof furnished to the requesting party. Each
government office shall establish a system to trace the status of all requests for information
received by it.
(d) The government office shall respond to a request fully compliant with requirements of
sub-section (a) hereof as soon as practicable but not exceeding fifteen (15) working days
from the receipt thereof. The response mentioned above refers to the decision of the agency
or office concerned to grant or deny access to the information requested.
(e) The period to respond may be extended whenever the information requested requires
extensive search of the government office’s records facilities, examination of voluminous
records, the occurrence of fortuitous cases or other analogous cases. The government office
shall notify the person making the request of the extension, setting forth the reasons for such
extension. In no case shall the extension go beyond twenty (20) working days unless
exceptional circumstances warrant a longer period.
(f) Once a decision is made to grant the request, the person making the request shall be
notified of such decision and directed to pay any applicable fees.
SECTION 10. Fees. Government offices shall not charge any fee for accepting requests for access
to information. They may, however, charge a reasonable fee to reimburse necessary costs, including
actual costs of reproduction and copying of the information required, subject to existing rules and
regulations. In no case shall the applicable fees be so onerous as to defeat the purpose of this
Order.
SECTION 11. Identical or Substantially Similar Requests. The government office shall not be
required to act upon an unreasonable subsequent identical or substantially similar request from the
same requesting party whose request from the same requesting party whose request has already
been previously granted or denied by the same government office.
SECTION 12. Notice of Denial. If the government office decides to deny the request, in whole or in
part, it shall as soon as practicable, in any case within fifteen (15) working days from the receipt of
the request, notify the requesting party the denial in writing. The notice shall clearly set forth the
ground or grounds for denial and the circumstances on which the denial is based. Failure to notify
the requesting party of the action taken on the request within the period herein stipulated shall be
deemed a denial of the request for access to information.
SECTION 13. Remedies in Cases of Denial of Request for Access to Information.
(a) Denial of any request for access to information may be appealed to the person or office
next higher in the authority, following the procedure mentioned in Section 7 (f) of this Order:
Provided, that the written appeal must be filed by the same person making the request within
fifteen (15) working days from the notice of denial or from the lapse of the relevant period to
respond to the request.
(b) The appeal be decided by the person or office next higher in authority within thirty (30)
working days from the filing of said written appeal. Failure of such person or office to decide
within the afore-stated period shall be deemed a denial of the appeal.
(c) Upon exhaustion of administrative appeal remedies, the requesting part may file the
appropriate case in the proper courts in accordance with the Rules of Court.
SECTION 14. Keeping of Records. Subject to existing laws, rules, and regulations, government
offices shall create and/or maintain accurate and reasonably complete records of important
information in appropriate formats, and implement a records management system that facilitates
easy identification, retrieval and communication of information to the public.
SECTION 15. Administrative Liability. Failure to comply with the provisions of this Order may be a
ground for administrative and disciplinary sanctions against any erring public officer or employee as
provided under existing laws or regulations.
SECTION 16. Implementing Details. All government offices in the Executive Branch are directed to
formulate their respective implementing details taking into consideration their mandates and the
nature of information in their custody or control, within one hundred twenty (120) days from the
effectivity of this Order.
SECTION 17. Separability Clause. If any section or part of this Order is held unconstitutional or
invalid, the other sections or provisions not otherwise affected shall remain in full force or effect.
SECTION 18. Repealing Clause. All orders, rules and regulations, issuances or any part thereof
inconsistent with the provisions of this Executive Order are hereby repealed, amended or modified
accordingly: Provided, that the provisions of Memorandum Circular No. 78 (s. 1964), as amended,
shall not be deemed repealed pending further review.
SECTION 19. Effectivity. This Order shall take effect immediately upon publication in a newspaper of
general circulation.
DONE, in the City of Manila, this 23rd day of July in the year of our Lord two thousand and sixteen.
(Sgd.) RODRIGO ROA DUTERTE

President of the Philippines
By the President:
(Sgd.) SALVADOR C. MEDIALDEA

Executive Secretary
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA

SAMAHAN SA KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"),
VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-
ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA
ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG.
EMMANUEL JOEL J. VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and
Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee
(PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in
his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of
the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff
Commission and lead negotiator for Competition Policy and Emergency Measures of the
JPEPA, MARGARITA SONGCO, in her capacity as Assistant Director-General of the National
Economic Development Authority (NEDA) and lead negotiator for Trade in Services and
Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I,
Office of the Undersecretary for International Economic Relations of the DFA and lead
negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her
capacity as Director of the Board of Investments and lead negotiator for Trade in Goods
(General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for
Rules of Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy
Commissioner of the Bureau of Customs and lead negotiator for Customs Procedures and
Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director
of the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and
lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in
his capacity as Director of the Board of Investments and lead negotiator for Investment of the
JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards
of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his
capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his
capacity as Officer-in-Charge of the Government Procurement Policy Board Technical
Support Office, the government agency that is leading the negotiations on Government
Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the
JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final
Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and
ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek via

the present petition for mandamus and prohibition to obtain from respondents the full text of the
Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese
offers submitted during the negotiation process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005
House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being
negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis
of an inquiry subsequently conducted by the House Special Committee on Globalization (the House
Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent Undersecretary
Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under
Executive Order No. 213 ("Creation of A Philippine Coordinating Committee to Study the Feasibility
of the Japan-Philippines Economic Partnership Agreement")1 to study and negotiate the proposed
JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did
not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of
November 2, 2005, replied that the Congressman shall be provided with a copy thereof "once the
negotiations are completed and as soon as a thorough legal review of the proposed agreement has
been conducted."
In a separate move, the House Committee, through Congressman Herminio G. Teves, requested
Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject including the
latest draft of the proposed agreement, the requests and offers etc."2 Acting on the request,
Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains
that the Committee’s request to be furnished all documents on the JPEPA may be difficult to
accomplish at this time, since the proposed Agreement has been a work in progress for
about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon
as the text thereof is settled and complete. (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission
Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have
a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the
Congressman with a copy "once the negotiation is completed." And by letter of July 18, 2005, NEDA
Assistant Director-General Margarita R. Songco informed the Congressman that his request
addressed to Director-General Neri had been forwarded to Usec. Aquino who would be "in the best
position to respond" to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a
subpoena for the most recent draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves’ information, then House Speaker Jose de Venecia had
requested him to hold in abeyance the issuance of the subpoena until the President gives her
consent to the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine government within December
2005, the present petition was filed on December 9, 2005.4 The agreement was to be later signed on
September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro
Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its
concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being
deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippines with another country in the event the Senate grants its consent to it, covers a broad
range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs
procedures, paperless trading, trade in services, investment, intellectual property rights, government
procurement, movement of natural persons, cooperation, competition policy, mutual recognition,
dispute avoidance and settlement, improvement of the business environment, and general and final
provisions.5
While the final text of the JPEPA has now been made accessible to the public since September 11,
2006,6 respondents do not dispute that, at the time the petition was filed up to the filing of petitioners’
Reply – when the JPEPA was still being negotiated – the initial drafts thereof were kept from public
view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the
Court finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully
excludes said party from the enjoyment of a legal right.7 Respondents deny that petitioners have
such standing to sue. "[I]n the interest of a speedy and definitive resolution of the substantive issues
raised," however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office
of Executive Secretary8 which emphasizes the need for a "personal stake in the outcome of the
controversy" on questions of standing.
In a petition anchored upon the right of the people to information on matters of public concern, which
is a public right by its very nature, petitioners need not show that they have any legal or special
interest in the result, it being sufficient to show that they are citizens and, therefore, part of the
general public which possesses the right.9 As the present petition is anchored on the right to
information and petitioners are all suing in their capacity as citizens and groups of citizens including
petitioners-members of the House of Representatives who additionally are suing in their capacity as
such, the standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the
contents of the JPEPA prior to its finalization between the two States parties,"10 public disclosure of
the text of the JPEPA after its signing by the President, during the pendency of the present petition,
has been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet
be considered as final and binding between the two States. Article 164 of the JPEPA itself provides
that the agreement does not take effect immediately upon the signing thereof. For it must still go
through the procedures required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the Governments of
the Parties exchange diplomatic notes informing each other that their respective legal procedures
necessary for entry into force of this Agreement have been completed. It shall remain in force
unless terminated as provided for in Article 165.11 (Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the legal
procedures which must be met prior to the agreement’s entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become
moot and academic to the extent that it seeks the disclosure of the "full text" thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of
the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for access to
the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the
JPEPA negotiations violates their right to information on matters of public concern13 and contravenes
other constitutional provisions on transparency, such as that on the policy of full public disclosure of
all transactions involving public interest.14 Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable participation in all levels of social,
political, and economic decision-making.15 Lastly, they proffer that divulging the contents of the
JPEPA only after the agreement has been concluded will effectively make the Senate into a mere
rubber stamp of the Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA
are, except for the last, the same as those cited for the disclosure of the Philippine and
Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents’ claim of
privilege shall be discussed. The last, being purely speculatory given that the Senate is still
deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold
requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service
Commission:
In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the
matter at issue is of interest or importance, as it relates to or affects the public.16 (Underscoring
supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine
and Japanese offers submitted during the negotiations towards its execution are matters of public
concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered
by the doctrine of executive privilege, thus constituting an exception to the right to information and
the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public
disclosure is absolute, there being matters which, albeit of public concern or public interest, are
recognized as privileged in nature. The types of information which may be considered privileged
have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estate’s
Authority,19 and most recently in Senate v. Ermita20 where the Court reaffirmed the validity of the
doctrine of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and
the context in which it is made.21 In the present case, the ground for respondents’ claim of privilege is
set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters of diplomatic
character and under negotiation and review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by respondents particularly
respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal
review by the parties fall under the exceptions to the right of access to information on matters of
public concern and policy of public disclosure. They come within the coverage of executive
privilege. At the time when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain
and subject to change. Considering the status and nature of such documents then and now, these
are evidently covered by executive privilege consistent with existing legal provisions and settled
jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts"
which may undergo radical change or portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of Japan must be allowed
to explore alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict confidentiality.22 (Emphasis
and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought involves a
diplomatic matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest."23 Even
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement.25 The Court denied the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which
are inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr. Stimson:
"A complicated negotiation . . . cannot be carried through without many, many private talks
and discussion, man to man; many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their troubles at home and of their
differences with other countries and with other delegates; they tell you of what they would do
under certain circumstances and would not do under other circumstances. . . If these
reports . . . should become public . . . who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly
all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence
anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938)
President Wilson in starting his efforts for the conclusion of the World War declared that we must
have "open covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is ample
opportunity for discussion before it is approved. (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp.26 that the President is the sole organ of the nation in its negotiations with foreign countries, viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes treaties
with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great
argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of
the nation in its external relations, and its sole representative with foreign nations." Annals,
6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential – since there should be "ample opportunity for
discussion before [a treaty] is approved" – the offers exchanged by the parties during the
negotiations continue to be privileged even after the JPEPA is published. It is reasonable to
conclude that the Japanese representatives submitted their offers with the understanding that
"historic confidentiality"27 would govern the same. Disclosing these offers could impair the ability of
the Philippines to deal not only with Japan but with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during negotiations.
While, on first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that
matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing
to grant concessions in an area of lesser importance in order to obtain more favorable terms
in an area of greater national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to
"grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if "negotiators have more to gain from being
approved by their own sides than by making a reasoned agreement with competitors or adversaries,
then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little
option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace
with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly
a willingness to remove Israel's existing settlements from Judea and Samaria in return for
peace.28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing

higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged
does not mean that it will be considered privileged in all instances. Only after a consideration of the
context in which the claim is made may it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed later.
For now, the Court shall first pass upon the arguments raised by petitioners against the application
of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there
being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved.
They stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily
pertained to matters affecting national security; whereas the present case involves an economic
treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters
which, unlike those covered by the Military Bases Agreement, are not so vital to national security to
disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered privileged, must
involve national security. The recognition in Senate v. Ermita29 that executive privilege has
encompassed claims of varying kinds, such that it may even be more accurate to speak of
"executive privileges," cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security such
as those involving military secrets, not all are founded thereon. One example is the "informer’s
privilege," or the privilege of the Government not to disclose the identity of a person or persons who
furnish information of violations of law to officers charged with the enforcement of that law.30 The
suspect involved need not be so notorious as to be a threat to national security for this privilege to
apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-
profile cases, in which case not only would this be contrary to long-standing practice. It would also
be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed
privileged without distinguishing between those which involve matters of national security and those
which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of
those tasked to exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature of the
case deliberated upon, so presidential communications are privileged whether they involve matters
of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not
absolute, one significant qualification being that "the Executive cannot, any more than the other
branches of government, invoke a general confidentiality privilege to shield its officials and
employees from investigations by the proper governmental institutions into possible criminal
wrongdoing." 32 This qualification applies whether the privilege is being invoked in the context of a
judicial trial or a congressional investigation conducted in aid of legislation.33
Closely related to the "presidential communications" privilege is the deliberative process privilege
recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears,
Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions
and policies are formulated. Notably, the privileged status of such documents rests, not on the need
to protect national security but, on the "obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news," the
objective of the privilege being to enhance the quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&fn=_top&s
v=Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the
confidential character of diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations
is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by
shielding such negotiations from public view. Similar to the privilege for presidential communications,
the diplomatic negotiations privilege seeks, through the same means, to protect the independence in
decision-making of the President, particularly in its capacity as "the sole organ of the nation in its
external relations, and its sole representative with foreign nations." And, as with the deliberative
process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the
content of the information per se, but because the information is part of a process of deliberation
which, in pursuit of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of
the Treasury37 enlightens on the close relation between diplomatic negotiations and deliberative
process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S.
negotiating team during the U.S.-French tax treaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French and U.S. teams took on some points,
the draft language agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a

deliberative process. Much give-and-take must occur for the countries to reach an accord. A
description of the negotiations at any one point would not provide an onlooker a summary of the
discussions which could later be relied on as law. It would not be "working law" as the points
discussed and positions agreed on would be subject to change at any date until the treaty was
signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-disclosure. Much harm
could accrue to the negotiations process if these notes were revealed. Exposure of the pre-
agreement positions of the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the negotiations process. As
several months pass in between negotiations, this lack of record could hinder readily the U. S.
negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies
should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to releasing
drafts of the treaty, particularly when the notes state the tentative provisions and language
agreed on. As drafts of regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21,
1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring
supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of
U.S. Trade Representative38 – where the plaintiffs sought information relating to the just-completed
negotiation of a United States-Chile Free Trade Agreement – the same district court, this time under
Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the
disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright,
a discussion of why the district court did not apply the same would help illumine this Court’s own
reasons for deciding the present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information,
namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection
under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or
intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's
deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two
cases, based his decision on what he perceived to be a significant distinction: he found the
negotiator’s notes that were sought in Fulbright to be "clearly internal," whereas the documents
being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The
documents subject of Fulbright being clearly internal in character, the question of disclosure therein
turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency's pre-decisional deliberative process. On this basis,
Judge Friedman found that "Judge Green's discussion [in Fulbright] of the harm that could result
from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-
agency, and the Court does not reach the question of deliberative process." (Emphasis
supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in
light of its distinct factual setting. Whether this conclusion was valid – a question on which this Court
would not pass – the ruling in Fulbright that "[n]egotiations between two countries to draft a treaty
represent a true example of a deliberative process" was left standing, since the CIEL court explicitly
stated that it did not reach the question of deliberative process.
Going back to the present case, the Court recognizes that the information sought by petitioners
includes documents produced and communicated by a party external to the Philippine government,
namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is
closer to the factual circumstances of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated
in Fulbright that the public policy underlying the deliberative process privilege requires that
diplomatic negotiations should also be accorded privileged status, even if the documents subject of
the present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on its
finding that the first requirement of FOIA Exemption 5 – that the documents be inter-agency – was
not met. In determining whether the government may validly refuse disclosure of the exchanges
between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a
statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a
claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether
the privilege being claimed is indeed supported by public policy, without having to consider – as the
CIEL court did – if these negotiations fulfill a formal requirement of being "inter-agency." Important
though that requirement may be in the context of domestic negotiations, it need not be accorded the
same significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons
explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v.
Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the
present case is the fact that the petitioners therein consisted entirely of members of the mass media,
while petitioners in the present case include members of the House of Representatives who invoke
their right to information not just as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to
demand information on negotiations of international trade agreements from the Executive branch, a
matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it
would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such
as the present, where the demand for information has come from members of Congress, not only
from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all
force and effect simply because the same privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new context might differ, but to say
that the privilege, as such, has no validity at all in that context is another matter altogether.
The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations [state secrets privilege, informer’s
privilege, and a generic privilege for internal deliberations], and may be asserted, with differing
degrees of success, in the context of either judicial or legislative investigations,"41 implies that a
privilege, once recognized, may be invoked under different procedural settings. That this principle
holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v.
Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not
even the Senate or the House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’ demands
for information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic
negotiations cannot be considered irrelevant in resolving the present case, the contextual
differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners
proffer that "the socio-political and historical contexts of the two cases are worlds apart." They claim
that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came
about, particularly the school of thought that the requirements of foreign policy and the ideals of
transparency were incompatible with each other or the "incompatibility hypothesis," while valid when
international relations were still governed by power, politics and wars, are no longer so in this age of
international cooperation.42
Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the Court
notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as
such than on a particular socio-political school of thought. If petitioners are suggesting that the
nature of treaty negotiations have so changed that "[a]n ill-timed speech by one of the parties or a
frank declaration of the concession which are exacted or offered on both sides" no longer "lead[s] to
widespread propaganda to block the negotiations," or that parties in treaty negotiations no
longer expect their communications to be governed by historic confidentiality, the burden is on them
to substantiate the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of
confidentiality so as not to jeopardize the diplomatic process." They argue, however, that the same is
privileged "only at certain stages of the negotiating process, after which such information must
necessarily be revealed to the public."43 They add that the duty to disclose this information was
vested in the government when the negotiations moved from the formulation and exploratory stage
to the firming up of definite propositions or official recommendations, citing Chavez v.
PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that
case and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the
government" does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security
and public order. x x x46 (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be disclosed if
they fall under "recognized exceptions." The privilege for diplomatic negotiations is clearly among the
recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v.
Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure,
even against the demands of members of Congress for information, the Court shall now determine
whether petitioners have shown the existence of a public interest sufficient to overcome the privilege
in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One is the
presumed public interest in favor of keeping the subject information confidential, which is the
reason for the privilege in the first place, and the other is the public interest in favor of disclosure,
the existence of which must be shown by the party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public interest in favor of
disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select Committee on
Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such
claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal
justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the basic
function of the courts. A President’s acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in
confidentiality of communications will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis,
italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a Senate committee, spoke of the
need to balance such claim with the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly relies in the performance of his duties could continue to
work under a general assurance that their deliberations would remain confidential. So long as the
presumption that the public interest favors confidentiality can be defeated only by a strong
showing of need by another institution of government- a showing that the responsibilities of
that institution cannot responsibly be fulfilled without access to records of the President's
deliberations- we believed in Nixon v. Sirica, and continue to believe, that the effective functioning
of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. x x x (Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential communications
privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process
privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient
showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc
basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a
fresh balancing of the competing interests," taking into account factors such as "the relevance of
the evidence," "the availability of other evidence," "the seriousness of the litigation," "the
role of the government," and the "possibility of future timidity by government employees. x x
x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and "sufficient showing of need" referred to in the
immediately cited cases. The arguments they proffer to establish their entitlement to the subject
documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation
process effectively results in the bargaining away of their economic and property rights without their
knowledge and participation, in violation of the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to the initial offers exchanged during the
negotiations since only through such disclosure can their constitutional right to effectively participate
in decision-making be brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were conducted
on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as "woefully
selective and inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese
representatives have not been disclosed to the public, the Court shall pass upon the issue of
whether access to the documents bearing on them is, as petitioners claim, essential to their right to
participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full text
of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by
the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the
validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus,
"ample opportunity for discussion before [the treaty] is approved."
The text of the JPEPA having been published, petitioners have failed to convince this Court that they
will not be able to meaningfully exercise their right to participate in decision-making unless the initial
offers are also published.
It is of public knowledge that various non-government sectors and private citizens have already
publicly expressed their views on the JPEPA, their comments not being limited to general
observations thereon but on its specific provisions. Numerous articles and statements critical of the
JPEPA have been posted on the Internet.54 Given these developments, there is no basis for
petitioners’ claim that access to the Philippine and Japanese offers is essential to the exercise of
their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to
the subject documents on the basis of Congress’ inherent power to regulate commerce, be it
domestic or international. They allege that Congress cannot meaningfully exercise the power to
regulate international trade agreements such as the JPEPA without being given copies of the initial
offers exchanged during the negotiations thereof. In the same vein, they argue that the President
cannot exclude Congress from the JPEPA negotiations since whatever power and authority the
President has to negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential
Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes.
Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the
article on the Executive Department – which states:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being
the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive
Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is
the sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two thirds vote of
all the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful
exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it. x x x (Italics in the original; emphasis and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the
Court ruled:
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with foreign
nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with
respect to international affairs. Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis
and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised
by the President only by delegation of that body, it has long been recognized that the power to enter
into treaties is vested directly and exclusively in the President, subject only to the concurrence of at
least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the
authority of the President to enter into trade agreements with foreign nations provided under P.D.
146458 may be interpreted as an acknowledgment of a power already inherent in its office. It may not
be used as basis to hold the President or its representatives accountable to Congress for the
conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still ensure that all treaties will
substantively conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers, may
not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate
concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been
given the authority to concur as a means of checking the treaty-making power of the President,
but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of
the House of Representatives fail to present a "sufficient showing of need" that the information
sought is critical to the performance of the functions of Congress, functions that do not include
treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective, not having
been done seasonably as it was raised only in their Comment to the present petition and not during
the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the present petition
does not mean that the claim of privilege should not be credited. Petitioners’ position presupposes
that an assertion of the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for copies of
the documents subject of this case, respondents replied that the negotiations were still on-going and
that the draft of the JPEPA would be released once the text thereof is settled and complete. There
was no intimation that the requested copies are confidential in nature by reason of public policy. The
response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which
recognizes as claims of privilege only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information being sought.
Respondents’ failure to claim the privilege during the House Committee hearings may not, however,
be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph
indicates, what respondents received from the House Committee and petitioner-Congressman Aguja
were mere requests for information. And as priorly stated, the House Committee itself refrained from
pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de
Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the same in
abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive
officials – out of respect for their office – until resort to it becomes necessary, the fact remains that
such requests are not a compulsory process. Being mere requests, they do not strictly call for an
assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry.59 So long as Congress itself finds no
cause to enforce such power, there is no strict necessity to assert the privilege. In this light,
respondents’ failure to invoke the privilege during the House Committee investigations did not
amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents’ Comment to this
petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be
invoked by the President or through the Executive Secretary "by order of the
President."60 Respondents’ claim of privilege is being sustained, however, its flaw notwithstanding,
because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents
herein, without him adding the phrase "by order of the President," shall be considered as partially
complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase "by
order of the President" should accompany the Executive Secretary’s claim of privilege is a new rule
laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition.61 A strict application of this requirement would thus
be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people’s
right to information against any abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be
careful not to veer towards the opposite extreme, to the point that it would strike down as invalid
even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been
sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade agreements in the
United States, the dissent concludes that "it will be turning somersaults with history to contend that
the President is the sole organ for external relations" in that jurisdiction. With regard to this opinion,
We make only the following observations:
There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations"
which is not being disputed, namely, that the power to directly negotiate treaties and international
agreements is vested by our Constitution only in the Executive. Thus, the dissent states that
"Congress has the power to regulate commerce with foreign nations but does not have the power
to negotiate international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking for the
subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA,
hence, they cannot be prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan v.
PIATCO63 – and in other cases both before and since – should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot be
done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear
statutory prohibition against a direct government guarantee would not only make a mockery of what
the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring a
monetary obligation resulting from a contract of loan between the project proponent and its lenders
and to which the Government is not a party to -- but would also render the BOT Law useless for
what it seeks to achieve –- to make use of the resources of the private sector in the "financing,
operation and maintenance of infrastructure and development projects" which are necessary for
national growth and development but which the government, unfortunately, could ill-afford to finance
at this point in time.64
Similarly, while herein petitioners-members of the House of Representatives may not have been
aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny –
even to the point of giving them access to the offers exchanged between the Japanese and
Philippine delegations – would have made a mockery of what the Constitution sought to prevent and
rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely
with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making
power of the President, which our Constitution similarly defines, may be gathered from Hamilton’s
explanation of why the U.S. Constitution excludes the House of Representatives from the treaty-
making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous composition of
that body, forbid us to expect in it those qualities which are essential to the proper execution of such
a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic
adherence to the same views; a nice and uniform sensibility to national character,
decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The
very complication of the business by introducing a necessity of the concurrence of so many different
bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of
representatives, and the greater length of time which it would often be necessary to keep them
together when convened, to obtain their sanction in the progressive stages of a treaty, would be
source of so great inconvenience and expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that
of the U.S., does not even grant the Senate the power to advise the Executive in the making of
treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations
have been concluded.66 Much less, therefore, should it be inferred that the House of Representatives
has this power.
Since allowing petitioner-members of the House of Representatives access to the subject JPEPA
documents would set a precedent for future negotiations, leading to the contravention of the public
interests articulated above which the Constitution sought to protect, the subject documents should
not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege
over the subject JPEPA documents now that negotiations have been concluded, since their reasons
for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment,
necessarily apply only for as long as the negotiations were still pending;
In their Comment, respondents contend that "the negotiations of the representatives of the
Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality." That respondents liken the documents involved in the JPEPA
negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that
they were claiming confidentiality not only until, but even after, the conclusion of the
negotiations.
Judicial deliberations do not lose their confidential character once a decision has been promulgated
by the courts. The same holds true with respect to working drafts of opinions, which are comparable
to intra-agency recommendations. Such intra-agency recommendations are privileged even after the
position under consideration by the agency has developed into a definite proposition, hence, the rule
in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter-
agency and intra-agency communications during the stage when common assertions are still being
formulated.67
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently
shown their need for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier
intention to subpoena the documents. This strongly undermines the assertion that access to the
same documents by the House Committee is critical to the performance of its legislative functions. If
the documents were indeed critical, the House Committee should have, at the very least, issued
a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present
petition as a legislative body, rather than leaving it to the discretion of individual Congressmen
whether to pursue an action or not. Such acts would have served as strong indicia that Congress
itself finds the subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the House
of Representatives should have, at least, shown how its lack of access to the Philippine and
Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA
covers a subject matter over which Congress has the power to legislate would not suffice. As Senate
Select Committee v. Nixon68 held, the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of the function in the performance of
which the material was sought, but also the degree to which the material was necessary to its
fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was
published, petitioner-members of the House of Representatives have been free to use it for any
legislative purpose they may see fit. Since such publication, petitioners’ need, if any, specifically for
the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less
apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the
dissent contends that the Executive has failed to show how disclosing them after the conclusion of
negotiations would impair the performance of its functions. The contention, with due respect,
misplaces the onus probandi. While, in keeping with the general presumption of transparency, the
burden is initially on the Executive to provide precise and certain reasons for upholding its claim of
privilege, once the Executive is able to show that the documents being sought are covered by a
recognized privilege, the burden shifts to the party seeking information to overcome the privilege by
a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic
negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would
impair the performance of executive functions. It was then incumbent on petitioner- requesting
parties to show that they have a strong need for the information sufficient to overcome the privilege.
They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege
"by order of the President," the same may not be strictly applied to the privilege claim subject of this
case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President
alone, it was laying down a new rule for which there is no counterpart even in the United States from
which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch,
Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a President must
personally invoke the [presidential communications] privilege remains an open question." U.S. v.
Reynolds,71 on the other hand, held that "[t]here must be a formal claim of privilege, lodged by the
head of the department which has control over the matter, after actual personal consideration by that
officer."
The rule was thus laid down by this Court, not in adherence to any established precedent, but with
the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Court’s
recognition that the Executive Secretary also bears the power to invoke the privilege, provided he
does so "by order of the President," is meant to avoid laying down too rigid a rule, the Court being
aware that it was laying down a new restriction on executive privilege. It is with the same spirit that
the Court should not be overly strict with applying the same rule in this peculiar instance, where the
claim of executive privilege occurred before the judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that
the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The New American
Government and Its Work73 since these authorities, so the dissent claims, may not be used to
calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and
legislative branches of government, the factual setting thereof was different from that of PMPF v.
Manglapus which involved a collision between governmental power over the conduct of foreign
affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic
negotiations against congressional demands for information – in the course of laying down a ruling
on the public right to information only serves to underscore the principle mentioned earlier that the
privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an
executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [public’s] right to
information . . . does not extend to matters recognized as privileged information under the separation
of powers." What counts as privileged information in an executive-legislative conflict is thus also
recognized as such in cases involving the public’s right to information.
Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a valid
limitation to that right the same privileged information based on separation of powers – closed-door
Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of
the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the context of
an executive-legislative conflict or a citizen’s demand for information, as closely intertwined, such
that the principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different
criteria in each context, this may give rise to the absurd result where Congress would be denied
access to a particular information because of a claim of executive privilege, but the general
public would have access to the same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present
danger" test for the assessment of claims of privilege against citizens’ demands for information. If
executive information, when demanded by a citizen, is privileged only when there is a clear and
present danger of a substantive evil that the State has a right to prevent, it would be very difficult for
the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes
from Congress, the Executive merely has to show that the information is covered by a recognized
privilege in order to shift the burden on Congress to present a strong showing of need. This would
lead to a situation where it would be more difficult for Congress to access executive information than
it would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by
executive privilege, the party demanding the information must present a "strong showing of
need," whether that party is Congress or a private citizen.
The rule that the same "showing of need" test applies in both these contexts, however, should not be
construed as a denial of the importance of analyzing the context in which an executive privilege
controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being
shown by the party seeking information in every particular instance is highly significant in
determining whether to uphold a claim of privilege. This "need" is, precisely, part of the context
in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive
privilege controversies across different contexts, the Court in PMPF v. Manglapus did not err when it
cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its
Work could not have taken into account the expanded statutory right to information in the FOIA
assumes that the observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA. Such assumption is, with due
respect, at best, speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the
importance of the right of access to information in the Philippine setting considering its elevation as a
constitutional right," we submit that the elevation of such right as a constitutional right did not set it
free from the legitimate restrictions of executive privilege which is itself constitutionally-
based.76 Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid
doctrine.
6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow
inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The
Court has done so before, albeit without using the term "need."
In executive privilege controversies, the requirement that parties present a "sufficient showing of
need" only means, in substance, that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such cases
engages in a balancing of interests. Such a balancing of interests is certainly not new in
constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78 which was
cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test
to the present controversy, but the balancing test, there seems to be no substantial dispute between
the position laid down in this ponencia and that reflected in the dissent as to what test to apply. It
would appear that the only disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be
covered by the right, regardless of the public’s need for the information," and that the same would
hold true even "if they simply want to know it because it interests them." As has been stated earlier,
however, there is no dispute that the information subject of this case is a matter of public concern.
The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific
need shown by petitioners, but from the very nature of the JPEPA as an international trade
agreement.
However, when the Executive has – as in this case – invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can a party
overcome the same by merely asserting that the information being demanded is a matter of public
concern, without any further showing required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation on the right to information,
because then the sole test in such controversies would be whether an information is a matter of
public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents
of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust
reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How
would the Philippine government then explain itself when that happens? Surely, it cannot bear to say
that it just had to release the information because certain persons simply wanted to know it
"because it interests them."
Thus, the Court holds that, in determining whether an information is covered by the right to
information, a specific "showing of need" for such information is not a relevant consideration, but
only whether the same is a matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed covered by the same, then
the party demanding it, if it is to overcome the privilege, must show that that the information is vital,
not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably
participate in social, political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can
exercise their right to participate in the discussion whether the Senate should concur in its
ratification or not." (Emphasis supplied) It adds that this right "will be diluted unless the people can
have access to the subject JPEPA documents". What, to the dissent, is a dilution of the right to
participate in decision-making is, to Us, simply a recognition of the qualified nature of the public’s
right to information. It is beyond dispute that the right to information is not absolute and that the
doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be
diluted, We reiterate that our people have been exercising their right to participate in the discussion
on the issue of the JPEPA, and they have been able to articulate their different opinions without
need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case,
and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the
caveat in the Nixon case that the U.S. Court was there addressing only the President’s assertion of
privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for
information. What this caveat means, however, is only that courts must be careful not to hastily apply
the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied
in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive
privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General
Services80 – which involved former President Nixon’s invocation of executive privilege to challenge
the constitutionality of the "Presidential Recordings and Materials Preservation Act"81 – and the
above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces
tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases
already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion
in Neri v. Senate Committee on Accountability82 – a case involving an executive-legislative conflict
over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the
balance between the President’s generalized interest in confidentiality and congressional demands
for information, "[n]onetheless the [U.S.] Court laid down principles and procedures that can
serve as torch lights to illumine us on the scope and use of Presidential communication
privilege in the case at bar."83 While the Court was divided in Neri, this opinion of the Chief Justice
was not among the points of disagreement, and We similarly hold now that the Nixon case is a
useful guide in the proper resolution of the present controversy, notwithstanding the difference in
context.
Verily, while the Court should guard against the abuse of executive privilege, it should also
give full recognition to the validity of the privilege whenever it is claimed within the proper
bounds of executive power, as in this case. Otherwise, the Court would undermine its own
credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to
water down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has
become moot and academic, it having been made accessible to the public since September 11,
2006. As for their demand for copies of the Philippine and Japanese offers submitted during the
JPEPA negotiations, the same must be denied, respondents’ claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on
September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by
petitioners against the application of the ruling therein to the present case have not persuaded the
Court. Moreover, petitioners – both private citizens and members of the House of Representatives –
have failed to present a "sufficient showing of need" to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the present petition,
and not during the hearings of the House Special Committee on Globalization, is of no moment,
since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the ruling
in Senate v. Ermita that executive privilege should be invoked by the President or through the
Executive Secretary "by order of the President."
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists
to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure
that the nation will receive the benefit of candid, objective and untrammeled communication and
exchange of information between the President and his/her advisers in the process of shaping or forming
policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution.
The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the
confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens
and more, because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. In this
task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches
of government nor allow any of them to overstep the boundaries set for it by our Constitution. The
competing interests in the case at bar are the claim of executive privilege by the President, on the one
hand, and the respondent Senate Committees’ assertion of their power to conduct legislative inquiries, on
the other. The particular facts and circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal
doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting
the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and
Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project
awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to
answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a)
whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to
prioritize it,5 and (c) whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive
Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with
petitioner’s testimony on the ground of executive privilege.7 The letter of Executive Secretary Ermita
pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a President to
the confidentiality of her conversations and correspondences, like the value which we accord
deference for the privacy of all citizens, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the President, and will hamper her in
the effective discharge of her duties and responsibilities, if she is not protected by the
confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which these information were conveyed to the President,
he cannot provide the Committee any further details of these conversations, without disclosing
the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that his testimony on 20 November
2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued the
show-cause letter requiring him to explain why he should not be cited in contempt. On November 29,
2007, in petitioner’s reply to respondent Committees, he manifested that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were those he claimed to be
covered by executive privilege. He also manifested his willingness to appear and testify should there be
new matters to be taken up. He just requested that he be furnished "in advance as to what else" he
"needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request
for advance notice of the matters that he should still clarify, they issued the Order dated January 30,
2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago
(all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his
arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear
and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had
not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to
testify on new matters, but respondent Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were
required to observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications
elicited by the three (3) questions were covered by executive privilege; and second, respondent
Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we
considered the subject communications as falling under the presidential communications
privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they
were received by a close advisor of the President, and (c) respondent Committees failed to adequately
show a compelling need that would justify the limitation of the privilege and the unavailability of the
information elsewhere by an appropriate investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the
questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that
led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution
because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they
issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE

ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO

PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR

LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT
THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS

CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS

APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO

JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE

CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT

COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN

IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR

INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION
21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE
OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE
OPPORTUNITY TO COMMENT.
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR

PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision
of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating
the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further submits the following contentions: first, the
assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption of executive privilege
because it appears that they could legislate even without the communications elicited by the three (3)
questions, and they admitted that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement of specificity applies only to the privilege for
State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the President’s thought processes or
exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has
the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the
failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished
advance copy of questions comports with due process and the constitutional mandate that the rights of
witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of
executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement
from the Court that the assailed Orders were issued by respondent Committees pursuant to their
oversight function; hence, there is no reason for them "to make much" of the distinction between Sections
21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege
against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
(3) the communications elicited by the three (3) questions are covered by executive privilege, because all
the elements of the presidential communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only
after the promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our
legal system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the
three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the
three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the
contempt order.
We shall discuss these issues seriatim.
There Is a Recognized Presumptive

Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily
against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court
erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege
was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good
Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters";17 and that "the right to information does not extend to matters recognized
as ‘privileged information’ under the separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines
heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the
said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and resorted to, but the decision must be
considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v.
Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The
pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring
supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption"
being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their
positions in the Executive Branch. This means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no
presumption of authorization to invoke executive privilege given by the President to said executive
official, such that the presumption in this situation inclines heavily against executive secrecy and in favor
of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that
a certain information is privileged, such determination is presumed to bear the President’s
authority and has the effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from disclosure is necessary to the
discharge of highly important executive responsibilities. The doctrine of executive privilege is thus
premised on the fact that certain information must, as a matter of necessity, be kept confidential
in pursuit of the public interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary
to invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President", which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her subordinates to exercise
such power. There is even less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further
invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in
Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the
ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior
to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature of the United States.
Schwart defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the
basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example, he
has all the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution x x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to
the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption"
in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to
distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as
follows:
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one executive official may be exempted from
this power - the President on whom executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is based on he being the highest official
of the executive branch, and the due respect accorded to a co-equal branch of governments
which is sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical
need for disclosure by the one assailing such presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In
fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege
for Presidential communications."23
II
There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not
covered by executive privilege because the elements of the presidential communications privilege are
not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable

presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to
report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor. 25 The power to
enter into an executive agreement is in essence an executive power. This authority of the President to
enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.26 Now, the fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision
before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of
the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of
these three branches. Thus, by analogy, the fact that certain legislative acts require action from the
President for their validity does not render such acts less legislative in nature. A good example is the
power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by
Congress shall, before it becomes a law, be presented to the President who shall approve or veto the
same. The fact that the approval or vetoing of the bill is lodged with the President does not render the
power to pass law executive in nature. This is because the power to pass law is generally a quintessential
and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter
into a contract to secure foreign loans does not become less executive in nature because of conditions
laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged
in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who are ‘operationally proximate’ to the
President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was aware
of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by
explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House
staff that has "operational proximity" to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes
of the privilege, could pose a significant risk of expanding to a large swath of the executive
branch a privilege that is bottomed on a recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s decision-making process is
adequately protected. Not every person who plays a role in the development of presidential
advice, no matter how remote and removed from the President, can qualify for the
privilege. In particular, the privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only to communications
authored or solicited and received by those members of an immediate White House advisor’s
staff who have broad and significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of his
deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it
is "operational proximity" to the President that matters in determining whether "[t]he
President’s confidentiality interests" is implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the
Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of
her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court
also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit the
availability of executive privilege only to officials who stand proximate to the President, not only by reason
of their function, but also by reason of their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be unnecessarily expanded with the
use of the operational proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and
in balancing respondent Committees’ and the President’s clashing interests, the Court did not
disregard the 1987 Constitutional provisions on government transparency, accountability and
disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through
the Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and
demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of
the 1987 Philippine Constitution on government transparency, accountability and disclosure of
information, specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section
1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations
with another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information sought to
be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China. Given the confidential nature in which this information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons
for the claim with such particularity as to compel disclosure of the information which the privilege is meant
to protect. This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the President’s communication with her
advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product
of the meeting of minds between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are matters which China will
surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our
diplomatic as well as economic relations with the People’s Republic of China. We reiterate the importance
of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export
Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to
a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et
al. v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan,
the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature. Although much has been said about "open" and
"secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and
Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation …cannot be carried through without many,

many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their differences with
other countries and with other delegates; they tell you of what they would
do under certain circumstances and would not do under other
circumstances… If these reports… should become public… who would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers
on nearly all subjects is concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be said that there is no
more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open covenants, openly arrived
at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is
powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations." Annals, 6th
Cong., col. 613… (Emphasis supplied; underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves
the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view
that Congress may peremptorily inquire into not only official, documented acts of the President but even
her confidential and informal discussions with her close advisors on the pretext that said questions serve
some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted
consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge constitutional functions in the face
of intense and unchecked legislative incursion into the core of the President’s decision-making process,
which inevitably would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of
the people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they are denied access to information. And
the policies on public accountability and democratic government would certainly be mere empty words if
access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions,
did not in any way curb the public’s right to information or diminish the importance of public accountability
and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the
NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope
of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege
and rules that petitioner cannot be compelled to appear before respondents to answer the said questions.
We have discussed the reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law
is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the
right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific
laws prescribing the exact limitations within which the right may be exercised or the correlative state duty
may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1)
national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other
confidential information. National security matters include state secrets regarding military and diplomatic
matters, as well as information on inter-government exchanges prior to the conclusion of treaties and
executive agreements. It was further held that even where there is no need to protect such state
secrets, they must be "examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the people’s right to public information. This is the reason why we
stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v.
Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does
not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does
the right to information grant a citizen the power to exact testimony from government officials." As pointed
out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture
that the parties here are respondent Committees and petitioner Neri and that there was no prior request
for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's
right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on
the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a
legislative investigation, the legislative purpose of respondent Committees’ questions can be sufficiently
supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole
may have relevance. The jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a showing of compelling
need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that
the information elicited by the three (3) questions are necessary in the discharge of their legislative
functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.
We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests
and it is necessary to resolve the competing interests in a manner that would preserve the essential
functions of each branch. There, the Court weighed between presidential privilege and the legitimate
claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further
ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of
law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal
justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at
88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to develop all relevant facts in the
adversary system is both fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public confidence in
the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either by the
prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
the right 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all
relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair administration of criminal justice. (emphasis
supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the
basic function of the courts. A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President's broad interest
in confidentiality of communication will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the fair administration of
criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a
criminal case but rather with the Senate’s need for information in relation to its legislative functions. This
leads us to consider once again just how critical is the subject information in the discharge of respondent
Committees’ functions. The burden to show this is on the respondent Committees, since they seek to
intrude into the sphere of competence of the President in order to gather information which, according to
said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the nature of a
legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions.
There is a clear difference between Congress' legislative tasks and the responsibility of a grand
jury, or any institution engaged in like functions. While fact-finding by a legislative committee
is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on the basis of
conflicting information provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one
of those crimes is perjury concerning the content of certain conversations, the grand jury's need
for the most precise evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to its legislative judgments
has been substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate
actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate
Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive
and the Legislative Branches is the recognized existence of the presumptive presidential communications
privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which
states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select
Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals,
as well as subsequent cases all recognize that there is a presumptive privilege in favor of
Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be
elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power
to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said information sought by the three (3)
questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring
Opinion:
…If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three questions will not necessarily
bolster or inhibit respondents from proceeding with such legislation. They could easily
presume the worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies
can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly,
during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner answering the three (3)
questions. In other words, the information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the
Senate. For instance, question Number 1 whether the President followed up the NBN
project. According to the other counsel this question has already been asked, is that
correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like
to indorse a Bill to include Executive Agreements had been used as a device to the
circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem
in its factual setting as counsel for petitioner has observed, there are intimations of a
bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical
to the lawmaking function of the Senate? Will it result to the failure of the Senate to
cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that he was
offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the approval of the contract
would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the
project after being told about the alleged bribe. How critical is that to the lawmaking
function of the Senate? And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation
requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information
sought or how the withholding of the information sought will hinder the accomplishment of their legislative
purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to
successfully discharge this burden, the presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption, like any other, is to dispense with the
burden of proof as to whether the disclosure will significantly impair the President’s performance of her
function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions
covered by the privilege, this does not evince a compelling need for the information sought.
Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-
finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend
more on the predicted consequences of proposed legislative actions and their political acceptability than
on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot subscribe to the respondent Committees’ self-
defeating proposition that without the answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the
inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function
of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3)
questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature
and not oversight. In any event, whether or not investigating graft and corruption is a legislative or
oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by
the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "the political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not
really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction of Congress,
since the aim of the investigation is to find out whether or not the relatives of the President or Mr.
Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a
matter that appears more within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of
the President.48 While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a task for
the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a
crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for
truth," which in respondent Committees’ view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or
illegal activity, the investigation of the role played by each official, the determination of who should be
haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding
anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation.
Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this regard, the
pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into
matters which are within the exclusive province of one of the other branches of the government.
Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively
the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to
the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been
filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our
Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public
official, employee, office or agency when such act or omission appears to be illegal, unjust,
improper, or inefficient."51 The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true
and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the
duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the
Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights
of all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot
be deemed compelling enough to pierce the confidentiality of information validly covered by executive
privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal
activity, despite the absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring
confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and appropriateness of the function in the performance of
which the material was sought, and the degree to which the material was necessary to its
fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.
Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding
has been initiated at present. The Court is not persuaded. While it is true that no impeachment
proceeding has been initiated, however, complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has
said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by
the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project
are true and, if so, who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence
applicable to judicial proceedings which do not affect substantive rights need not be observed by the
Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling
for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest
public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in
proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt
order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the
requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their
internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution
requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we
see no reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry"
along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof" is not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes
its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v.
Ermita are modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry must
be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S.
case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They
should be adequately informed what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of
inquiry. The logic of these requirements is well articulated in the study conducted by William P.
Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to
continually investigate the Executive without constraint. One process solution addressing this
concern is to require each investigation be tied to a clearly stated purpose. At present, the
charters of some congressional committees are so broad that virtually any matter involving the
Executive can be construed to fall within their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A requirement for a more precise charge in order
to begin an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the extent
clear statements of rules cause legislatures to pause and seriously consider the
constitutional implications of proposed courses of action in other areas, they would serve
that goal in the context of congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes minimal
drafting burdens. Rather, the system must be designed in a manner that imposes actual
burdens on the committee to articulate its need for investigation and allows for meaningful
debate about the merits of proceeding with the investigation. (Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that
should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to
any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the
subpoena merely commanded him to "testify on what he knows relative to the subject matter under
inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this
Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into
Congress’ compliance therewith. We cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own
rules, in the absence of showing that there was a violation of a constitutional provision or the
rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each
House to determine its rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a reasonable relation between
the mode or method of proceeding established by the rule and the result which is sought
to be attained."
In the present case, the Court’s exercise of its power of judicial review is warranted because there
appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18
of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness
before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order
because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were
present. This number could hardly fulfill the majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators
and respondent Committee on National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and Commerce which has a membership of
nine (9) Senators, only three (3) members were present.57 These facts prompted us to quote in the
Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the
contempt order was prepared and thereafter presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a faithful representation of the
proceedings that took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of person appearing in or affected by such inquiries shall be respected. (Emphasis
supplied)
All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a
majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has
the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which
the matter has been fully deliberated upon. There is a greater measure of protection for the witness when
the concerns and objections of the members are fully articulated in such proceeding. We do not believe
that respondent Committees have the discretion to set aside their rules anytime they wish. This is
especially true here where what is involved is the contempt power. It must be stressed that the Rules are
not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in
the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not
required to republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-to-
day business the Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in
the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
(emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous Congress) should not be bound
by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body
even with respect to the conduct of its business, then pending matters will not be deemed terminated with
the expiration of one Congress but will, as a matter of course, continue into the next Congress with the
same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct
of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of
procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections
shall begin their term of office, the President may endorse the Rules to the appropriate committee
for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one
day before its consideration, and the vote of the majority of the Senators present in the session
shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force
until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate
after an election and the possibility of the amendment or revision of the Rules at the start of each session
in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the
date of their adoption until they are amended or repealed. Such language is conspicuously absent from
the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two
(2) newspapers of general circulation."59 The latter does not explicitly provide for the continued effectivity
of such rules until they are amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the
next Congress. The Senate of the next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate
to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules
clearly state that the same shall be effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules regarding
effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights
of witnesses should be considered null and void, considering that the rationale for the publication is to
protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such
violation, orders and proceedings are considered valid and effective.
Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or
arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for him.
He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His
only request was that he be furnished a copy of the new questions in advance to enable him to
adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because
Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an executive official under the direct control and
supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by
his superior? Besides, save for the three (3) questions, he was very cooperative during the September
26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling
on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and
ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness;
he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The
same haste and impatience marked the issuance of the contempt order, despite the absence of the
majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably
clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs
with the proposition that it is imperative for the continued health of our democratic institutions that we
preserve the constitutionally mandated checks and balances among the different branches of
government.
In the present case, it is respondent Committees’ contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it is a
courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege)
or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome
power of investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to
Congress powers denied to it by the Constitution and granted instead to the other branches of
government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and
public accountability. The recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a nation that demands an
accounting of an entrusted power. However, the best venue for this noble undertaking is not in the
political branches of government. The customary partisanship and the absence of generally accepted
rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test
of the constitutional guarantee of due process of law. We believe the people deserve a more exacting
"search for truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.
SO ORDERED.
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above offense, the following aggravating

circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to public
authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission of the
offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence
is the substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against
bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures
to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in
perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of
a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the Communist

Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or similar
governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.
during or for five years after the termination of his membership in the Communist
Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
engages, comes within the terms of the Act. If the Party should at anytime choose to
abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must be knowing or active, with
specific intent to further the illegal objectives of the Party. That is what section 4 means when it
requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must
be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient
of guilty knowledge. The former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly,
a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or
remains a member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to
file with the Department of Labor affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by
this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had
taken part in the rebellion against the Government of the United States during the Civil War from
holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further
compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an
officer or employee of a labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be
"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The
Court said:
The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated," —
meaning in that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."
We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In
1969 we again found that the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of government similar to that
of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of
the Communist Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's
Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of the
Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the historic explanation for uniting the two
mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the
Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.
... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence
of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts — those facts which are relevant to
the legislative judgment — will not be canvassed save to determine whether there is
a rationalbasis for believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is
that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio." The recital of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United
States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient
basis for penalizing membershipin a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly

of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not
constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty,
is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies of
self-preservationand the values of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the
legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire
or freedom to speak, is itself an effort at compromisebetween the claims of the social order and
individual freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into
law shall embrace more than one subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:
And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
purpose of placing such Government or political subdivisionunder the control and
domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of
the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences
of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize

the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of
the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign
power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases
are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.
G.R. No. 141961 January 23, 2002
STA. CLARA HOMEOWNERS’ ASSOCIATION thru its Board of Directors composed of ARNEIL
CHUA, LUIS SARROSA, JOCELYN GARCIA, MA. MILAGROS VARGAS, LORENZO LACSON,
ERNESTO PICCIO, DINDO ILAGAN, DANILO GAMBOA JR. and RIZZA DE LA RAMA;
SECURITY GUARD CAPILLO; "JOHN DOE"; and SANTA CLARA ESTATE, INC., petitioners,
vs.
Spouses VICTOR MA. GASTON and LYDIA GASTON, respondents.
PANGANIBAN, J.:
A motion to dismiss based on lack of jurisdiction and lack of cause of action hypothetically admits
the truth of the allegations in the complaint. It is not dependent on the pleas or the theories set forth
in the answer or the motion to dismiss. Membership in a homeowners’ association is voluntary and
cannot be unilaterally forced by a provision in the association’s articles of incorporation or by-laws,
which the alleged member did not agree to be bound to.
Statement of the Case
The Petition for Review before us assails the August 31, 1999 Decision1 and the February 11, 2000
Resolution2 of the Court of Appeals (CA) in CA-GR SP No. 49130. The decretal portion of the
challenged Decision reads as follows:
"WHEREFORE, the petition is DISMISSED for lack of merit. The assailed Orders of the trial
court are AFFIRMED. No costs."3
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The CA4 affirmed the Orders5 of the Regional Trial Court (RTC) of Bacolod City (Branch 49) in Civil
Case No. 98-10217, which had refused to dismiss herein respondents’ Complaint for alleged lack of
jurisdiction and lack of cause of action.
The Facts
The factual antecedents of the case are summarized by the Court of Appeals in this wise:
"On 1 April 1998, Spouses Victor Ma. Gaston and Lydia M. Gaston, private respondents
herein, filed a complaint for damages with preliminary injunction/preliminary mandatory
injunction and temporary restraining order before the Regional Trial Court in Negros
Occidental at Bacolod City against petitioners Santa Clara Homeowners Association (SCHA
for brevity) thru its Board of Directors, namely: Arneil Chua, Luis Sarrosa, Jocelyn Garcia,
Ma. Milagros Vargas, Lorenzo Lacson, Ernesto Piccio, Dindo Ilagan, Danilo Gamboa, Jr.,
Rizza de la Rama and Security Guard Capillo and ‘John Doe’, and Santa Clara Estate,
Incorporated. The case was docketed as Civil Case No 98-10217 and raffled to RTC-Branch
49, Bacolod City.
"The complaint alleged that private respondents herein [were] residents of San Jose Avenue,
Sta. Clara Subdivision, Mandalagan, Bacolod City. They purchased their lots in the said
subdivision sometime in 1974, and at the time of purchase, there was no mention or
requirement of membership in any homeowners’ association. From that time on, they have
remained non-members of SCHA. They also stated that an arrangement was made wherein
homeowners who [were] non-members of the association were issued ‘non-member’
gatepass stickers for their vehicles for identification by the security guards manning the
subdivision’s entrances and exits. This arrangement remained undisturbed until sometime in
the middle of March, 1998, when SCHA disseminated a board resolution which decreed that
only its members in good standing were to be issued stickers for use in their vehicles.
Thereafter, on three separate incidents, Victor M. Gaston, the son of the private respondents
herein who lives with them, was required by the guards on duty employed by SCHA to show
his driver’s license as a prerequisite to his entrance to the subdivision and to his residence
therein despite their knowing him personally and the exact location of his residence. On 29
March 1998, private respondent herein Victor Ma. Gaston was himself prevented from
entering the subdivision and proceeding to his residential abode when petitioner herein
security guards Roger Capillo and a ‘John Doe’ lowered the steel bar of the KAMETAL gate
of the subdivision and demanded from him his driver’s license for identification. The
complaint further alleged that these acts of the petitioners herein done in the presence of
other subdivision owners had caused private respondents to suffer moral damage.
"On 3 April 1998, during the hearing of the private respondents’ application for the issuance
of a temporary restraining order before the lower court, counsel for the petitioners informed
the court that he would be filing a motion to dismiss the case and made assurance that
pending the issuance of a temporary restraining order, the private respondents would be
granted unrestricted access to and from their place of residence.
"On 8 April 1998, petitioners herein filed a motion to dismiss arguing that the trial court ha[d]
no jurisdiction over the case as it involve[d] an intra-corporate dispute between SCHA and its
members pursuant to Republic Act No. 580, as amended by Executive Order Nos. 535 and
90, much [less], to declare as null and void the subject resolution of the board of directors of
SCHA, the proper forum being the Home Insurance (and Guaranty) Corporation (HIGC). To
support their claim of intra-corporate controversy, petitioners stated that the Articles of
Incorporation of SCHA, which was duly approved by the Securities and Exchange
Commission (SEC) on 4 October 1973, provides ‘that the association shall be a non-stock
corporation with all homeowners of Sta. Clara constituting its membership’. Also, its by-laws
contains a provision that ‘all real estate owners in Sta. Clara Subdivision automatically
become members of the association’. The private respondents, having become lot owners of
Sta. Clara Subdivision in 1974 after the approval by the SEC of SCHA’s articles of
incorporation and by-laws, became members automatically in 1974 of SCHA argued the
petitioners. Moreover, the private respondents allegedly enjoyed the privileges and benefits
of membership in and abided by the rules of the association, and even attended the general
special meeting of the association members on 24 March 1998. Their non-payment of the
association yearly dues [did] not make them non-members of SCHA continued the
petitioners. And even granting that the private respondents [were] not members of the
association, the petitioners opined that the HIGC still ha[d] jurisdiction over the case
pursuant to Section 1 (a), Rule II of the Rules of Procedure of the HIGC.
"On 6 July 1998, the lower court, after having received private respondents opposition to
petitioners’ motion to dismiss and other subsequent pleadings filed by the parties, resolved
to deny petitioners’ motion to dismiss, finding that there existed no intra-corporate
controversy since the private respondents alleged that they ha[d] never joined the
association; and, thus, the HIGC had no jurisdiction to hear the case. On 18 July 1998,
petitioners submitted a Motion for Reconsideration, adding lack of cause of action as ground
for the dismissal of the case. This additional ground was anchored on the principle
of damnum absque injuria as allegedly there [was] no allegation in the complaint that the
private respondents were actually prevented from entering the subdivision and from having
access to their residential abode. On 17 August 1998, the court a quo, taking into
consideration the comment filed by the private respondents[,] on petitioners’ motion for
reconsideration and the pleadings thereafter submitted by the parties, denied the said motion
without however ruling on the additional ground of lack of cause of action x x x.
xxx xxx xxx
"On 18 August 1998, petitioners filed a motion to resolve defendants’ motion to dismiss on
ground of lack of cause of action. On 8 September 1998, after the petitioners and the private
respondents submitted their pleadings in support of or in opposition thereto, as the case may
be, the trial court issued an order denying the motion, x x x."6
On September 24, 1998, petitioners elevated the matter to the Court of Appeals via a Petition for
Certiorari.7
Ruling of the Court of Appeals
The Court of Appeals dismissed the Petition and ruled that the RTC had jurisdiction over the dispute.
It debunked petitioners’ contention that an intra-corporate controversy existed between the SCHA
and respondents. The CA held that the Complaint had stated a cause of action. It likewise opined
that jurisdiction and cause of action were determined by the allegations in the complaint and not by
the defenses and theories set up in the answer or the motion to dismiss.
Hence, this Petition.8
Issues
In their Memorandum, petitioners raise the following issues for the Court’s consideration:
"Whether or not Respondent Court of Appeals erred in upholding the jurisdiction of the court
a quo, ‘to declare as null and void the resolution of the Board of SCHA, decreeing that only
members [in] good standing of the said association, were to be issued stickers for use in
their vehicles.
II
"Whether or not private respondents are members of SCHA.
III
"Whether or not Respondent Court of Appeals erred in not ordering the dismissal of the
Complaint in Civil Case No. 98-10217 for lack of cause of action."9
In sum, the issues boil down to two: (1) Did the RTC have jurisdiction over the Complaint? and (2)
Did the Complaint state a cause of action?
This Court’s Rulings
The Petition has no merit.

First Issue:
Jurisdiction
Petitioners contend that the CA erred in upholding the trial court’s jurisdiction to declare as null and
void the SCHA Resolution decreeing that only members in good standing would be issued vehicle
stickers.
The RTC did not void the SCHA Resolution; it merely resolved the Motion to Dismiss filed by
petitioners by holding that it was the RTC, not the Home Insurance and Guaranty Corporation
(HIGC), that had jurisdiction over the dispute.
HIGC’s Jurisdiction
HIGC10 was created pursuant to Republic Act 580.11 Originally, administrative supervision over
homeowners’ associations was vested by law in the Securities and Exchange Commission (SEC).12
Pursuant to Executive Order (EO) No. 535, however,13 the HIGC assumed the regulatory and
adjudicative functions of the SEC over homeowners’ associations. Explicitly vesting such powers in
the HIGC is paragraph 2 of EO 535, which we quote hereunder:
"2. In addition to the powers and functions vested under the Home Financing Act, the
Corporation, shall have among others, the following additional powers:
(a) x x x; and exercise all the powers, authorities and responsibilities that are vested
in the Securities and Exchange Commission with respect to home owners
associations, the provision of Act 1459, as amended by P.D. 902-A, to the contrary
nothwithstanding;
(b) To regulate and supervise the activities and operations of all houseowners
associations registered in accordance therewith."
Moreover, by virtue of the aforequoted provision, the HIGC also assumed the SEC’s original and
exclusive jurisdiction to hear and decide cases involving controversies arising from intra-corporate or
partnership relations.14
In December 1994, the HIGC adopted the Revised Rules of Procedure in the Hearing of
Homeowners’ Disputes, pertinent portions of which are reproduced below:
"RULE II
Disputes Triable by HIGC/Nature of Proceedings
Section 1. Types of Disputes. - The HIGC or any person, officer, body, board or committee
duly designated or created by it shall have jurisdiction to hear and decide cases involving the
following:
a) Devices or schemes employed by or any acts of the Board of Directors or officers

of the association amounting to fraud and misrepresentation which may be
detrimental to the interest of the public and/or of the members of the association or
the association registered with HIGC
b) Controversies arising out of intra-corporate relations between and among
members of the association, between any or all of them and the association of which
they are members; and between such association and the state/general public or
other entity in so far as it concerns its right to exist as a corporate entity.
xxx xxx x x x."
The aforesaid powers and responsibilities, which had been vested in the HIGC with respect to
homeowners’ associations, were later transferred to the Housing and Land Use Regulatory Board
(HLURB) pursuant to Republic Act 8763.15
Are Private Respondents SCHA Members?
In order to determine if the HIGC has jurisdiction over the dispute, it is necessary to resolve
preliminarily -- on the basis of the allegations in the Complaint -- whether private respondents are
members of the SCHA.
Petitioners contend that because the Complaint arose from intra-corporate relations between the
SCHA and its members, the HIGC therefore has no jurisdiction over the dispute. To support their
contention that private respondents are members of the association, petitioners cite the SCHA’s
Articles of Incorporation16 and By-laws17 which provide that all landowners of the Sta. Clara
Subdivision are automatically members of the SCHA.
We are not persuaded. The constitutionally guaranteed freedom of association18 includes the
freedom not to associate.19 The right to choose with whom one will associate oneself is the very
foundation and essence of that partnership.20 It should be noted that the provision guarantees the
right to form an association. It does not include the right to compel others to form or join one.21
More to the point, private respondents cannot be compelled to become members of the SCHA by
the simple expedient of including them in its Articles of Incorporation and By-laws without their
express or implied consent. True, it may be to the mutual advantage of lot owners in a subdivision to
band themselves together to promote their common welfare. But that is possible only if the owners
voluntarily agree, directly or indirectly, to become members of the association. True also,
memberships in homeowners’ associations may be acquired in various ways -- often through deeds
of sale, Torrens certificates or other forms of evidence of property ownership. In the present case,
however, other than the said Articles of Incorporation and By-laws, there is no showing that private
respondents have agreed to be SCHA members.
As correctly observed by the CA:
"x x x. The approval by the SEC of the said documents is not an operative act which bestows
membership on the private respondents because the right to associate partakes of the
nature of freedom of contract which can be exercised by and between the homeowners
amongst themselves, the homeowners’ association and a homeowner, and the subdivision
owner and a homeowner/lot buyer x x x."22
No Privity of Contract
Clearly then, no privity of contract exists between petitioners and private respondents. As a general
rule, a contract is a meeting of minds between two persons.23 The Civil Code upholds the spirit over
the form; thus, it deems an agreement to exist, provided the essential requisites are present. A
contract is upheld as long as there is proof of consent, subject matter and cause. Moreover, it is
generally obligatory in whatever form it may have been entered into. From the moment there is a
meeting of minds between the parties, it is perfected.24
As already adverted to, there are cases in which a party who enters into a contract of sale is also
bound by a lien annotated on the certificate of title. We recognized this in Bel Air Village Association,
Inc. v. Dionisio,25 in which we ruled:
"There is no dispute that Transfer Certificate of Title No. 81136 covering the subject parcel of
land issued in the name of the petitioner contains an annotation to the effect that the lot
owner becomes an automatic member of the respondent Bel-Air Association and must abide
by such rules and regulations laid down by the Association in the interest of the sanitation,
security and the general welfare of the community. It is likewise not disputed that the
provision on automatic membership was expressly annotated on the petitioner’s Transfer
Certificate of Title and on the title of his predecessor-in-interest.
"The question, therefore, boils down to whether or not the petitioner is bound by
such annotation.
"Section 39 of Art. 496 (The Land Registration Act) states:
‘Sec. 39. Every person receiving a certificate of title in pursuance of a decree of

registration, and every subsequent purchaser of registered land who takes a
certificate of title for value in good faith shall hold the same free of all encumbrances
except those noted on said certificate x x x.’" (Italics supplied)
The above ruling, however, does not apply to the case at bar. When private respondents purchased
their property in 1974 and obtained Transfer Certificates of Title Nos. T-126542 and T-127462 for
Lots 11 and 12 of Block 37 along San Jose Avenue in Sta. Clara Subdivision, there was no
annotation showing their automatic membership in the SCHA. Thus, no privity of contract arising
from the title certificate exists between petitioners and private respondents.
Further, the records are bereft of any evidence that would indicate that private respondents intended
to become members of the SCHA. Prior to the implementation of the aforesaid Resolution, they and
the other homeowners who were not members of the association were issued non-member gate
pass stickers for their vehicles. This fact has not been disputed by petitioners. Thus, the SCHA
recognized that there were subdivision landowners who were not members thereof, notwithstanding
the provisions of its Articles of Incorporation and By-laws.
Jurisdiction Determined by Allegations in the Complaint
It is a settled rule that jurisdiction over the subject matter is determined by the allegations in the
complaint. Jurisdiction is not affected by the pleas or the theories set up by the defendant in an
answer or a motion to dismiss. Otherwise, jurisdiction would become dependent almost entirely upon
the whims of the defendant.26
The Complaint does not allege that private respondents are members of the SCHA. In point of fact,
they deny such membership. Thus, the HIGC has no jurisdiction over the dispute.
Petitioners likewise contend that even if private respondents are not members of the SCHA, an intra-
corporate controversy under the third type of dispute provided in Section 1(b) of Rule II of the HIGC
Rules exists. Petitioners posit that private respondents fall within the meaning of "general public."
We are not convinced.
First, the third type of dispute refers only to cases wherein an association’s right to exist as a
corporate entity is at issue. In the present case, the Complaint filed by private respondents refers to
the SCHA’s acts allegedly amounting to an impairment of their free access to their place of
residence inside the Sta. Clara Subdivision.27 The existence of SCHA as a corporate entity is clearly
not at issue in the instant case.
Second, in United BF Homeowners’ Association v. BF Homes, Inc.,28 we held that Section 1(b), Rule
II of HIGC’s "Revised Rules of Procedure in the Hearing of Homeowners’ Disputes" was void. The
HIGC went beyond its lawful authority provided by law when it promulgated its revised rules of
procedure. There was a clear attempt to unduly expand the provisions of Presidential Decree 902-A.
As provided by the law, it is only the State -- not the "general public or other entity" -- that can
question an association’s franchise or corporate existence.29
To reiterate, the HIGC exercises limited jurisdiction over homeowners’ disputes. The law confines its
authority to controversies that arise from any of the following intra-corporate relations: (1) between
and among members of the association; (2) between any and/or all of them and the association of
which they are members; and (3) between the association and the state insofar as the controversy
concerns its right to exist as a corporate entity.30
It should be stressed that the Complaint here is for damages. It does not assert membership in the
SCHA as its basis. Rather, it is based on an alleged violation of their alleged right of access through
the subdivision and on the alleged embarrassment and humiliation suffered by the plaintiffs.
Second Issue:
Sufficiency of Cause of Action
Petitioners claim that the CA erred in not ordering the dismissal of the Complaint for lack of cause of
action. They argue that there was no allegation therein that private respondents were actually
prevented from entering the subdivision and gaining access to their residential abode.
This contention is untenable. A defendant moving to dismiss a complaint on the ground of lack of
cause of action is regarded as having hypothetically admitted all the factual averments in the
complaint. The test of the sufficiency of the allegations constituting the cause of action is whether,
admitting the facts alleged, the court can render a valid judgment on the prayers.31 This test implies
that the issue must be passed upon on the basis of the bare allegations in the complaint. The court
does not inquire into the truth of such allegations and declare them to be false. To do so would
constitute a procedural error and a denial of the plaintiff’s right to due process.32
A complaint states a cause of action when it contains these three essential elements: (1) the legal
right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the
defendant in violation of the said legal right.33
In the instant case, the records sufficiently establish a cause of action. First, the Complaint alleged
that, under the Constitution, respondents had a right of free access to and from their residential
abode. Second, under the law, petitioners have the obligation to respect this right. Third, such right
was impaired by petitioners when private respondents were refused access through the Sta. Clara
Subdivision, unless they showed their driver’s license for identification.
Given these hypothetically admitted facts, the RTC, in the exercise of its original and exclusive
jurisdiction,34 could have rendered judgment over the dispute.
We stress that, in rendering this Decision, this Court is not prejudging the main issue of whether, in
truth and in fact, private respondents are entitled to a favorable decision by the RTC. That will be
made only after the proper proceedings therein. Later on, if it is proven during the trial that they are
indeed members of the SCHA, then the case may be dismissed on the ground of lack of jurisdiction.
We are merely holding that, on the basis of the allegations in the Complaint, (1) the RTC has
jurisdiction over the controversy and (2) the Complaint sufficiently alleges a cause of action.
Therefore, it is not subject to attack by a motion to dismiss on these grounds.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. Costs against
petitioners.
SO ORDERED.
G.R. No. L-38354 June 30, 1989
BEL AIR VILLAGE ASSOCIATION, INC., plaintiff-appellee,

vs.
VIRGILIO V. DIONISIO, defendant-appellant.
GUTIERREZ, JR., J.:
This case was certified to us by the Court of Appeals pursuant to Section 31 of the Judiciary Act on
the ground that only questions of law are involved.
The antecedent facts are summarized in the decision of the then Court of First Instance of Rizal.
Seventh Judicial District, Branch 20, Pasig, Rizal in Civil Case No. 16980 to wit:
On January 22, 1972, plaintiff filed a complaint against the defendant in the municipal
court of Makati, Rizal, for the collection of the amount of P 2,100 plus penalty of 12%
per annum and P 751.30 as attorney's fees and expenses of litigation. The sum of P
2,100 represents the association dues assessed on the lot owned by the defendant
as member of the plaintiff association. On February 16, 1972, defendant filed an
answer traversing all the material allegations of the complaint and set up the
following special defenses; 1) That there is no privity of contract between the plaintiff
and the defendant; 2) that the collection of alleged dues from its members is in reality
an unlawful exercise of the power of taxation which is beyond the corporate power of
the plaintiff, 3) that the amount sought to be collected is unreasonable and
oppressive, 4) that the assessment of the dues upon the defendant in so far as he
has not voluntarily affiliated with plaintiff is illegal, immoral, contrary to law and public
policy, and 5) that the acts of plaintiff in compelling the defendant to be a member is
unconstitutional and outside the scope of its corporate power. Defendant therefore
sets up the counterclaim of P 2,000 as attorney's fees and expenses of litigation. On
May 19, 1972, the parties submitted the following stipulation of facts and prayed for
judgment to be rendered therein in accordance with said stipulation of facts:
STIPULATION OF FACTS
COME NOW the undersigned attorneys for the plaintiff and the defendant in the
above-entitled case, and to this Honorable Court respectfully submit the following
stipulation of facts:
1. That plaintiff was incorporated as corporation way back in August 25, 1957 for the
purposes stated in its Articles of Incorporation, copy of which as amended is
attached hereto as Annex 'A';
2. That the By-laws of the association, copy of which as amended is attached hereto
as Annex 'B', provides for automatic membership in the association for every owner
and purchaser of lots located inside the Bel Air Village as defined and bounded in the
Articles of Incorporation;
3. That without applying for membership in plaintiff association, defendant in this
case, like the other members, automatically became a member because he is the
registered owner of a lot located inside the Bel Air Village;
4. That in accordance with the By-Laws of the plaintiff, the association is run and
managed by a Board of Governors who (sic) exercises, among other things, the
power to assess and collect against every owner of the lot inside the Bel Air Village,
certain amounts for the operation and activities of the association;
5. That pursuant to the powers granted under the By-Laws, the Board of Governors
have assessed the owners of the lots inside the Bel Air Village, a sum to be paid
either quarterly, semi-annually or annually, computed on the basis of the area per
square meter of the lot owned by every member as follows:
a. During the period from 1962-1964, the basis of the assessment is

P 0.30 for every square meter of lot owned by the members inside
the Bel Air Village compound;
b. From l965-1968, the assessment was increased to P 0.35 for every

square meter;
c. From 1969-1971, the assessment was further increased to P 0.40

for every square meter;
d. Starting 1972, the assessment was changed to P0.50 for every

square meter of the lot owned by the members;
6. That under the By-laws, the foregoing assessments if not paid when due,
constitute a lien on the lots of the owners inside the Bel Air Village;
7. That defendant is the owner of a lot located inside the Bel Air Village with an area
of 525 square meters under Transfer Certificate of Title No. 81136 of the Register of
Deeds of Rizal;
8. That pursuant to the powers granted under the By-laws of the association, the
Board of Governors has made the following assessment on defendant's property on
the basis of the area per square meter of the lot owned by him as follows:
1962—525 sq. meters x P 0.30—P 157.50
1963—525 sq. meters x P 0.30—P 157.50
1964—525 sq. meters x P 0.30—P 157.50
1965—525 sq. meters x P 0.35—P 183.75
1966—525 sq. meters x P 0.35—P 183.75
1967—525 sq. meters x P 0.35—P 183.75
1968—525 sq. meters x P 0.35—P 183.75

1969—525 sq. meters x P 0.40—P 210.00
1970—525 sq. meters x P 0.40—P 210.00
1971—525 sq. meters x P 0.40—P 210.00
1972—525 sq. meters x P 0.50—P 262.50
TOTAL--------P 2,100.00
9. That the total amount of P 2,100 alleged in paragraph 4 of the complaint

represents the assessments of the plaintiff on the defendant in accordance with the
computation stated in paragraph 8 above;
10. That defendant protested the above assessments and refused to pay the same
inspite of repeated demands:
11. That as per Resolution No. 2-65 of the Board of Governors, copy hereof is
attached as Annex 'C', all annual association dues not paid on or before September
30 are considered delinquent and imposed an interest of 12% per annum until fully
paid;
12. That they are attaching to this stipulation as Annex 'D', the brochure of the
association which embodies the deed of restriction and rules & regulations governing
the lot owners inside the Bel Air Village.
WHEREFORE, it is respectfully prayed that judgment be rendered with the foregoing

stipulation of facts.
Manila for Makati, Rizal
May 18th, 1972.
(SGD.) FRANCISCO S. DIZON (SGD.) F.R. ARGUELLES, JR.
Counsel for Defendant Counsel for Plaintiff
Suite 311 ABC Building 517 Federation Center Bldg.
Escolta, Manila Binondo, Manila
The parties submitted an addendum to stipulation of facts as follows:
ADDENDUM TO STIPULATION OF FACTS
DATED MAY 18, 1972
COME NOW the undersigned attorneys for plaintiff and defendant in the above a title
case, and to his Honorable Court hereby respectfully submit the following additional
stipulation by incorporating to he Stipulation of Facts , dated May 18, 1972, the Bel
Air Village Association, Inc. 1971 Annual Report, to be marked as Annex "E" and
made an integral part thereof.
Manila for Makati, Rizal
June 3, 1972.
(SGD.) FRANCISCO DIZON (SGD.) F.R. ARGUELLES, JR.
Counsel for Plaintiff Counsel for PLaintiff
517 Federation Center Bldg. 517 Federation Center Bldg.
Binondo, Manila Dasmarinas cor. Muelle de
Binondo, Manila
The parties having filed their respective memoranda, the inferior court rendered its
decision dated July 31, 1972 in favor of the plaintiff pertinent portion of which reads
as follows:
xxx xxx xxx
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the

principal amount of P 2,100.00 plus interest thereon at the rate of 12% annually from
the year 1962 until the aforesaid amount is fully paid and to pay plaintiff the amount
of P 300.00 as and for attorney's fees and to pay the costs of suit.
SO ORDERED.
Appeal was perfected pursuant to Republic Act No. 6031.
This Court after examining the pleadings doubted its appellate jurisdiction because
issues not capable for pecuniary estimation were raised and decided in said inferior
court. Upon suggestion of the Court the parties on May 30, 1973 agreed in a joint
manifestation for this Court to decide the case in its original jurisdiction in order to
cure the defect. They likewise agreed to submit the case for decision based on the
stipulation of facts, heretofore quoted and the memoranda filed in the inferior court.
Upon suggestion of the Court the plaintiff filed its supplemental memorandum on
June 20, 1973." (At pp. 31-37, Rollo)
The decision of the Municipal Court of Makati was affirmed.
Defendant Dionisio then filed a petition for review of the Court of First Instance decision with the
Court of Appeals. As stated earlier, the appellate court elevated the case to us the issues raised
being purely questions of law.
The resolution of the petition hinges on whether or not the respondent association can lawfully
collect the questioned dues from the petitioner.
The petitioner insists that he is not liable to pay the dues on the following grounds:
1) The questioned assessment is a property tax outside the corporate power of

respondent association to impose.
2) Respondent association has no power to compel the petitioner to pay the

assessment for lack of privity of contract.
3) The questioned assessment should not be enforced for being unreasonable,

arbitrary, oppressive, confiscatory and discriminatory.
4) Respondent association is exercising governmental powers which should not be

sanctioned.
There is no dispute that Transfer Certificate of Title No. 81136 covering the subject parcel of land
issued in the name of the petitioner contains an annotation to the effect that the lot owner becomes
an automatic member of the respondent Bel-Air Association and must abide by such rules and
regulations laid down by the Association in the interest of the sanitation, security and the general
welfare of the community. It is likewise not disputed that the provision on automatic membership was
expressly annotated on the petitioner's Transfer Certificate of Title and on the title of his
predecessor-in-interest.
The question, therefore, boils down to whether or not the petitioner is bound by such annotation.
Section 39 of Art. 496 (The Land Registration Act) states:
Sec. 39. Every person receiving a certificate of title in pursuance of a decree of

registration, and every subsequent purchaser of registered land who takes a
certificate of title for value in good faith shall hold the same free of all encumbrances
except those noted on said certificate ... (Emphasis supplied.)
Thus, in the case of Tanchoco v. Aquino, (154 SCRA 1 [1987]), we ruled that purchasers of a
registered land are bound by the annotations found at the back of the certificate of title covering the
subject parcel of land. We stated:
... that when petitioners purchased on April 6, 1964 from Rafael Viola an undivided
(1/2) portion of Lot 314 and then on January 5, 1965 a 6/7 portion of the other half of
Lot 314 there was at the back of TCT No. 11682 covering Lot 314 an annotation of a
notice of lis pendens in favor of Donato Lajom, under Entry No. 19553/T-14707
(Rollo, p. 23), as follows:
Entry No. 19553/T-14707; Kind-Lis pendens in favor of Donato Lajom; Conditions-1/2

of the properties described in this title is the object of a complaint filed in Civil Case
No. 8077 of the C.F.I. of N.E.; date of instrument-Dec. 16, 1949; Date of Inscription-
Jan. 11, 1950 at 2:00 p.m.
Petitioner Pastor Tanchoco who holds office as Asst. Provincial Fiscal of Nueva Ecija
(Rollo, p. 30) could not have missed the import of such annotation. It was an
announcement to the whole world that a particular real property is in litigation,
serving as a warning that one who acquires an interest over said property does so at
his own risk, or that he gambles on the result of the litigation over said property.
Since petitioners herein bought the land in question with the knowledge of the
existing encumbrances thereon, they cannot invoke the right of purchasers in good
faith, and they cannot likewise have acquired better rights than those of their
predecessors in interest (Constantino v. Espiritu, 45 SCRA 557 [1972])"
In effect, the petitioner's contention that he has no privity of contract with the respondent association
is not persuasive. When the petitioner voluntarily bought the subject parcel of land it was understood
that he took the same free of all encumbrances except notations at the back of the certificate of title,
among them, that he automatically becomes a member of the respondent association.
One of the obligations of a member of the respondent association is to pay certain amounts for the
operation and activities of the association which is being collected by the Board of Governors. The
dues collected are intended for garbage collection, salary of security guards, cleaning and
maintenance of streets and street lights and establishments of parks. The amount to be paid by each
lot owner is computed on the basis of the area per square meter of the lot owned by every member.
The mode of payment as well as the purposes for which the dues are intended clearly indicate that
the dues are not in the concept of a property tax as claimed by the petitioner. They are shares in the
common expenses for necessary services. A property tax is assessed according to the value of the
property (Philippine Transit Association v. Treasurer of the City of Manila, et al. 83 Phil. 722 [1949])
but the basis of the sharing in this case is the area of the lot. The basis appears reasonable. The
dues are fees which a member of the respondent association is required to pay as his contribution to
the expenses incurred by the respondent association in hiring security guards, cleaning and
maintaining streets, street lights and other community projects for the benefit of all residents within
the Bel-Air Village. These expenses are necessary, valid, and reasonable for the particular
community involved.
The petitioner also objects to the assessment on the ground that it is unreasonable, arbitrary,
discriminatory, oppressive and confiscatory. According to him the assessment is oppressive
because the amount assessed is not based on benefits but on the size of the area of the lot,
discriminatory and unreasonable because only the owners of the lots are required to pay the
questioned assessment and not the residents who are only renting inside the village; and
confiscatory because under the by-Laws of the respondent association, the latter holds a lien on the
property assessed if the amount is not paid.
We agree with the lower court's findings, to wit:
The limitations upon the ownership of the defendant as clearly imposed in the
annotations of TCT No. 81136 do not contravene provisions of laws, morals, good
customs, public order or public policy. Since these limitations have been imposed
upon the contract of sale as admitted in the stipulation of facts, it is obvious that the
annotation of said lien and encumbrance that the defendant automatically becomes a
member of the plaintiff association and subject to its rules, regulations or resolutions
is valid, binding and enforceable.
The contention that this lien collides with the constitutional guarantee of freedom of
association is not tenable. The transaction between the defendants and the original
seller (defendant's immediate predecessor) of the land covered by TCT No. 81136 is
a sale and the conditions have been validly imposed by the said vendor/the same not
being contrary to law, morals and good customs and public policy. The fact that it has
been approved by the Land Registration Commission did not make it a governmental
act subject to the constitutional restriction against infringement of the right of
association. The constitutional proscription that no person can be compelled to be a
member of an association against his will applies only to government acts and not to
private transactions like the one in question.
The defendant cannot legally maintain that he is compelled to be a member of the

association against his will because the limitation is imposed upon his ownership of
property. If he does not desire to comply with the annotation or lien in question he
can at any time exercise his inviolable freedom of disposing of the property and free
himself from the burden of becoming a member of the plaintiff association. After all, it
is not imposed upon him personally but upon his ownership of the property. The
limitation and restriction is a limitation that follows the land whoever is its owner. It
does not inhere in the person of the defendant.
The Court therefore holds that the lien or encumbrance or limitation imposed upon
TCT No. 81136 is valid.
The second question has reference to the reasonableness of the resolution

assessing the monthly dues in question upon the defendant. The exhibits annexed to
the stipulation of facts describe the purpose or goals for which these monthly dues
assessed upon the members of the plaintiff including the defendant are to be
disbursed. They are intended for garbage collection, salary of security guards,
cleaning and maintenance of streets, establishment of parks, etc. Living in this
modern, complex society has raised complex problems of security, sanitation,
communitarian comfort and convenience and it is now a recognized necessity that
members of the community must organize themselves for the successful solution of
these problems. Goals intended for the promotion of their safety and security, peace,
comfort, and general welfare cannot be categorized as unreasonable. Indeed, the
essence of community life is association and cooperation for without these such
broader welfare goals cannot be attained. It is for these reasons that modem
subdivisions are imposing encumbrance upon titles of prospective lot buyers a
limitation upon ownership of the said buyers that they automatically become
members of homeowners' association living within the community of the subdivision.
Even assuming that defendant's ownership and enjoyment of the lot covered by TCT
No. 81136 is limited because of the burden of being a member of plaintiff association
the goals and objectives of the association are far greater because they apply to and
affect the community at large. It can be justified on legal grounds that a person's
enjoyment of ownership may be restricted and limited if to do so the welfare of the
community of which he is a member is promoted and attained. These benefits in
which the defendant participates more than offset the burden and inconvenience that
he may suffer.
It is contended that the dues are assessed not only upon owners who have
residences and houses on their lots but even upon those owners whose lots are
vacant or are being leased to others. It is therefore argued that this is discriminatory.
The Court disagrees. When the defendant bought the lot in question, it is assumed
that he is going to reside in this place. The limitation or encumbrance assailed in the
case at bar is for the assurance that the buyer of the lot will bird his house and live in
the Bel Air Village. Otherwise, the defendant can just speculate and sell his lot a
higher price and defeat the very purposes for which the encumbrance is imposed.
The Court holds that the limitation or lien imposed upon TCT No. 811136 is
reasonable. (pp.. 38-42, Rollo)
The lower court states that the defendant has occupied the lot for ten years up to the time of the
rendition of judgement. On grounds of equity alone, he should contribute his share in the community
expenses for security, street lights, maintenance of streets, and other services.
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The questioned decision
of the trial court is AFFIRMED.
SO ORDERED.
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP
Administrative Case No. MDD-1)
RESOLUTION
CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors
unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal
of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership
dues" to the IBP since the latter's constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said
resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III
of the By-Laws of the IBP, which reads:
.... Should the delinquency further continue until the following June 29, the Board
shall promptly inquire into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned.
On January 27, 1976, the Court required the respondent to comment on the resolution and letter
adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay
the membership fees due from him.
On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to
Edillon's comment: on March 24, 1976, they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were
required to submit memoranda in amplification of their oral arguments. The matter was thenceforth
submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety
and necessity of the integration of the Bar of the Philippines are in essence conceded. The
respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as
the Court Rule) 1 — in accordance with which the Bar of the Philippines was integrated — and to the
provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in
Section 10 of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of
this Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the
Court Rule:
SECTION 1. Organization. — There is hereby organized an official national body to

be known as the 'Integrated Bar of the Philippines,' composed of all persons whose
names now appear or may hereafter be included in the Roll of Attorneys of the
Supreme Court.
The obligation to pay membership dues is couched in the following words of the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. ...
The core of the respondent's arguments is that the above provisions constitute an invasion of his
constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his
status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues,
and that as a consequence of this compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the rights to liberty and property
guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of
the Court Rule and of the IBP By-Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of
Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but
is rather of an "administrative nature pertaining to an administrative body."
The case at bar is not the first one that has reached the Court relating to constitutional issues that
inevitably and inextricably come up to the surface whenever attempts are made to regulate the
practice of law, define the conditions of such practice, or revoke the license granted for the exercise
of the legal profession.
The matters here complained of are the very same issues raised in a previous case before the
Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the
Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all
these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study of all the arguments
adduced in Adm. Case No. 526 and the authoritative materials and the mass of
factual data contained in the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine Bar is 'perfectly constitutional and
legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.

An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished
from bar associations organized by individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an
official national body of which all lawyers are required to be members. They are, therefore, subject to
all the rules prescribed for the governance of the Bar, including the requirement of payment of a
reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which constitutes sufficient
reason for investigation by the Bar and, upon proper cause appearing, a recommendation for
discipline or disbarment of the offending member. 2
The integration of the Philippine Bar was obviously dictated by overriding considerations of public
interest and public welfare to such an extent as more than constitutionally and legally justifies the
restrictions that integration imposes upon the personal interests and personal convenience of
individual lawyers. 3
Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have
been uniformly and universally sustained as a valid exercise of the police power over an important
profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation, and takes part in one of the most
important functions of the State — the administration of justice — as an officer of the court. 4 The
practice of law being clothed with public interest, the holder of this privilege must submit to a degree
of control for the common good, to the extent of the interest he has created. As the U. S. Supreme
Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the
equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to
"adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall
see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of justice, and enable the Bar
to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the
Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973,
and the President of the Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the demands of pressing public
necessity.
The State, in order to promote the general welfare, may interfere with and regulate personal liberty,
property and occupations. Persons and property may be subjected to restraints and burdens in order
to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To
this fundamental principle of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted
power of the State to restrain some individuals from all freedom, and all individuals from some
freedom.
But the most compelling argument sustaining the constitutionality and validity of Bar integration in
the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5
(5) of Article X of the 1973 Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts,
and the admission to the practice of law and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the Supreme Court may
adopt rules of Court to effect the integration of the Philippine Bar under such
conditions as it shall see fit in order to raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public
responsibility more effectively.
Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No.
6397), and looking solely to the language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and
the admission to the practice of law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases regarding the admission to and
supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his
exercise of the said profession, which affect the society at large, were (and are) subject to the power
of the body politic to require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with some of his liberties. If
he did not wish to submit himself to such reasonable interference and regulation, he should not have
clothed the public with an interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely deal with them seriatim.
1. The first objection posed by the respondent is that the Court is without power to compel him to
become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is
unconstitutional for it impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative
of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which he is not already a member. He
became a member of the Bar when he passed the Bar examinations. 7 All that integration actually
does is to provide an official national organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program — the lawyers.9
Assuming that the questioned provision does in a sense compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision of the Court Rule requiring
payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court,
under its constitutional power and duty to promulgate rules concerning the admission to the practice
of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) —
which power the respondent acknowledges — from requiring members of a privileged class, such as
lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession
to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty provisions would amount to a
deprivation of property without due process and hence infringes on one of his constitutional rights.
Whether the practice of law is a property right, in the sense of its being one that entitles the holder of
a license to practice a profession, we do not here pause to consider at length, as it clear that under
the police power of the State, and under the necessary powers granted to the Court to perpetuate its
existence, the respondent's right to practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure
is recognize, then a penalty designed to enforce its payment, which penalty may be avoided
altogether by payment, is not void as unreasonable or arbitrary. 12
But we must here emphasize that the practice of law is not a property right but a mere
privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance
with the lawyer's public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a
lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension,
disbarment and reinstatement of lawyers and their regulation and supervision have been and are
indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding
such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar
Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court — appropriate, indeed necessary, to the proper
administration of justice ... the argument that this is an arbitrary power which the court is arrogating
to itself or accepting from the legislative likewise misconceives the nature of the duty. It has
limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a
brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an
honorable profession and to protect the public from overreaching and fraud. The very burden of the
duty is itself a guaranty that the power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to
the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the
practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in
the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the
Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent
Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from
the Roll of Attorneys of the Court.
Fernando, Teehankee, Barredo, Makasia

Consti-10 2 2019

Uploaded by

Copyright:

Available Formats

Consti-10 2 2019

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Consti-10 2 2019

Uploaded by

Copyright:

Available Formats

G.R. No.

203335 February 11, 2014

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

The Facts and the Case

The Issues Presented

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

The Rulings of the Court

Section 4(a)(1) provides:

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

Section 4(a)(3) provides:

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

(iii) Acquired without right or with intellectual property interests in it.

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

Section 4(b)(3) provides: