Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-38753 August 25, 1982

RAFAEL S. MERCADO, petitioner, vs.COURT OF FIRST INSTANCE OF RIZAL, BRANCH V, CITY FISCAL OF QUEZON CITY and VIRGINIA M. MERCADO, respondents.

Francisco R. Sotto for petitioner.

Clemente M. Soriano for respondents.

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FERNANDO, C.J.:1äwphï1.ñët

The relevant question in this suit is whether or not the landmark case of United States v. Bustos, 1 enunciating the doctrine that the free speech and free press guarantees of the Constitution constitute a bar to prosecutions for libel arising from a communication addressed to a superior complaining against the conduct of a subordinate, is impressed with significance. The information in this certiorari, mandamus and prohibition proceeding to quash an information for libel quoted in full the alleged offensive telegram. Thus: "[Secretary David Consunji Department of Public Works and [Communications] Manila In line with President Marcos appeal to give information on undesirable employees in the government service to achieve the objectives of the New Society request that investigation image of the activities of Mrs. Virginia Mercado of Public Service Commission as we have reason to believe that she has enriched herself thru corrupt practices considering that she has properties and spending above what her salary can afford with the husband jobless stop If investigation confirms this we trust you take necessary action stop In case you need further details wire me at 101 Mariano Cuenco Quezon City and I will give further details stop Expecting prompt action on this matter. Rafael Mercado]" 2 It closed with the assertion that Virginia Mercado, private respondent, "never enriched herself in office." There was first a motion to dismiss filed by petitioner Ramon Mercado on the ground of the telegram being a privileged communication. It was denied by the lower court.ït¢@lFºThereafter, through another counsel, came a motion to quash, alleging that the facts charged do not "constitute an offense." Again, it met with a denial. A motion for reconsideration having proved futile, the present proceeding was instituted.

This Court required comment from respondents. In the comment submitted, the stress was on the absence of any privilege, there being malice and bad faith. As stated therein: "The communication in issue was made by the petitioner with evident malice and bad faith, a matter explicitly stated in the information filed with the respondent Court, and the pretense that it was made allegedly in line with the President's appeal to give information on undesirable employees in the government service, cannot cover up such fact. Malice in fact and bad faith on the part of the petitioner, and/or that he was motivated by vengeance and ill-will in making the said communication, is shown by, and can be established by the prosecution thru the testimony of the private respondent and the following documentary evidence: a) On October 14, 1972, petitioner filed a letter-complaint with the Chairman of the Board of Transportation, against the private respondent, for alleged grave violations of the Rep. Act No. 2260 and civil service rules [with a true copy of the said complaint attached]; b)

Fourteen (14) days after the filing of the aforementioned administrative complaint by petitioner against the private respondent, the said petitioner sent the subject libelous telegram or communication to the Secretary of Public Works and Communication, which was indorsed for investigation to the said Board of Transportation on October 31, 1972, by first endorsement of the said Department Secretary, dated Oct. 31, 1972 to the Chairman of the Board of Transportation [with a true copy of the said first indorsement attached]; c) On November 23, 1972, the petitioner filed an amended administrative complaint against the private respondent with the same Board of Transportation docketed therein as Adm. Case No. 72-1, charging the private respondent with dishonesty, pursuit of private business or corrupt practices, and misconduct or discourtesy [with a true copy of the said amended compliant attached]; d) The private respondent, submitted her answer to the said administrative charges, and after due hearing, the Board of Transportation rendered a decision on June 26, 1973, finding the herein private respondent as innocent of the charges, and dismissing the complaint filed against her [with a true copy of the said decision attached]; e) On July 17, 1973 petitioner, as complainant therein, filed a motion for reconsideration of the decision of the Board of Transportation, but the said Board, in an order issued on August 29, 1973, denied said motion for reconsideration for lack of merit [with a copy of said order attached]; f) While the Administrative Case No. 72-1 was pending determination before the Board of Transportation, petitioner, to further harass and malign the good character and reputation of the private respondent, filed with the Constabulary Highway Patrol Group (CHPG), a complaint against the private respondent and her husband Lorenzo M. Mercado accusing them of selling a Ford Willys engine, which was carnapped. The said office, however, after due hearing, issued a resolution on February 9, 1973, recommending that the said case be closed for lack of evidence [with a copy of the said resolution attached]; g) Also during the pendency of the administrative complaint filed by petitioner against the private respondent in the Board of Transportation, petitioner filed with the Criminal Investigation Service (CIS), PC, Camp Crame, Quezon City, a complaint for corrupt practices against the private respondent; and after due investigation the CIS, in answer to the letter of private respondent's counsel, dated March 24, 1973 [with a true copy attached]. requesting information about the result of the said investigation, sent a letter to said counsel, dated March 27, 1973, advising him that the said case is considered closed for insufficiency of evidence [with a copy of the said letter attached]." 3

The comment was considered as answer and the case was set for hearing. Prior to such hearing, there was a motion by petitioner to file memorandum in lieu of oral argument. As the motion was not acted upon before the date set for hearing, the parties appeared. Preliminary questions were asked. They were then required to file simultaneously their memoranda. Instead of just filing a memorandum, petitioner had a motion to admit amended petition enclosing with such motion the amended petition. The memorandum filed by him was on the basis thereof. The amendments, however, did not affect the fundamental question raised as to whether or not the telegram being qualifiedly privileged should be the basis for the special civil action for certiorari, mandamus and prohibition. Respondents in due time, after seeking an extension, filed their memorandum. Thereafter, petitioner even submitted a manifestation, in effect reiterating contentions previously made.

In the light of the above pleadings, this Court after a careful study, holds that certiorari to annul the order denying the motion to quash as well as the motion for reconsideration does not lie. Neither should respondent court be ordered to dismiss Criminal Case No. Q-2936, the criminal complaint for libel against petitioner. Nor should the court be prohibited from hearing the aforesaid criminal action. This petition lacks merit.

1. United States v. Bustos, 4 as mentioned at the outset, is a landmark decision. It is to the credit of the Supreme Court of the Philippines that such a ruling antedated by thirty-six years, a similar doctrine announced by the United States Supreme Court, 5 to the effect that a libel prosecution must likewise survive the test of whether or not the offending publication is within the guarantees of free

speech and free press. To keep such guarantees, if not inviolate, at the very least truly meaningful, certainly calls for such an approach. ït¢@lFº The judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so.

2. Justice Malcolm, however, is careful to point out that qualified privilege, and this is one such instance, may be "lost by proof of malice." 6 His opinion continues: " 'A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable.' (Harrison vs. Bush, 5 E. & B., 344; 1 Jur. [N.S.], 846; 25 L. J. Q. B. 25; 3 W.R., 474; 85 E.C.L., 344.)" 7 He then gave what was referred to by him as a "pertinent illustration of the application of qualified privilege, " namely, "a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege." 8 What casts doubt on the good faith of petitioner is a summary of his conduct, viz a viz private respondent: a letter complaint for grave violation of Republic Act No. 2260 and civil service rules was filed by him with the Chairman of the Board of Transportation on October 14, 1972. Fourteen days later, on October 28, 1972, the telegram subject of this litigation, was sent to the Secretary of Public Works and Communications. Then on November 23, 1972, there was an amended complaint with the Board of Transportation to include such charges as dishonesty, pursuit of private business or corrupt practices and misconduct. The Board of Transportation found private respondent innocent, in an order of June 26, 1973. There was a motion for reconsideration on July 17, 1973 filed by petitioner. It was denied on August 29, 1973 and during the pendency of such administrative case, petitioner not content, filed with the Constabulary Highway Patrol Group a complaint against private respondent and her husband, a relation, accusing them of selling a Ford Willys engine, which was carnapped. After due hearing, a resolution was issued recommending that said case be closed for lack of evidence. Again, during the pendency of such administrative complaint, petitioner filed with the Criminal Investigation Service, a complaint for corrupt practices against private respondent, likewise found without support in the evidence submitted. The tenacity with which petitioner had pursued a course of conduct on its face would seem to indicate that a doubt could reasonably be entertained as to the bona fides of petitioner.ït¢@lFº The prosecution should be given the opportunity then of proving malice.

3. Respondents have in their favor a decision of this Court supporting their stand. In People v. Monton, 9 the question of whether or not a motion to quash based on a qualified privilege should be upheld was decided adversely against the claim of those accused of libel, This Court made clear that malice can be shown. It "simply puts the burden of doing so on the prosecution." 10 The ponencia of then Justice, later Chief Justice, Makalintal distinguished the Bustos decision, thus: "That case is not here applicable, because the acquittal of the accused therein on the ground that the defamatory imputation was qualifiedly privileged was adjudged only after trial, wherein the prosecution tried to establish, although unsuccessfully, the element of malice." 11 Further, the opinion stated: " It need only be added that in the instant case the information alleges that the defendants, appellees here, wrote and sent the subject letter to the President 'with malicious intent and evil motive of attacking,

injuring and impeaching the character, honesty, integrity, virtue and reputation of one Jose J. Monteclaro ... and with malicious intent of exposing (him) to public hatred, contempt, ridicule, discredit and dishonor, without any justifiable motive.' Under the foregoing allegation, the prosecution is entitled to go to trial and present the necessary evidence to prove malice; and the denial, to it of the opportunity to do so, upon the defendants' motion to quash, constitutes reversible error." 12

WHEREFORE, the petition is dismissed.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 107566             November 25, 2004

BAGUIO MIDLAND COURIER, REPRESENTED BY ITS PRESIDENT AND GENERAL MANAGER, OSEO HAMADA AND CECILLE AFABLE, EDITOR-IN-CHIEF, petitioners, vs.THE COURT OF APPEALS (FORMER SP, 6TH DIVISION) AND RAMON LABO, JR., respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a petition for review on certiorari seeking to set aside the Decision1 of the Court of Appeals, dated 07 January 1992, and the Resolution,2 dated 29 September 1992, reversing the decision of the Regional Trial Court (RTC), dated 14 June 1990, which dismissed herein private respondent's claim for damages.

Culled from the records are the following facts:

During the time material to this case, petitioner Oseo C. Hamada (Hamada) was the president and general manager of the Baguio Printing and Publishing Co., Inc., which publishes the Baguio Midland Courier, a weekly newspaper published and circulated in Baguio City and other provinces within the Cordillera region. He was also, at that time, the business manager of said newsweekly. Petitioner Cecille Afable (Afable) was Baguio Midland Courier's editor-in-chief and one of its columnists who ran the column "In and Out of Baguio."

On the other hand, private respondent Ramon L. Labo, Jr., was among the mayoralty candidates in Baguio City for the 18 January 1988 local elections.3 Prior to this, in 1984, private respondent had already embarked on a political career by running for a seat in the former Batasang Pambansa

during which time he appointed a certain Benedicto Carantes (Carantes) as his campaign manager. It appears that as part of the campaign propaganda for private respondent in the 1984 local elections, political ads appeared in the various issues of Baguio Midland Courier and campaign paraphernalia were printed by Baguio Printing and Publishing Co., Inc., on his behalf.

Apart from his political endeavors, private respondent was also an active member of the civic group Lions Club having been elected governor of said organization in 1984, 1986, and 1988.

Before the 18 January 1988 local elections, petitioner Afable wrote in her column a series of articles dealing with the candidates for the various elective positions in Baguio City. Quoted hereunder are excerpts from said articles, as well as the respective dates when they were published in the Baguio Midland Courier –

January 3, 1988

. . . Of all the candidates for mayor, Labo has the most imponderables about him, people would ask, "Can he read and write?" Why is he always talking about his Japanese father-in-law? Is he really a Japanese Senator or a barrio kapitan? Is it true that he will send P18 million aid to Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was refused because he has not yet paid his account of the last time he was a candidate for Congress. We will accept all advertisements for him if he pays his old accounts first.4

January 10, 1988

I heard that the "Dumpty in the egg" is campaigning for Cortes. Not fair. Some real doctors are also busy campaigning against Labo, because he has not also paid their medical services with them. Since he is donating millions he should settle his small debts like the reportedly insignificant amount of P27,000 only. If he wins several teachers were signifying to resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio.5

Claiming that the aforequoted portions of petitioner Afable's column were tainted with malice, private respondent instituted separate criminal and civil actions for libel against herein petitioners. In a resolution, dated 26 December 1988, the Department of Justice dismissed the criminal case due to insufficiency of evidence6 while the civil suit was raffled off to RTC, Branch 6, Baguio City.

In the complaint for damages, private respondent alleged that in her 03 January 1988 and 10 January 1988 columns, petitioner Afable made it appear that he (private respondent) could not comply with his financial obligations; that Yuko Narukawa Labo (Narukawa Labo), his co-plaintiff in the case before the trial court, was accused of misrepresenting her social status to the general public thereby subjecting her to public ridicule; that the subject articles were written solely for the purpose of destroying his reputation, integrity, and personality as well as that of Ms. Narukawa Labo; and that said articles were false, untrue, libelous, and published with evil intent. Private respondent and Ms. Narukawa Labo, therefore, prayed for moral damages, exemplary damages, litigation expenses, attorney's fees, and costs of litigation.

Prior to filing their respective answers, petitioners filed separate motions to dismiss7 upon the ground that there was failure to comply with Section 6 of Presidential Decree (P.D.) No. 1508,8 otherwise known as the Katarungang Pambarangay Law, which required the referral of certain disputes to the barangay conciliation process before they are filed in court. Petitioner Hamada also claimed that the complaint stated no cause of action.

On 05 April 1988, private respondent and Ms. Narukawa Labo filed a motion with leave of court to amend and admit attached amended complaint.9 Impleaded in the amended complaint10 was the Baguio Printing and Publishing Co., Inc., as the publisher of the Baguio Midland Courier.

In its Order, dated 12 April 1988,11 the trial court denied petitioners' motions to dismiss. According to the trial court, as one of the parties to this case was a corporation, P.D. No. 1508 was not applicable as said statute pertained only to actions involving natural persons. In the same order, the trial court granted private respondent and Ms. Narukawa Labo's motion to admit their amended complaint and directed the petitioners to file their answers.

In their answer,12 petitioners Baguio Midland Courier and Hamada denied that petitioner Afable's 03 and 10 January 1988 articles were libelous. They also claimed that per their company's records, private respondent still owed them a certain sum of money for the political ads and campaign paraphernalia printed by Baguio Printing and Publishing Co., Inc., during private respondent's 1984 campaign, and that the 03 January 1988 column did not accuse Ms. Narukawa Labo of misrepresenting herself before the public. Moreover, they asserted that petitioner Afable's write-ups were fair comments on facts and reports that were of public interest as private respondent was a mayoralty candidate at that time. Finally, petitioners Baguio Midland Courier and Hamada interposed counterclaims for moral damages, exemplary damages, attorney's fees, and costs.

In her answer,13 petitioner Afable also denied that the quoted portions of her 03 and 10 January 1988 column were libelous, insisting that they were devoid of malice and "at most contained valid and timely doubts."14 She also contended that the contents of her column were protected by the constitutional guarantees of freedom of speech and of the press and that the same were privileged as they dealt with a public figure. Petitioner Afable likewise sought counterclaims for moral damages, exemplary damages, and attorney's fees.

During the pre-trial of the case on 31 March 1989, the parties agreed to limit the issues to the following: (1) whether the published items were libelous, false and malicious; (2) whether plaintiffs below were entitled to damages; and (3) whether petitioners (defendants therein) were entitled to damages as claimed in their respective counterclaims.

On 17 July 1989, private respondent's counsel manifested before the trial court that Ms. Narukawa Labo would no longer testify in support of the allegations in the amended complaint as far as they pertain to her.15 In addition, the 03 January 1988 article was no longer offered in evidence by the private respondent's counsel thus, the trial court interpreted this development to mean that the same ceased to be a part of this suit. The court a quo thereafter proceeded with the trial of the case taking into consideration only the 10 January 1988 column.

In the trial that ensued, private respondent testified that he felt that the phrase "dumpty in the egg" referred to him, interpreting the same to mean someone who is a failure in his business undertakings.16 Private respondent asserted that such allegation was baseless as he was successful in his various endeavors abroad. With regard to the remainder of the article, private respondent insisted that petitioner Afable made it appear to the public that he owed P27,000 in unpaid medical expenses while in truth, he could not remember having been hospitalized.17

Subsequently, private respondent presented Dr. Pedro Rovillos, his fellow Lions Club member, who testified that he understood the term "dumpty in the egg" to mean "a zero or a big lie."18 He further testified that the 10 January 1988 article painted private respondent as a "balasubas"19 due to the latter's alleged failure to pay his medical expenses.

On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino), Baguio Printing and Publishing Co., Inc.'s, bookkeeper and accountant, as their first witness. According to Lambino, Baguio Printing and Publishing Co., Inc., sent several statements of accounts and demand letters to private respondent pertaining to his unpaid obligations amounting to P27,415 which he incurred during his campaign for the Batasang Pambansa in 1984.20She further testified that despite the repeated demands to private respondent, the aforementioned obligations remained unpaid.21

Thereafter, petitioner Hamada himself took the witness stand. In his testimony, petitioner Hamada stated that as the president and general manager of the Baguio Printing and Publishing Co., Inc., and as the business manager of the Baguio Midland Courier, he only dealt with the business and advertising aspects of their newspaper business and that the contents of the articles appearing in the pages of the Baguio Midland Courier were overseen by the rest of the staff.22 In addition, petitioner Hamada also corroborated the earlier testimony of Lambino with respect to the outstanding obligations of private respondent.

On 20 December 1989, Carantes took the witness stand for the petitioners. Carantes testified that he was appointed as private respondent's campaign manager when the latter ran for assemblyman in Batasang Pambansa in 1984 and that in his capacity as campaign manager,23 he hired the services of a certain Noli Balatero to oversee the printing of campaign paraphernalia and publication of political advertisements of private respondent.24 Carantes further testified that the P27,415 indebtedness to Baguio Printing and Publishing Co., Inc., had remained unpaid because the campaign funds private respondent entrusted to him were already fully exhausted. Besides, according to Carantes, the campaign materials printed by the Baguio Printing and Publishing Co., Inc., and political advertisements published in Baguio Midland Courier were no longer covered by the agreement he had with Balatero. However, these materials were printed and published upon the instructions of one Atty. Conrado Bueno who acted as private respondent's "unofficial campaign manager" during the said election. Carantes thus concluded that private respondent was supposed to pay for these campaign materials and advertisements before or after the 1984 election.

For her part, petitioner Afable acknowledged having written the 10 January 1988 article but denied that the same was malicious and intended to destroy private respondent's reputation and integrity; that the phrase "dumpty in the egg" referred to Horato Aquino who was among the candidates for the 1988 local elections in Baguio City; and that the P27,000 pertained to private respondent's unpaid obligation to Baguio Printing and Publishing Co., Inc., the exact amount of which was P27,415.

In its decision, dated 14 June 1990, the trial court dismissed the complaint for lack of merit. According to the trial court, the article in question was privileged and constituted fair comment on matters of public interest as it dealt with the integrity, reputation, and honesty of private respondent who was a candidate for local elective office at that time.

This decision of the trial court was, however, reversed by the appellate court in a decision, dated 07 January 1992, the dispositive portion of which reads:

Construed in the light of the facts and the principles on the matter, and under the plain language of the applicable law, We hold that the evidence was sufficient to prove by preponderance of evidence that the defendants were GUILTY of committing libel on the person of the complainant Ramon Labo, Jr. and should be liable to pay damages. The decision of the trial court is hereby REVERSED and SET ASIDE and the defendants are hereby ordered to pay the plaintiffs as follows:

1) The amount of P200,000.00 as moral damages;

2) The amount of P100,000.00 as exemplary damages;

3) The amount of P50,000.00 for attorney's fees plus costs of litigation.25

In brushing aside the conclusion reached by the trial court, the Court of Appeals noted that private respondent was, at the time the article in question was published, not a public official but a private citizen seeking an elective office and petitioner Afable's article was intended to impeach his honesty, virtue or reputation and to make him appear in the eyes of the public as unfit for public office.

The appellate court also declared that the malicious nature of the article may be deduced from the fact that it was published in the Baguio Midland Courier a few days before the scheduled local elections and from the style and tone of writing employed by petitioner Afable. According to the Court of Appeals, while the entire article was composed of ten paragraphs and referred to several unnamed personalities, it was only in the disputed paragraph where a specific individual was named – herein private respondent. The appellate court therefore concluded that the phrase "dumpty in the egg" could only refer to private respondent and the claimed P27,000 indebtedness is imputable solely to him.

Petitioners thereafter filed their respective motions for reconsideration26 of the aforementioned decision of the Court of Appeals but these were denied through a resolution27 of the appellate court, dated 29 September 1992. Thus, petitioners now come before us raising the following issues:

I

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT "THERE IS GOOD REASON AND REASONABLE GROUND TO ASSUME THAT THE PUBLICATION OF THE LIBELOUS ARTICLES WAS A MANIFESTATION OF THE SPOUSES' (DEFENDANTS OSEO HAMADA and CECILLE AFABLE) THINKING ON THE MERIT OR DEMERIT OF CANDIDATES FOR BAGUIO CITY MAYOR FOR THE JANUARY 18, 1988 ELECTIONS" SINCE THEY ARE NOT SPOUSES NOR RELATED TO ONE ANOTHER.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT PLAINTIFF-APPELLANT RAMON LABO, JR. WAS THE ONE REFERRED TO AS THE "DUMPTY IN THE EGG."

III

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT THE PORTION OF THE SUBJECT ARTICLE WHICH STATES THAT "SINCE HE IS DONATING MILLIONS HE SHOULD SETTLE HIS SMALL DEBTS LIKE THE REPORTEDLY INSIGNIFICANT AMOUNT OF P27,000.00" REFERS TO AN INDEBTEDNESS OF LABO TO THE REAL DOCTORS AND NOT TO THE BAGUIO MIDLAND COURIER.

IV

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THERE WAS MALICE WHEN THE DEFENDANT-APPELL(ANT) CECILLE AFABLE INVITED

PUBLIC ATTENTION ON LABO'S PRIVATE LIFE BEING A CANDIDATE FOR THE HIGHEST PUBLIC OFFICE IN THE CITY OF BAGUIO OR THAT THE DEFENDANTS "WERE ACTUALLY NOT MOTIVATED BY GOOD AND JUSTIFIABLE ENDS" IN PUBLISHING SAID ARTICLES ABOUT THE PRIVATE RESPONDENT.

V

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN REVERSING THE DECISION OF THE TRIAL COURT DISMISSING THE COMPLAINT FOR LACK OF MERIT.28

In a manifestation dated 10 November 1993, we were informed of the death of petitioner Hamada. In our resolution of 08 December 1993, we resolved to substitute the estate of Oseo C. Hamada, for the deceased petitioner Hamada.29

The Court's Ruling

We shall first address the contention of petitioners with regard to alleged errors of facts committed by the Court of Appeals. While we adhere to the principle that findings of fact of the appellate court are binding and conclusive upon us,30 such adherence has not prevented this Court from setting aside the findings of fact of the Court of Appeals when circumstances so warrant. In the recent case of The Insular Life Assurance Company, Ltd. v. Court of Appeals and Sun Brothers & Company,31 this Court had the occasion to enumerate the exceptions to the general rule as regards the conclusiveness of the findings of fact of the appellate court, to wit: "(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of facts are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion."32

In the case at bar, except for numbers (1), (6), (9), and (10), all of the above exceptions are present.

First. Contrary to the findings of the Court of Appeals that private respondent was the only candidate named in petitioner Afable's column on 10 January 1988, said article actually dealt with the other named candidates for the 1988 local elections in Baguio City and Benguet. A perusal of said article would likewise reveal that it contained not only the opinion of petitioner Afable regarding private respondent but also her take on the other issues involving the other candidates. It would be grave error to impute malice on the subject article based upon a finding that private respondent was unduly singled out by petitioner Afable in her column. In this regard, we dismiss the following conclusion of the appellate court:

. . . Malice may also be inferred from the style and tone of the publication. The entire column on "In and Out of Baguio" on January 10 was composed of ten paragraphs and each paragraph featured or referred to a single person without knowing the person; however, in the second paragraph which mentions the non-payment of P27,000.00, the complainant [private respondent herein] was specifically mentioned in name; hence, no amount of

reasoning would erase the fact that the dumpty in the egg was referring to Labo.33(Emphasis supplied)

Second. From the abovequoted portion of the Court of Appeals' ruling, it is daylight clear that the appellate court assumed that since the name of private respondent and the phrase "dumpty in the egg" appeared in the same paragraph, the epithet referred only to the former. We cannot, however, subscribe to such simplistic deduction. A perusal of the paragraph in question easily reveals that the person alluded to by petitioner Afable in her use of "dumpty in the egg" was someone who was campaigning for a certain Atty. Reynaldo Cortes - one of the mayoralty candidates in Baguio City at that time. If, indeed, "dumpty in the egg" referred to private respondent, it follows that he campaigned for his own opponent during the 1988 local elections. Although such gracious attitude on the part of private respondent towards his political opponent would have been commendable, nevertheless, the same is totally contrary to human experience. On this score, we uphold the following argument of petitioners:

Clearly, the private respondent was hallucinating when he claims himself as the person referred to as the "Dumpty in the egg." Otherwise, he would be the one making a mockery out of himself for campaigning against himself and in favor of his political opponent. Had he done that, it is doubtful whether he could have won as City Mayor of Baguio in the 1988 elections, which he actually did.34

Third. In its assailed decision, the Court of Appeals likewise highlighted the fact that petitioners Hamada and Afable were husband and wife and went on to conclude, albeit erroneously, that "(t)here is good reason and reasonable ground to assume that the publication of the libelous article was a manifestation of the spouses' thinking on the merit or demerit of candidates for Baguio City mayor for the 18 January 1988 elections."35 Again, we disagree in this conclusion of the appellate court. The records of this case clearly establish the fact that petitioners Hamada and Afable were siblings and not spouses in that during his testimony on 19 December 1989, petitioner Hamada referred to petitioner Afable as his sister.36 The Court of Appeals' supposition, therefore, that the article subject of this petition reflected the stance of the "husband and wife team" of the petitioners utterly lacks factual support.

Having addressed the factual issues of this case, we shall now proceed to discuss its substantive question of whether the 10 January 1988 article of petitioner Afable was defamatory.

It is a basic precept that in cases involving claims for damages arising out of alleged defamatory articles, it is essential that the alleged victim be identifiable although it is not necessary that he be named.37 It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of descriptions or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if extraneous circumstances point to him such that persons knowing him could and did understand that he was the person referred to.38

In the case of Borjal v. Court of Appeals,39 this Court declared that "[i]t is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication."40 Plainly, private respondent has the bounden duty to present before the court evidence that a third person could easily identify him as the person libeled. In this case, private respondent has utterly failed to dispose of this responsibility.

To be sure, private respondent's lone witness, Dr. Rovillos, was able to offer his own understanding of what the phrase "dumpty in the egg" meant.41 However, during his cross-examination, he failed to

sufficiently explain before the court a quo how he arrived at the conclusion that the term referred to private respondent, thus:

Q Now, you said you read this first sentence that says: "I heard that the Dumpty in the egg is campaigning for Cortes." Then you gave us what you thought was the meaning of "Dumpty in the egg." You did not tell us, however, whether you thought that was Ramon Labo or somebody else. Could you tell us, Doctor, when you heard that, you understood that to be Ramon Labo?

A That is what I understand.

Q You understood that to be Ramon Labo because a dumpty in the egg means a big zero. Why? You consider Labo a big zero that is why you understood him to be referred to when Cecille C. Afable said "dumpty in the egg?"

A That is what I understand.

Q You also said a "dumpty in the egg" is a big lie. You consider Ramon Labo a big lie that you also thought he was referred to as "dumpty in the egg?"

A No, sir.

Q In fact, Ramon Labo, in your assessment, is the exact opposite of a dumpty [in] the egg?

A That I cannot answer.

A So, from your honest perception, some – this this Labo (sic) is a big zero or a big lie that is why you cannot say he is the exact opposite?

A Maybe.42

This Court finds Dr. Rovillos's proposition as to what "dumpty in the egg" meant is insufficient to support any finding of liability on the part of the petitioners as he was unable to offer an iota of justification for his conclusion that it pertained to private respondent.

The Court of Appeals also maintained that petitioners could not invoke "public interest" in their defense. It ruled that "[a]n abuse of the freedom of speech and the press should not be tolerated and encouraged if the article published transcends the limit of decent, fair and impartial news reporting and instead becomes a bludgeon or a scalpel to brow beat or slice into shreds a private citizen, of his rights to his good name."43

We do not agree.

Concededly, private respondent was not yet a public official at the time the 10 January 1988 article was published. Nevertheless, this fact does not remove said article from the mantle of protection guaranteed by the freedom of expression provision of the Constitution. Indeed, as early as 1909, in the case of United States v. Sedano,44 this Court had recognized the public's right to be informed on the mental, moral, and physical fitness of candidates for public office.

Subsequently, in the leading case of New York Times Co. vs. Sullivan,45 the US Supreme Court expounded on this principle, viz:

. . . It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.

. . .

In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. The privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.46

Plainly, the rule only applies to fair comment on matters of public interest, fair comment being that which is true, or which if false, expresses the real opinion of the author based upon reasonable degree of care and on reasonable grounds.47 The principle, therefore, does not grant an absolute license to authors or writers to destroy the persons of candidates for public office by exposing the latter to public contempt or ridicule by providing the general public with publications tainted with express or actual malice. In the latter case, the remedy of the person allegedly libeled is to show proof that an article was written with the author's knowledge that it was false or with reckless disregard of whether it was false or not. While the law itself creates the presumption that every defamatory imputation is malicious,48 nevertheless, the privileged character of a communication destroys said presumption. The burden of proving actual malice shall then rest on the plaintiff, private respondent herein.49

In the present case, private respondent was unable to prove that petitioner Afable's column was tainted with actual malice. Verily, the records are replete with evidence that, indeed, private respondent incurred an obligation which had remained unpaid until the time the questioned article was published. While counsel for private respondent persistently harped at the difference between the P27,000 which appeared in petitioner Afable's column and the P27,415 actual indebtedness of private respondent to Baguio Printing and Publishing Co., Inc., the minuscule difference in the amount fails to establish reckless disregard for truth on the part of petitioners. As held by this Court in the Borjal case –

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.50

Lastly, we hold that petitioner Afable's article constitutes a fair comment on a matter of public interest as it dealt with the character of private respondent who was running for the top elective post in Baguio City at the time. Considering that private respondent assured his would-be constituents that he would be donating millions of his own money, petitioner Afable's column with respect to private respondent's indebtedness provided the public with information as regards his financial status which, in all probability, was still unbeknownst to them at that time. Indeed, the information might have dissuaded some members of the electorate from voting in favor of private respondent but such is the

inevitable result of the application of the law. The effect would have been adverse to the private respondent but public interest in this case far outweighs the interest of private respondent.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated 07 January 1992, and its Resolution, dated 29 September 1992, denying reconsideration are REVERSED and SET ASIDE, and the trial court's Decision of 14 June 1990 is AFFIRMED. No costs.

SO ORDERED.

Puno, (Acting C.J.), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 172203               February 14, 2011

DIONISIO LOPEZ y ABERASTURI, Petitioner, vs.PEOPLE OF THE PHILIPPINES and SALVADOR G. ESCALANTE, JR., Respondents.

D E C I S I O N

DEL CASTILLO, J.:

Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. Free expression however, "is not absolute for it may be so regulated that [its exercise shall neither] be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society."1 Libel stands as an exception to the enjoyment of that most guarded constitutional right.

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Dionisio Lopez (petitioner) assailing the Decision2 dated August 31, 2005 of the Court of Appeals (CA) in CA-G.R. CR No. 28175. The CA affirmed with modification the Decision3 rendered by the Regional Trial Court (RTC) of Cadiz City, Branch 60 finding petitioner guilty beyond reasonable doubt of the crime of libel.

Procedural and Factual Antecedents

On April 3, 2003, petitioner was indicted for libel in an Information dated March 31, 2003, the accusatory portion of which reads in full as follows:

That on or about the early part of November 2002 in the City of Cadiz, Philippines and within the jurisdiction of this Honorable Court, the herein accused did then and there, willfully, unlawfully and feloniously with intent to impeach the integrity, reputation and putting to public ridicule and dishonor the offended party MAYOR SALVADOR G. ESCALANTE, JR., City Mayor of Cadiz City and with malice and intent to injure and expose the said offended party to public hatred, contempt and ridicule put up billboards/signboards at the fence of Cadiz Hotel, Villena Street, Cadiz City and at Gustilo Boulevard, Cadiz City, which billboards/signboards read as follows:

"CADIZ FOREVER"

"______________ NEVER"

thereby deliberately titillating the curiosity of and drawing extraordinary attention from the residents of Cadiz City and passers-by over what would be placed before the word "NEVER". Later on November 15, 2002, accused affixed the nickname of the herein private complainant "BADING" and the name of the City of "SAGAY" before the word "NEVER" thus making the billboard appear as follows

"CADIZ FOREVER"

"BADING AND SAGAY NEVER"

For which the words in the signboards/billboards were obviously calculated to induce the readers/passers-by to suppose and understand that something fishy was going on, therefore maliciously impeaching the honesty, virtue and reputation of Mayor Salvador G. Escalante, Jr., and hence were highly libelous, offensive and defamatory to the good name, character and reputation of the offended party and his office and that the said billboards/signboards were read by thousands if not hundred[s] of thousands of persons, which caused damage and prejudice to the offended party by way of moral damages in the amount [of]:

P5,000,000.00 – as moral damages.

ACT CONTRARY TO LAW.4

Upon arraignment on May 8, 2003, petitioner, as accused, entered a plea of "not guilty." During the pre-trial, the parties stipulated, among others, on the identity of the accused, that the private complainant is the incumbent City Mayor of Cadiz City and is popularly known by the nickname "Bading" and that the petitioner calls the private complainant "Bading." Thenceforth, trial on the merits commenced in due course.

Evidence introduced for the prosecution reveals that in the early part of November 2002, while exercising his official duties as Mayor of Cadiz City, private respondent saw billboards with the printed phrase "CADIZ FOREVER" with a blank space before the word "NEVER" directly under said phrase. Those billboards were posted on the corner of Gustilo and Villena streets, in front of Cadiz Hotel and beside the old Coca-Cola warehouse in Cadiz City. He became intrigued and wondered on what the message conveyed since it was incomplete.

Some days later, on November 15, 2002, private respondent received a phone call relating that the blank space preceding the word "NEVER" was filled up with the added words "BADING AND SAGAY." The next day, he saw the billboards with the phrase "CADIZ FOREVER BADING AND SAGAY NEVER" printed in full. Reacting and feeling that he was being maligned and dishonored with the printed phrase and of being a "tuta" of Sagay, private respondent, after consultation with the City Legal Officer, caused the filing of a complaint for libel against petitioner. He claimed that the incident resulted in mental anguish and sleepless nights for him and his family. He thus prayed for damages.

Jude Martin Jaropillo (Jude) is a licensing officer of the Permit and License Division of Cadiz City. While on a licensing campaign, he was able to read the message on the billboards. He wondered what fault the person alluded therein has done as the message is so negative. He felt that the

message is an insult to the mayor since it creates a negative impression, as if he was being rejected by the people of Cadiz City. He claimed that he was giving his testimony voluntarily and he was not being rewarded, coerced or forced by anybody.

Nenita Bermeo (Nenita), a retired government employee of Cadiz City, was at Delilah’s Coffee [Shop] in the morning of November 19, 2002 when she heard the petitioner shouting "Bading, Bading, Never, Never." She and the tricycle drivers drinking coffee were told by petitioner "You watch out I will add larger billboards." When she went around Cadiz City, she saw larger billboards with the phrase "CADIZ FOREVER BADING AND SAGAY NEVER," thus confirming what petitioner had said. With the message, she felt as if the people were trying to disown the private respondent. According to her, petitioner has an ax to grind against the mayor. Like Jude, she was not also forced or rewarded in giving her testimony.

Bernardita Villaceran (Bernardita) also found the message unpleasant because Mayor Escalante is an honorable and dignified resident of Cadiz City. According to her, the message is an insult not only to the person of the mayor but also to the people of Cadiz City.

Petitioner admitted having placed all the billboards because he is aware of all the things happening around Cadiz City. He mentioned "BADING" because he was not in conformity with the many things the mayor had done in Cadiz City. He insisted that he has no intention whatsoever of referring to "Bading" as the "Tuta" of Sagay. He contended that it was private respondent who referred to Bading as "Tuta" of Sagay. He further maintained that his personal belief and expression was that he will never love Bading and Sagay. He concluded that the message in the billboards is just a wake-up call for Cadiz City.

Ruling of the Regional Trial Court

On December 17, 2003, the RTC rendered judgment convicting petitioner

of libel. The trial court ruled that from the totality of the evidence presented by the prosecution vìs-a-vìs that of the defense, all the elements of libel are present. The fallo of the Decision reads:

WHEREFORE, in view of all the foregoing, this Court finds accused DIONISIO LOPEZ y ABERASTURI (bonded) GUILTY beyond reasonable doubt of the crime of Libel defined and penalized under Article 353 in relation to Article 355 of the Revised Penal Code and there being no mitigating or aggravating circumstances attendant thereto hereby sentences him to suffer an indeterminate penalty of imprisonment of FOUR MONTHS AND TWENTY DAYS of Arresto Mayor maximum as the minimum to TWO YEARS, ELEVEN MONTHS AND TEN DAYS of Prision Correccional Medium as the maximum and a FINE of P5,000.00 with subsidiary imprisonment in case of insolvency.

The accused is further ordered to pay the private complainant the sum of P5,000,000.00 by way of moral damages.

The cash bond posted by the accused is hereby ordered cancelled and returned to the accused, however the penalty of Fine adjudged against the accused is hereby ordered deducted from the cash bond posted by the accused pursuant to Section 22 of Rule 114 of the Rules of Court and the remaining balance ordered returned to the accused. The accused is hereby ordered immediately committed to the BJMP, Cadiz City for the service of his sentence.

Cost against the accused.

SO ORDERED.5

Ruling of the Court of Appeals

Petitioner appealed the Decision of the RTC to the CA which, as stated earlier, rendered judgment on August 31, 2005, affirming with modification the Decision of the RTC. Like the trial court, the appellate court found the presence of all the elements of the crime of libel. It reduced however, the amount of moral damages toP500,000.00. Petitioner then filed his Motion for Reconsideration, which the appellate court denied in its Resolution6 dated April 7, 2006.

Disgruntled, petitioner is now before us via the instant petition. Per our directive, private respondent filed his Comment7 on August 29, 2006 while the Office of the Solicitor General (OSG) representing public respondent People of the Philippines, submitted a Manifestation and Motion in Lieu of Comment8 on even date. After the filing of petitioner’s Reply to private respondent’s Comment, we further requested the parties to submit their respective memoranda. The OSG filed a Manifestation in Lieu of Memorandum, adopting as its memorandum, the Manifestation and Motion in Lieu of Comment it earlier filed. Petitioner and private respondent submitted their respective memoranda as required.

Issues

Petitioner raised the following arguments in support of his petition:

I

WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE WORDS "CADIZ FOREVER[,] BADING AND SAGAY NEVER" CONTAINED IN THE BILLBOARDS/SIGNBOARDS SHOW THE INJURIOUS NATURE OF THE IMPUTATIONS MADE AGAINST THE PRIVATE RESPONDENT AND TENDS TO INDUCE SUSPICION ON HIS CHARACTER, INTEGRITY AND REPUTATION AS MAYOR OF CADIZ CITY.

II

ASSUMING WITHOUT CONCEDING THAT THE WORDS "CADIZ FOREVER, BADING AND SAGAY NEVER" CONTAINED IN THE BILLBOARDS ERECTED BY PETITIONER ARE DEFAMATORY, DID THE COURT OF APPEALS ERR IN NOT HOLDING THAT THEY COMPRISE FAIR COMMENTARY ON MATTERS OF PUBLIC INTEREST WHICH ARE THEREFORE PRIVILEGED?

III

WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE PRESUMPTION OF MALICE IN THE CASE AT BAR HAS NOT BEEN OVERTHROWN.

IV

WHETHER X X X THE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER OF THE CHARGE OF LIBEL AND IN HOLDING HIM LIABLE FOR MORAL DAMAGES IN THE AMOUNT OFP500,000.9

Summed up, the focal issues tendered in the present petition boil down to the following: 1) whether the printed phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" is libelous; and 2) whether the controversial words used constituted privileged communication.

Our Ruling

We ought to reverse the CA ruling.

At the outset, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. The factual findings of the lower courts are final and conclusive and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions:

1. When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

2. When the inference made is manifestly mistaken, absurd or impossible;

3. Where there is a grave abuse of discretion;

4. When the judgment is based on a misapprehension of facts;

5. When the findings of fact are conflicting;

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

7. When the findings are contrary to those of the trial court;

8. When the findings of fact are conclusions without citation of specific evidence on which they are based;

9. When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by the respondents; and,

10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.10

Indeed, the CA affirmed the factual findings of the RTC that all the elements of the crime of libel are present in this case. Thus, following the general rule, we are precluded from making further evaluation of the factual antecedents of the case. However, we cannot lose sight of the fact that both lower courts have greatly misapprehended the facts in arriving at their unanimous conclusion. Hence, we are constrained to apply one of the exceptions specifically paragraph 4 above, instead of the general rule.

Petitioner takes exception to the CA’s ruling that the controversial phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" tends to induce suspicion on private respondent’s character, integrity and reputation as mayor of Cadiz City. He avers that there is nothing in said printed matter tending to defame and induce suspicion on the character, integrity and reputation of private respondent.

The OSG, in its Manifestation and Motion in Lieu of Comment, asserts that "there is nothing in the phrase "CADIZ FOREVER" and "BADING AND SAGAY NEVER" which ascribe to private respondent any crime, vice or defect, or any act, omission, condition, status or circumstance which will either dishonor, discredit, or put him into contempt."11

The prosecution maintains that the appellate court correctly sustained the trial court’s finding of guilt on petitioner. Citing well-established jurisprudence12 holding that "[w]ords calculated to induce suspicion are sometimes more effective

to destroy reputation than false charges directly made" and that "[i]ronical and metaphorical language is a favored vehicle for slander," it argued that the words printed on the billboards somehow bordered on the incomprehensible and the ludicrous yet they were so deliberately crafted solely to induce suspicion and cast aspersion against private respondent’s honor and reputation.

A libel is defined as "a 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 juridicial person or to blacken the memory of one who is dead."13 "For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it must be malicious; c) it must be given publicity and d) the victim must be identifiable."14 Absent one of these elements precludes the commission of the crime of libel.

Although all the elements must concur, the defamatory nature of the subject printed phrase must be proved first because this is so vital in a prosecution for libel. Were the words imputed not defamatory in character, a libel charge will not prosper. Malice is necessarily rendered immaterial.

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt or which tends to blacken the memory of one who is dead. To determine "whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense."15 Moreover, "[a] charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses or are sufficient to impeach the honesty, virtue or reputation or to hold the person or persons up to public ridicule."16

Tested under these established standards, we cannot subscribe to the appellate court’s finding that the phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" tends to induce suspicion on private respondent’s character, integrity and reputation as mayor of Cadiz City. There are no derogatory imputations of a crime, vice or defect or any act, omission, condition, status or circumstance tending, directly or indirectly, to cause his dishonor. Neither does the phrase in its entirety, employ any unpleasant language or somewhat harsh and uncalled for that would reflect on private respondent’s integrity. Obviously, the controversial word "NEVER" used by petitioner was plain and simple. In its ordinary sense, the word did not cast aspersion upon private respondent’s integrity and reputation much less convey the idea that he was guilty of any offense. Simply worded as it was with nary a notion of corruption and dishonesty in government service, it is our considered view to appropriately consider it as mere epithet or personal reaction on private respondent’s performance of official duty and not purposely designed to malign and besmirch his reputation and dignity more so to deprive him of public confidence.

Indeed, the prosecution witnesses were able to read the message printed in the billboards and gave a negative impression on what it says. They imply that the message conveys something as if the

private respondent was being rejected as city mayor of Cadiz. But the trustworthiness of these witnesses is doubtful considering the moral ascendancy exercised over them by the private respondent such that it is quite easy for them to draw such negative impression. As observed by the OSG, at the time the billboards were erected and during the incumbency of private respondent as mayor of Cadiz City, these witnesses were either employed in the Cadiz City Hall or active in the project of the city government. Bernardita was a member of the Clean and Green Program of Cadiz City; Jude was employed as a licensing officer under the Permit and License Division of the Cadiz City Hall and Nenita held the position of Utility Worker II of the General Services Office of Cadiz City. These witnesses, according to the OSG, would naturally testify in his favor. They could have verbicide the meaning of the word "NEVER." Prudently, at the least, the prosecution could have presented witnesses within the community with more independent disposition than these witnesses who are beholden to private respondent.

According to the private respondent, the message in the billboards would like to convey to the people of Cadiz that he is a tuta of Sagay City.

We disagree. Strangely, the OSG adopted a position contrary to the interest of the People. In its Manifestation and Motion in Lieu of Comment, instead of contesting the arguments of the petitioner, the OSG surprisingly joined stance with him, vehemently praying for his acquittal. We quote with approval the OSG’s analysis of the issue which was the basis for its observation, thus:

During the proceedings in the trial court, private respondent testified that the subject billboards maligned his character and portrayed him as a puppet of Sagay City, Thus:

Q: You do not know of course the intention of putting those billboards "BADING AND SAGAY NEVER"?

A: Definitely, I know the intention because to answer your question, it will not only require those "BADING AND SAGAY NEVER" billboard[s], it was after which additional billboards were put up. That strengthen, that I am being a "Tuta of Sagay. I am being maligned because of those billboards that states and I repeat: "Ang Tubig san Cadiz, ginkuha sang Sagay", "Welcome to Brgy. Cadiz" and there is a small word under it, Zone 2, very small, very very small, you cannot see it in [sic] a glance.

x x x x

A: That is the meaning of the signboard[s]. The message that the signboards would like to convey to the people of Cadiz, that the Mayor of Cadiz City is a "Tuta" or Puppet of Sagay City.

x x x x17

Contrary to private respondent’s assertion, there is nothing in the subject billboards which state, either directly or indirectly, that he is, in his words, a "tuta" or "puppet" of Sagay City. Except for private respondent, not a single prosecution witness testified that the billboards portray Mayor Bading Escalante, Jr. as a "tuta or "puppet" of Sagay City. The billboards erected by petitioner simply say "CADIZ FOREVER", "BADING AND SAGAY NEVER"18

Apparently, private respondent refers to the circumstances mentioned in another billboard that is not the subject matter in the present charge. The aforesaid facts dismally failed to support the allegations in the instant information. Be that as it may, private respondent nevertheless did not specify any actionable wrong or particular act or omission on petitioner’s part that could have defamed him or caused his alleged injury. While it may be that the Court is not bound by the analysis

and observation of the OSG, still, the Court finds that it deserves meritorious consideration. The prosecution never indulged to give any reason persuasive enough for the court not to adopt it.

Truth be told that somehow the private respondent was not pleased with the controversial printed matter. But that is grossly insufficient to make it actionable by itself. "[P]ersonal hurt or embarrassment or offense, even if real, is not automatically equivalent to defamation,"19 "words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute bases for an action for defamation in the absence of an allegation for special damages. The fact that the language is offensive to the plaintiff does not make it actionable by itself," as the Court ruled in MVRS Publications, Inc. v. Islamic Da’ Wah Council of the Phils., Inc.20

1avvphil

In arriving at an analogous finding of guilt on petitioner, both lower courts heavily relied on the testimony of the petitioner pertaining to the reasons behind the printing of the phrase "CADIZ FOREVER BADING AND SAGAY NEVER."21 Our in-depth scrutiny of his testimony, however, reveals that the reasons elicited by the prosecution mainly relate to the discharge of private respondent’s official duties as City Mayor of Cadiz City. For that matter, granting that the controversial phrase is considered defamatory, still, no liability attaches on petitioner. Pursuant to Article 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegations is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends. As the Court held in United States v. Bustos,22 the policy of a public official may be attacked, rightly or wrongly with every argument which ability can find or ingenuity invent. The public officer "may suffer under a hostile and an unjust accusation; the wound can be assuaged by the balm of a clear conscience. A public [official] must not be too thin-skinned with reference to comments upon his official acts."

"In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral certainty as this is the critical and only requisite to a finding of guilt."23 In this case, contrary to the conclusion of the trial court as affirmed by the appellate court, the prosecution failed to prove that the controversial phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" imputes derogatory remarks on private respondent’s character, reputation and integrity. In this light, any discussion on the issue of malice is rendered moot.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated August 31, 2005 in CA-G.R. CR No. 28175 is REVERSED and SET ASIDE and the petitioner is ACQUITTED of the crime charged.

SO ORDERED

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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.

R E S O L U T I O N

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 asA.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."9The 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 andEstrada, 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. 1avvphi1

(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.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 90878 January 29, 1990

PABLITO V. SANIDAD, petitioner, vs.THE COMMISSION ON ELECTIONS, respondent.

 

MEDIALDEA, J.:

This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press.

On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989.

The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region.

In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides:

Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution.

Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent punishment for those who may violate it because it contains a penal provision, as follows:

Article XIII, Section 122, Election Offenses and Banned Acts or Activities. — Except to the extent that the same may not be applicable plebiscite. the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this Resolution.

Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue.

On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition.

On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment.

Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines.

It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and/or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881:

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

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

Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167.

Article IX-C of the 1987 Constitution provides:

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.

Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:

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

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

However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is acandidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.

Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason.

Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned

because they are limited to either specific portions in newspapers or to specific radio or television times.

ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The restraining order herein issued is hereby made permanent.

SO ORDERED.

EN BANC 

[AM No. 90-4-1545-0 : April 17, 1990] 

COLUMN OF MR. RAMON TULFO IN THE PHILIPPINE DAILY INQUIRER ISSUES OF 13 AND 16 OCTOBER 1989 

Gentlemen:Quoted hereunder, for your information, is a resolution of the Court En Banc dated April 17, 1990 

AM No. 90-4-1545-0 (Column of Mr. Ramon Tulfo in the Philippine Daily Inquirer issues of 13 and 16 October 1989) 

On 13 October 1989, respondent Ramon Tulfo (Tulfo, for short) wrote an article entitled "Idiotic Decision" in his column "On Target" in the Philippine Daily Inquirer, stating therein that the Supreme Court rendered an "idiotic decision" in legalizing the checkpoints. This was followed by another article in the same column on 16 October 1989, entitled "Sangkatutak na Bobo," Tulfo referring therein to the members of the Supreme Court as "stupid" for having rendered such decision on checkpoints, and calling them "sangkatutak na bobo justices of the Philippine Supreme Court."

In a resolution dated 19 October 1989, the Court required Tulfo to show cause in writing why he should not be punished for contempt of court, for making such derogatory statements in his column against the Supreme Court and its members.

Without denying the writing and publication of the questioned articles, Tulfo raised the following defenses in his "Explanation:" (1) that he was just reacting emotionally to said decision of the Court because he had been a victim of harassment, abuse and oppression by checkpoints; (2) that the use of the adjective "idiotic" was meant and intended in the sense of the decision being "illogical, irrational, unwarranted and unwise;" (3) that the words "stupid justices" and "sangkatutak na bobo" in the 16 October 1989 article are not his own words but that he was merely quoting the words of some lawyers in reaction to the decision, without any intention on his part to degrade, ridicule, insult and bring disrepute to the Court; (4) that the case having been decided and terminated, the comments made in said articles as to the soundness of the Court's decision do not constitute contempt of court; (5) that said articles did not pose any clear and present danger or serious and imminent threat to the administration of justice.

Citing press freedom, a Motion for Intervention was filed by the National Press Club, Union of Journalists of the Philippines, Press Photographers of the Philippines, and the People's Movement for Press Freedom, in connection with the resolution of the Court requiring Tulfo to explain why he should not be held in contempt of court. Movants alleged that such resolution is an unwarranted assault and undue restriction on freedom of speech and press. Said motion was considered by the Court in its deliberations leading to this resolution.

We find Tulfo's "explanation" to be fatally devoid of merit.

At the outset, it should be stated that, contrary to Tulfo's pretense, the Court's decision on the issue of checkpoints had not become final at the time he wrote the questioned articles. In fact, the Court has yet to act on the motion for reconsideration of said decision, filed by the petitioner therein, to which the Solicitor General, appearing for the respondents, has filed an opposition. Consequently, at the time Tulfo wrote and published the questioned articles, the case had not been closed and terminated but was  sub judice. 

The power to punish for contempt is inherent in all courts, as it is essential to their right of self-preservation.[1] Courts are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence and submission to their lawful mandates, and as corollary to this proposition, to preserve themselves and their officers from the approach of insults and pollution.[2] Any improper conduct which tends, directly or indirectly, to impede, obstruct, or degrade the administration of justice is punishable for indirect contempt.[3]

Contempt of court is a defiance of the authority, justice or dignity of the court; it is such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties or their witnesses during litigation. Contempt of court is defined as disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience of the court's orders but is such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.[4] It may be committed both by lawyers and non-lawyers, in and out of court.[5]

There are two (2) types of publication of newspaper comments on proceedings in court, which have been considered in contempt proceedings, namely: (1) those in which the object of the publication is to affect the decision in a pending case or action, and (2) those which have for their purpose the bringing of courts or judges or other court officers into discredit.[6] Tulfo's articles comprise both types of publication. As already pointed out, at the time his articles were written and published, the case on the checkpoints was sub judice as the Court's decision therein had not became final. As to why and how said articles have for their purpose to bring the Supreme Court and its members into discredit, will be shown presently.

It has been settled that mere criticism or comment on the correctness; or wrongness, soundness or unsoundness of a decision of the court in a pending case, made in good faith, may be tolerated, for if it is well founded, it may enlighten the court and contribute to the correction of an error, if any has been committed.[7]

The Court, needless to state, as a human institution, does not assume a posture of infallibility or perfection in its decisions or rulings. In fact, its decisions are open to criticisms for as long as they are couched in respectful language and, above all directed at the merits of the case. Where, however, comment in the guise of a critique is intended merely to degrade and ridicule the Court, as well as toinsult its members, thereby causing or conditioning the public to lose its respect for the Court and its members, the comment becomes clearly an obstruction or affront to the administration of justice; hence, it is contemptous. To cast doubt before the public eye as to the integrity of the judicial institution by malicious imputations of disrepute and incompetence to the Supreme Court and its members, does not fall under the category of fair criticism. The right to criticize is not absolute or unlimited. Above all, it must be bona fide and should not spill over the walls of decency and propriety. Any intemperate and unfair criticism is a gross violation of one's duty of respect to the courts.[8]

Coming to Tulfo's specific language employed in the questioned articles, a man in his right senses would find no social; value, or intellectual significance or even literary delight in its use. In fact, nothing constructive can be attained by an attempt to downgrade, damage and even destroy the authority of the Court which is a focal institution of democracy in this country. Most prudent observers believe (whether or not Tulfo subscribes to it) that any act which tends to destroy the authority of the Court is in itself an attempt to destroy that democracy -

x x x x x x x x x 

"What is at stake in cases of this kind is the integrity of the judicial institutions of the country in general and of the Supreme Court in particular. Damage to such institutions might not be quantifiable at a given moment in time but damage there will surely be if acts like those of respondent Gonzales are not effectively stopped and countered. The level of trust and confidence of the general public in the courts, including the court of last resort, is not easily measured; but few will dispute that a high level of such trust and confidence is critical for the stability of democratic goverment.[9]

x x x x x x x x x

It is thus imperative that the Court should preserve its authority, dignity and the respect due it from litigants, lawyers and the public, for the reason that - 

"The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this court and believe that they can not expect justice there-from, they might be driven to take the law into their own hands, and disorder and perhaps chaos would result."[10]

If this Court were to allow insults hurled against it and its members to go unpunished, then it becomesremiss in its own duty to maintain its authority, integrity, and dignity. 

Tulfo's claim that he was "emotional" when he wrote the questioned articles can in no way serve as an excuse for insulting and demeaning the highest court of the land and its members. In fact, it has been held that not even good faith is a ground for exoneration in a contempt charge.[11]

Being of age and presumably gifted with reason, Tulfo must have been fully aware of the seriousness of his undertaking to insult the Court and its members. For such conduct, he must assume responsibility for its consequences, without hiding behind the cloak of "emotionalism" or the convenient anonymity of his alleged "reaction" sources. A writer worth his guts should know that a pre-condition to credibility is honesty, not cowardice.

The Court does not deny Tulfo's right to be emotional about certain issues; however, as a responsible member of the press, he should first rationalize and tackle issues with objectivity. The fact that the issue of checkpoints had become a "highly emotional issue" for him is not a logical reason to insult the Court and its members, for, if Tulfo strongly felt that the Court had erred in its decision, he was free to criticize the decision on its merits. But to maliciously demean the Court and the intelligence of its members achieved really nothing in pointing out the errors, if any, in the decision objected to.

Reading through the two (2) articles written by Tulfo, respectively entitled "Idiotic decision" and "Sangkatutak na Bobo", it is plain that Tulfo intended to ridicule and degrade the Court and its members before the public, not merely to criticize its decision on the merits, as he would now like to make this Court believe. The general tone and language used in Tulfo's articles belie his belated allegation that the word "idiotic" was used in the sense of the decision being merely "illogical, irrational, unwarranted and unwise."

Reprehensible language may take various forms and in all cases its general tone should be considered. Whether or not the meaning and intent of a certain article constitute contempt is to be determined by the Court as a matter of law upon a fair consideration of the language used. Disclaimer by the author of intentional disrespect to the Court, just like disclaimer by a publisher of any knowledge of the article prior to its publication is not a defense.[12]

As Tulfo well knows, in ordinary parlance, "idiotic" is defined as "devoid of intellect, utterly stupid, sense-less or foolish";[13] while legally, it is defined as "a person who has been without understanding from his nativity, and whom the law, therefore, presumes never likely to attain an"[14]  or "the lowest level of feeblemindedness in which an individual is possessed of a maximum mental age of two years or an IQ of 25"[15] while the word "stupid" is defined as "wanting in or slow of mental perception; lacking ordinary activity of mind; slow-witted; dull."[16]

Had Tulfo honestly meant to express only to the public his personal opinion that the questioned decision is "illogical, irrational, unwarranted and unwise," then, he could have said so without resort to the use of words which are derogatory, and thereafter claim that he did not mean the way they were written or understood by his readers. Such turnabout only shows how grossly irresponsible, or in bad faith or mentally dishonest Tulfo was in writing said articles and causing the same to be published.

In fine, the intent clearly manifested by Tulfo in the questioned articles is to give an image of a Supreme Court composed of members who are ignorant or devoid of intelligence, thus, incapable of carrying out the proper dispensation of justice which they are tasked to perform under the Constitution. And, while it has been said that those who have great proficiency at hurling insults at others usually fit such insults so well, the Court will not pass this judgment on Tulfo but will simply hold him as having insulted, without any rational justification, the institution of the Supreme Court and its members.

Likewise, there is no merit in Tulfo's defense that he was merely quoting the reactions of some lawyers to the decision when he referred to the Supreme Court justices as "sangkatutak na bobo". While it is true that in his opening statement in the 16 October 1989 article, Tulfo stated that many lawyers he had talked to

describe the present complement of justices as "sangkatutak na bobo", yet, his parting shot and personal statement at the end of the article, which says "(T)o the sangkatutak na bobo justices of the Philip-pine Supreme Court, please take note!", runs counter to his very claim that such assessment of the Court and its members was not his personal opinion. Thus, he is not only an inventive expert; he is totally in bad faith. At the very least, he cannot be exculpated from full and sole responsibility for the publication of such derogatory statement.

Moreover, in a later (6 November 1989) article, Tulfo declared that he was not sorry at all that he wrote the way he did in his two (2) questioned articles, and he claimed that he was "merely expressing his honest opinion." He stood firm with his original indictment of the Court and its members as "sangkatutak na bobo" and "stupid justices", and never truly apologized for making such statements. It is thus clear that all that he claimed to be sorry for was that he cannot take back what he had said in his earlier articles, and that he was sorry for those who have been allegedly affected by the ruling on checkpoints, like the motorists, consumers and end-users.

Freedom of speech and expression, like all constitutional freedoms, is not absolute, and freedom of expression has, on appropriate occasions, to be adjusted and accommodated to the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the authority, integrity and orderly functioning of the courts. For, the protection and maintenance of freedom of expression itself can be secured only within the framework of a functioning and orderly system of justice.[17] Freedom of expression is not license to insult the Court and its members and to impair the authority, integrity and dignity of the Court.

The inherent power of courts to punish any publication calculated to interfere with the administration of justice is not restricted by the constitutional guarantee of freedom of the press, for freedom of the press is subordinate to the authority, integrity and independence of the judiciary and the proper administration of justice. Freedom of the press must not be confounded with license or abuse of that freedom. Writers and publishers of newspapers have the right, but no greater than the right of others, to bring to public notice the conduct and acts of courts, provided the publications are true and fair in spirit; in short, there is no law to restrain or punish the freest expression of disapprobation of what is done in or by the courts,[18] provided that free expression is not used as a vehicle to satisfy one's irrational obsession to demean, ridicule, degrade and even destroy the courts and their members. Consequently, Tulfo's as well as intervenors' claim to press freedom, is not well taken in this instance.

ACCORDINGLY, the Court finds and adjudges respondent Ramon Tulfo in CONTEMPT OF COURT, and he is hereby GRAVELY CENSURED, with the STRONGEST WARNING that a repetition of the same or similar misconduct will be dealt with MORE SEVERELY.

IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT)Posted on June 20, 2013 by winnieclaire

StandardFacts: Jurado, a journalist who writes in a newspaper of general circulation, the “Manila Standard.” He describes himself as a columnist, who “incidentally happens to be a lawyer,”, had been writing about alleged improperties and irregularities in the judiciary over several months (from about October, 1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and corruption in the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society. Events Directly Giving Rise to the Proceeding at Bar.

The seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in the so-called “controversial case” of “Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI),” G.R. No, 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the majority.

In connection with this case, G.R. No. 94374, the “Philippine Daily Inquirer” and one or two other newspapers published, on January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman, it appears, had been commissioned by one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a few of his prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by the latter. Yerkes proffered the conclusion that the Gutierrez decision “looks, reads and sounds like the writing of the PLDT’s counsel,” Thus, he speaks of the “Magnificent Seven,” by merely referring to undisclosed regional trial court judges in Makati; the “Magnificent Seven” in the Supreme Court, as some undesignated justices who supposedly vote as one; the “Dirty Dozen,” as unidentified trial judges in Makati and three other cities. He adverts to an anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who reportedly spent a prepaid vacation in Hong Kong with their families.

The Chief Justice issued an administrative order “Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary,” to investigate the said reports of corruption in the judiciary. A letter affidavit was also received from the public utility, denying the allegations in Jurado’s column. The Supreme Court then issued a resolution ordering that the matter dealt with in the letter and affidavit of the public utility company be docketed and acted upon as an official Court proceeding for the determination of whether or not the allegations made by Jurado are true.

HELD: Jurado’s actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that he might cause to the name and reputation of those of whom he wrote. They constitute contempt of court, directly tending as they do to degrade or abase the administration of justice and the judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable, decent and responsible journalists who live by their Code or the “Golden Rule” and who strive at all times to maintain the prestige and nobility of their calling.

Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise, viz.: “ARTICLE 19. Every 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.” The provision is reflective of the universally accepted precept of “abuse of rights,” “one of the most dominant principles which must be deemed always implied in any system of law.”

Requirement to exercise bona fide care in ascertaining the truth of the statements when publishing statements which are clearly defamatory to identifiable judges or other public officials.Judges, by becoming such, are rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons. Nevertheless, persons who seek or accept appointment to the Judiciary cannot reasonably be regarded as having forfeited any right to private honor and reputation. For to so rule will be to discourage all save those who feel no need to maintain their self-respect from becoming judges. The public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth

of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof.

Burgos Sr. vs Chief of Staff AFP Case DigestBurgos, Sr. vs Chief of Staff, AFP 

133 SCRA 800

G.R. No. 64261

December 26, 1984

Facts: Petitioners assail the validity of 2 search warrants issued on December 7, 1982 by respondent Judge Cruz-Pano of the then Court of First Instance of Rizal, under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Respondents contend that petitioners should have filed a motion to quash said warrants in the court that issued them before impugning the validity of the same before this Court. Respondents also assail the petition on ground of laches (Failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it). Respondents further state that since petitioner had already used as evidence some of the documents seized in a prior criminal case, he is stopped from challenging the validity of the search warrants. 

Petitioners submit the following reasons to nullify the questioned warrants: 

1. Respondent Judge failed to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as well as Sec. 4, Rule 126 of the Rules of Court. 2. The search warrants pinpointed only one address which would be the former abovementioned address. 3. Articles belonging to his co-petitioners were also seized although the warrants were only directed against Jose Burgos, Jr. 4. Real properties were seized. 5. The application along with a joint affidavit, upon which the warrants were issued, from the Metrocom Intelligence and Security Group could not have provided sufficient basis for the finding of a probable cause upon which a warrant may be validly issued in accordance with Section 3, Article IV of the 1973 Constitution. 

Respondents justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes sequestration of the property of any person engaged in subversive activities against the government in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense. 

Issue: Whether or Not the 2 search warrants were validly issued and executed. 

Held: In regard to the quashal of warrants that petitioners should have initially filed to the lower court, this Court takes cognizance of this petition in view of the seriousness and urgency of the constitutional Issue raised, not to mention the public interest generated by the search of the "We Forum" offices which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. With the contention pertaining to laches, the petitioners gave an explanation evidencing that they have exhausted other extra-judicial efforts to remedy the situation, negating the presumption that they have abandoned their right to the possession of the seized property. 

On the enumerated reasons: 

1. This objection may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. 3. Section 2, Rule 126, of the Rules of Court, does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. 4. Petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground, remain movable property susceptible to seizure under a search warrant. 5. The broad statements in the application and joint affidavit are mere conclusions of law and does not satisfy the requirements of probable cause. Deficient of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. In Alvarez v. Court of First Instance, this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The description of the articles sought to be seized under the search warrants in question are too general. With regard to the respondents invoking PD 885, there is an absence of any implementing rules and regulations promulgated by the Minister of National Defense. Furthermore, President Marcos himself

denies the request of military authorities to sequester the property seized from petitioners. The closure of the premises subjected to search and seizure is contrary to the freedom of the press as guaranteed in our fundamental law. The search warrants are declared null and void.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC.,petitioners, vs.THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

 

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states:

Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It

is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-69899 July 15, 1985

ROMMEL CORRO, petitioner, vs.HON. ESTEBAN LISING Presiding Judge, Regional Trial Court, Quezon City, Branch XCV HON. REMIGIO ZARI Regional Trial Court, Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT. COL. BERLIN A. CASTILLO and 1ST LT. GODOFREDO M. IGNACIO, respondents,

Reynaldo L. Bagatsing for petitioner.

RELOVA, J.:

On September 29, 1983, respondent Regional Trial Court judge Esteban Lising of Quezon City, upon application filed by Lt. Col. Berlin Castillo of the Philippine Constabulary Criminal Investigation Service, issued Search Warrant No. Q-00002 authorizing the search and seizure of—

1. Printed copies of Philippine Times;

2. Manuscripts/drafts of articles for publication in the Philippine Times;

3. Newspaper dummies of the Philippine Times;

4. Subversive documents, articles, printed matters, handbills, leaflets, banners;

5. Typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes

which have been used and are being used as instrument and means of committing the crime of inciting to sedition defined and penalized under Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24, Rollo)

On November 6, 1984, petitioner filed an urgent motion to recall warrant and to return documents/personal properties alleging among others that:

2. ... the properties seized are typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which are not in any way, inanimate or mute things as they are, connected with the offense of inciting to sedition.

3. More so, documents or papers seized purporting to do the body of the crime has been rendered moot and academic due to the findings of the Agrava Board that a military conspiracy was responsible for the slaying of the late Senator Benigno Aquino, Jr. on August 21, 1983 at the Manila International Airport. The Agrava Board which has the exclusive jurisdiction to determine the facts and circumstances behind the killing had virtually affirmed by evidence testamentary and documentary the fact that soldiers killed Benigno Aquino, Jr.

4. More so, the grave offense of libel, RTC, Q.C. Branch XCV has dismissed said case against the accused on all documents pertinent and more so as we repeat, rendered moot and academic by the recent Agrava Report. (p. 27, Rollo)

On January 28, 1985, respondent Judge Lising denied the motion in a resolution, pertinent portions of which state:

... The said articles presently form part of the evidence of the prosecution and they are not under the control of the prosecuting arm of the government. Under these circumstances, the proper forum from which the petition to withdraw the articles should be addressed, is the Office of the City Fiscal, Quezon City and not with this

Branch of the Court. It is to be further noted that it is not even with this Branch of the Court that the offense of inciting to sedition is pending. (p 29, Rollo)

Hence, this petition for certiorari and mandamus, with application for preliminary injunction and restraining order to enjoin respondent Regional Trial Court, National Capital Region, Branch 98 from proceeding with the trial of Criminal Case No. S3-Q-29243, praying (a) that Search Warrant No. Q-00002 issued by respondent Judge Esteban M. Lising be declared null and void ab initio and that a mandatory injunction be issued directing respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio jointly and severally to return immediately the documents/properties illegally seized from herein petitioner and that final injunction be issued enjoining respondents City Fiscal's Office of Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio from utilizing said documents/properties as evidence in Criminal Case No. 29243; and (b) that respondent PC-CIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo Ignacio be directed to reopen the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M., Kalaw, Ermita, Manila.

In Our Resolution of February 19, 1985, respondents were required to file their comment. The plea for temporary restraining order was granted and respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio were enjoined from introducing as evidence for the state the documents/properties seized under Search Warrant No. Q-00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner), pending before the Regional Trial Court of Quezon City, Branch 98, effective immediately and continuing until further orders from the Court.

Respondents would have this Court dismiss the petition on the ground that (1) the present action is premature because petitioner should have filed a motion for reconsideration of respondent Judge Lising's order of January 28, 1985; (2) probable cause exists justifying the issuance of a search warrant; (3) the articles seized were adequately described in the search warrant; (4) a search was conducted in an orderly manner; (5) the padlocking of the searched premises was with the consent of petitioner's wife; (6) the findings of the Agrava Board is irrelevant to the issue of the validity of the search warrant; (7) press freedom is not an issue; and, (8) the petition is barred by laches.

There is merit in the petition.

Respondents contend that petitioner should have filed a motion for reconsideration of the order in question before coming to Us. This is not always so. When the questions raised before the Supreme Court are the same as those which were squarely raised in and passed upon by the lower court, the filing of the motion for reconsideration in said court before certiorari can be instituted in the Supreme Court is no longer a pre-requisite. As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. The rule does not apply where, the deprivation of petitioners' fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and in Gonzales vs. Court of Appeals, 3 SCRA 465, this Court ruled that "it is only when questions are raised for the first time before the high court in a certiorari case that the writ shall not issue, unless the lower court had first been given an opportunity to pass upon the same." Further, in the case ofMatute vs. Court of Appeals, 26 SCRA 768, We held that "while as a matter of policy a motion for reconsideration in the lower court has often been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not apply where the proceeding in which the error occurred is a patent nullity or where 'the deprivation of petitioner's fundamental right to due process ... taints the proceeding against him in the court below not only with irregularity but with nullity (Luzon Surety Co. v. Marbella et al., L-16038, Sept. 30, 1960), or when special circumstances warrant immediate and more direct action. ..." The records of

this petition clearly disclose that the issues herein raised have already been presented to and passed upon by the court a quo.

Section 3, Article IV of the 1973 Constitution provides:

SEC. 3. ...no search warrant or warrant of arrest issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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.

and, Section 3, Rule 126 of the New Rules of Court, states that:

SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace 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.

Probable cause may be defined as "such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his actions, and the means taken in prosecuting it, are legally just and proper (Burton vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28 Phil. 566)." Thus, an application for search warrant must state with particularly the alleged subversive materials published or intended to be published by the publisher and editor of the Philippine Times, Rommel Corro. As We have stated in Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, 133 SCRA 800, "mere generalization will not suffice." A search warrant should particularly describe the place to be searched and the things to be seized. "The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant- to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be committed, — that abuses may not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The affidavit of Col. Castillo states that in several issues of the Philippine Times:

... we found that the said publication in fact foments distrust and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised Penal Code as amended by Presidential Decree No. 1835; (p. 22, Rollo)

and, the affidavit of Lt. Ignacio reads, among others—

... the said periodical published by Rommel Corro, contains articles tending to incite distrust and hatred for the Government of the Philippines or any of its duly constituted authorities. (p. 23, Rollo)

The above statements are mere conclusions of law and will not satisfy the requirements of probable cause. They can not serve as basis for the issuance of search warrant, absent of the existence of probable cause. In fact, as a consequence of the search warrant issued, the items confiscated from the premises of the office of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following:

1. One bundle of assorted negative;

2. One bundle of assorted lay out;

3. Three folders of assorted articles/writings used by Philippine Times news and other paraphernalias;

4. Four tape — alleged speech of Mayor Climaco, two alleged speeches of Aquino and a speech of one various artist;

5. One bundle Dummies;

6. Ten bundles of assorted copies of Philippine Times issued on different dates (Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15):

7. One Typewriter Remington Brand Long Carriage with No. J-2479373;

8. OneTypewriterAdler-short with No. 9003011;

9. Three (3) bundles of Philippine Times latest issue for Baguio City (p. 26, Rollo)

In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants authorizing the seizure of books of accounts and records "showing all the business transactions" of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit comment of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. In the case at bar, the search warrant issued by respondent judge allowed seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies, subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable.

Respondents do not deny the fact that the business office of the "Philippine Times" of which petitioner was the publisher-editor was padlocked and sealed. The consequence is, the printing and publication of said newspaper were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, supra, We held that "[sluch closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry."

Finally, respondents argue that while the search warrant was issued on September 29, 1983 and was executed on the very same day, it was only on November 6, 1984, or one (1) year, one (1) month and six (6) days when petitioner filed his motion for the recall of the warrant and the return of the documents/personal properties. Having failed to act seasonably, respondents claim that petitioner is guilty of laches.

Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier. The negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it (Tijam vs. Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35).

In his petition, Corro alleged that on October 1, 1983, less than forty-two (42) hours after the military operatives shut down his newspaper on September 29, 1983, he was invited by the Director-General PC/INP, and subsequently detained. Thereafter, he was charged with the crime of inciting to sedition before the City Fiscal's Office in Quezon City, and on October 7, 1983, a preventive detention action was served upon him. Consequently, he had to file a petition for habeas corpus. It was only on November 8, 1984 when this Court issued its Resolution in G.R. No. 68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel Corro on recognizance of his lawyers, Attys. Humberto B. Basco, Reynaldo Bagatsing and Edilberto Balce, In the same month, November 1984, petitioner filed his motion to recall warrant and to return the seized documents. When respondent judge denied the motion, he came to Us.

Considering the above circumstances, the claim that petitioner had abandoned his right to the possession of the seized properties is incorrect.

WHEREFORE, Search Warrant No. Q-00002 issued by the respondent judge on September 29, 1983 is declared null and void and, accordingly, SET ASIDE.

The prayer for a writ of mandatory injunction for the return of the seized articles is GRANTED and all properties seized thereunder are hereby ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A. Castillo and lst Lt. Godofredo M. Ignacio are ordered to RE-OPEN the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila.

SO ORDERED.

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

Fernando, C.J., concur in the result.

Aquino, J., took no part.

Babst v. National Intelligence BoardG.R. No. L-6299228September 1984

PONENTE: Plana, J.PARTIES:

1. PETITIONERS: ARLENE BABST, ODETTE ALCANTARA CERES P. DOYO, JO ANN Q. MAGLIPON, DOMINI TORREVILLAS SUAREZ, LORNA KALAW-TIROL, CIELO BUENAVENTURA, SYLVIA MAYUGA, SHEILA S. CORONEL, ET AL.

2. RESPONDENTS: NATIONAL INTELLIGENCE BOARD, SPECIAL COMMITTEE NO. 2, BRIG. GEN. WILFREDO ESTRADA (ret.), COL. RENATO ECARMA, NBI ASST. DIRECTOR PONCIANO FERNANDO, COL. BALBINO DIEGO, COL. GALILEO KINTANAR, COL. EUSTAQUIO PERALTA, ET AL.

NATURE: Petition for Prohibition and Issuance of a Writ of InjunctionPROCEDURAL BACKGROUND:Supreme Court: Original Petition filed with the Supreme CourtFACTS:

Petitioners are columnists, feature article writers and reporters of various local publications. Since July 1980, some of them have allegedly been summoned by military authorities who have subjected them to sustained interrogation on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. The invitations were contained in letters sent by the National Intelligence Bureau (NIB) and were of the following tenor:

Madam:

Pursuant to the authority vested in me by law, you are hereby requested to appear before this Special Committee at Philippine Army Officer’s Clubhouse, Fort Bonifacio, Metro Manila (sketch attached), 9:00 A.M., December 22, 1982, to shed light on confidential matters being looked into by this Committee.

Your failure to appear on the specified date and place shall be considered as a waiver on your part and this Committee will be constrained to proceed in accordance with law.

Very truly yours,

(SGD.) WILFREDO C. ESTRADABrig. General, AFP (Ret.)Chairman

Petitioners argued that the respondents do not have the authority to conduct the proceeding above-described which are violative of the constitutional guarantee on freedom of expression since they have the effect of imposing restrictive guidelines and norms on mass media. Petitioners further claim that such proceedings are a punitive ordeal or subsequent punishment for lawful publications and that they amount to a system of censorship, curtailing the “free flow of information and petition and opinion,” indispensable to the right of the people to know matters of public concern guaranteed the Constitution. Finally they claim that such coercive invitations constitute intrusions into spheres of individual liberty.

Respondents countered by claiming that no issue of jurisdiction exists since they do not pretend to exercise jurisdiction over the petitioners. They claimed that what were sent to petitioners were neither subpoenas nor summonses, but mere invitations to dialogues which were completely voluntary, without any compulsion employed on petitioners. The dialogues themselves were designed simply to elicit information and exchange of ideas. Respondents contended that the that the expression of personal preferences and opinions by members of the respondent Board is not equivalent to the imposition of norms and guidelines to be followed by petitioners. Finally, they argued that the petition filed is moot and academic because the proceedings before NIB Special Committee No. 2 (which conducted the interrogations) have already been ordered terminated by General Fabian C. Ver in his capacity as Director General and Chairman of the NIB, and said proceedings have in fact been terminated.

PERTINENT ISSUES:1. Whether or not the present petition has become moot and academic.

2. Whether or not the issuance of letters of invitations and the subsequent interrogations that are conducted thereafter are valid under the Constitution.

ANSWERS:1. Yes.2. While the Court did not resolve such issue on its merits, it can be reasonably inferred from the

dictum of the Court that under the facts of this case, such interrogations are unconstitutional.SUPREME COURT RULINGS:1.    THE PETITION WAS MOOT AND ACADEMICEffect of the termination of the proceedings – Considering that the proceedings have been terminated and the acts sought to be prohibited have been abated, the petition has become moot and academic.2.    A MERE INVITATION TO ATTEND A HEARING WHICH A PERSON MAY REFUSE IS NOT ILLEGAL, HOWEVER, AN INVITATION WHICH HAS AN APPEARANCE OF COERCION IS CONSTITUTIONALLY OBJECTIBLEInvitation with coercion is constitutionally objectionable – Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril, especially where, as in the instant case, the invitation carries the ominous seaming that “failure to appear . . . shall be considered as a waiver . . . and this Committee will be constrained to proceed in accordance with law.” Fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation.DISPOSITIVE:The Supreme Court dismissed the petition.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-33615 April 22, 1977

MANUEL ELIZALDE, FRED J. ELIZALDE, PRUDENCIO R. EUROPA, petitioners, vs.HON. MARIO J. GUTIERREZ, Presiding Judge, CFI-Ilocos Sur, Branch III, and PEOPLE OF THE PHILIPPINES, represented in this instance by JESUS F. GUERRERO, Provincial Fiscal of Ilocos Sur,respondents.

 

FERNANDO, J:

It was the refusal of respondent Judge Mario J. Gutierrez 1 to grant motion to quash of petitioners, who were the accused in a prosecution for libel, notwithstanding the invocation of their constitutional right to freedom of expression 2 that led to this suit for certiorari and prohibition. All that could be alleged in the information against them was the publication in the Evening News, a newspaper of general circulation, of an item reproducing in full a dispatch from the Philippine News Service, a reputable news-gathering agency. It summarized the testimony of Jaime Jose in a pending rape case wherein the name of Vincent Crisologo, the offended party in the information for libel, was mentioned. This excerpt from the recent case of Bocobo v. Estanislao 3 comes to mind: "This is contrary to the legal tradition of the Philippines dating back to the landmark case of United States v. Bustos, where Justice Malcolm emphasized that to prevent dilution of the constitutional right to free speech and free press, every libel prosecution should be tested by the rigorous and exacting standard of whether or not it could be violative of such fundamental guarantee. 4 It is easily understandable then why in the motion to quash, the main reliance was on the Bustos doctrine, although other grounds were alleged as warranting the dismissal of the information. 5When respondent Judge ignored such a fundamental constitutional principle, the proper basis for a certiorari and prohibition proceeding was laid. Petitioners are entitled to the remedies sought.

The alleged offending news item was a reproduction of a news item coming from the Philippine News Service, furnished the Evening News, of which petitioners Manuel Elizalde and Fred J. Elizalde were the Publisher and Assistant Publisher and Prudencio R. Europa was the Editor-in-Chief. It reads thus: "Jaime Jose implicated Tuesday Vincent Crisologo, son of Rep. Floro Crisologo ( N, Ilocos Sur ) as among his four companions the night of the alleged rape of a former nightclub hostess last year. Jose, one of four principal accused in the celebrated Maggie de la Riva rape case, denied, however, the charges of forcible abduction with rape and robbery filed against him and his companions by Zenaida de la Cruz, 28, and Araceli Sy, both nightclub hostesses. Jose mentioned Vincent Crisologo as among his companions while testifying in his defense before Judge Francisco de la Rosa of the local court of first instance. Jose claimed that both Zenaida and Araceli went voluntarily with his group to the Queen's Court motel here in the early morning of July 4, 1966. Jose said Zenaida and Crisologo went to a room together. However, Jose said, the two girls complained when he and his companions failed to give the girls any money. ...6 This was the continuation of such news item: "The girls charged that they were robbed by Jose and his friends of cash and jewelry inside the hotel. In their original complaint filed with the fiscal's office, the two girls named Vincent Crisologo as among the accused. The taxi driver, whose vehicle was used by Miss de la Cruz, also Identified Vincent Crisologo among the five youths in the incident. But the girls later executed an affidavit saying that they were mistaken in Identifying Crisologo as among the five men who allegedly abused them. Jose testified that he and Tillman were about to go to a party in Mandaluyong, Rizal, on the night of July 3, 1966, when Crisologo with three companions arrived. Jose said that young Crisologo wanted to borrow his car since his car would be used by his congressman father. Jose said that after the party they proceeded to Pasay City where Crisologo and a companion went to Bayside nightclub to look for Crisologo's girl friend. Minutes later, Crisologo and his friend went out of the club and they all proceeded to the Barbecue Plaza where they drank liquor. Shortly before 2 a.m., July 4, the group allegedly started for home in Jose's two-toned Mercedez Benz car. On the way, a taxicab overtook them. The cab allegedly carried Zenaida and Araceli. Jose said that Zenaida called Vincent and shouted for them to stop. They then proceeded to Queen's Court motel, Jose said. 7 The alleged offended party, according to the information filed by respondent Provincial Fiscal, Jesus F. Guerrero, is Vincent Crisologo. The information is dated February 5, 1970. Thereafter, there was a motion to quash filed by petitioners on August 14, 1970. An opposition was then filed by an assistant provincial fiscal on September 25, 1970. The order by respondent Judge denying the motion to quash came on December 17, 1970. An extensive motion for reconsideration submitted on February 23, 1971 having proved futile in view of an order of denial a month later from respondent Judge, this petition for certiorari and prohibition was filed with this Court.

As noted at the outset, certiorari and prohibition lie.

1. Petitioners were prosecuted for libel because the Evening News carried in its issue of September 1, 1967 a news item furnished it by the Philippine News Service. It was a faithful and accurate summary of what was testified to by a witness in a pending rape case. That was all. The name of the alleged offended party, Vincent Crisologo, was repeatedly mentioned in such testimony. It would have been a plain and simple distortion thereof if such a fact were omitted by the Philippine News Service. The Evening News in turn published such item. This is a case therefore that falls squarely within the protection of the free press provision found in the Constitution. That such news item possessed a defamatory aspect is beside the point. It cannot justify a prosecution for libel. Even prior to the 1935 Constitution, under the previous organic act, the Philippine Autonomy Act of 1916, which contained a similar provision mandating a free press, this Court, in the epochal Malcolm opinion in United States v. Bustos 8decided almost sixty years ago, to be precise on March 8, 1918, enunciated the principle that the freedom of the press is "so sacred to the people of these Islands and won at so dear a cost, [that it] should now be protected and carried forward as one would protect and preserve the covenant of liberty itself." 9 Thus it is clear that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guarantee. This Court has since then been committed to such an authoritative doctrine. 10 The opinion of Chief Justice Paras inQuisumbing v. Lopez, 11 a 1955 decision, is even more explicit on the matter. Thus: "The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and edition usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words. 12 At the beginning of this decade, this Court in Lopez v. Court of Appeals 13 expressed its commitment to such a principle in these words: "No inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory imputation resulting from the publication of respondent's picture with the offensive caption as in the case here complained of. ... If the cases mean anything at all then, to emphasize what has so clearly emerged, they call for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly offended, a realistic account of the obligation of a news media to disseminate information of a public attendant on the business of publishing cannot be ignored. 14

2. To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of privileged communication implicit in freedom of the press. As was so well put by Justice Malcolm in Bustos: "Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege. 15 He then quoted this excerpt from an American Supreme Court decision,Abbott v. National Bank of Commerce: "The doctrine of privileged communication rests upon public policy, 'which looks to the free and unfettered administration of justice, though as incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer. 16 Considering how ample is the protection afforded a person alleged to have injured another's reputation, it appears quite obvious that respondent Judge did infringe on the constitutional right of petitioners to press freedom when it denied the motion to quash. He apparently was equally unaware of this relevant paragraph in the Malcolm opinion: "A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides. 17 By no stretch of the imagination then could it be said that the Philippine News Service and the Evening News exhibited mala fides by the mere fact of narrating in a news item the testimony of a witness in a rape case just because it did cast a reflection on the conduct of a third party. The prosecution in its pleadings before the lower court could not deny the accuracy of what

was reported. Petitioners then ought not to have been subjected to the annoyance, inconvenience, and trouble of going to a distant province and defend themselves against a charge unwarrant under well-settled norms of constitutional dimension. The doctrine of privileged communication moreover is explicitly provided for in the Revised Penal Code, as an exception to the general principle that every defamatory imputation is presumed to be malicious, even if it is true in the absence of "good intention" and "justifiable motive" thus: "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. 18

3. There being a denial of a constitutional right, a jurisdictional issue was raised. It has been a well-settled doctrine since Conde v. Rivera, 19 that under such circumstances, the competence of a court to continue with a pending case ceases. 20 Nor is it to indulge merely in general propositions. In People v. Andres, 21 this Court precisely sustained a court of first instance when it quashed an information for libel, the accused, respondent Andres, relying on press freedom to show that the fact charged do not constitute an offense. As pointed out in the opinion of Justice Barrera, it was argued by the prosecution "that the trial court erred in dismissing the case on a mere motion to quash, contending that the trial judge's conclusion on the face of the information that defendant-appellee was prompted only by good motives assumes a fact to he proved, and that the alleged privileged nature of defendant-appellee's publication is a matter of defense and is not a proper ground for dismissal of the complaint for libel ... ." 22 That contention was rejected in this wise: "While there is some point to this contention, yet when in the information itself it appears, as it does in the present case, that the communication alleged to be libelous is contained in an appropriate pleading in a court proceeding, the privilege becomes at once apparent and defendant need not wait until the trial and produce evidence before he can raise the question of privilege. And if added to this, the questioned imputations appear, as they seem in this case, to be really pertinent and relevant to defendant's plea for reconsideration based on complainant's supposed partiality and abuse of power from which defendant has a right to seek relief in vindication of his client's interest as a litigant in complainant's court, it would become evident that the facts thus alleged in the information would not constitute an offense of libel.23 Similarly, a motion to quash was sustained in the later case of People v. Alvarez, 24 In the opinion of Justice Regala, it was pointed out: "As heretofore stated, this Court has adopted a liberal attitude in favor of the writer in matter of the relevancy of allegedly libelous statements in judicial pleadings. In U.S. v. Bustos, et al., 37 Phil. 731, this Court found occasion to express ills opinion on privileged communications, to wit: ... A privileged communication should not be subjected to miscroscopic examination to discover grounds of malice or falsity. Such excessive scrunity would defeat the protection which the law throws over privileged communication. ... It is worthy to mention here that in the information for libel, there is no allegation of the irrelevancy or impertinency of the questioned statements to the cause. Considering the above, We are of the opinion and so hold that no error was committed by the lower court in considering the questioned remarks of the appellee as privileged and in consequently dismissing the information for lack of cause of action. 25 In a third case, People v. Aquino, 26reference was made to People v. Andres to demonstrate that it is fitting and appropriate for a court of first instance to dismiss an information on a motion to quash where the privileged character of the, alleged offending publication is apparent. Respondent Judge ought not to have betrayed lack of sensitivity to the categorical pronouncements of this Court in the above three decisions that call for application,

4. Nor is a different conclusion called for just because the heading of the news item arising from the testimony of Jaime Jose was worded thus: "LINK CRISOLOGO SON TO PASAY RAPE CASE." How else could it have been expressed? That was to portray with accuracy what was contained in the news item. What was testified to was to that effect. It succinctly set forth the facts. There was no attempt to sensationalize. The tone is both neutral and objective. Again there is relevance to the following excerpt from Quisumbing v. Lopez: "The Court of Appeals found 'that the context of the article in question, is a fair, impartial and true report of official or public proceeding authorized by

law. The news item was the result of a press release in connection with an official investigation of the Anti-Usury Division, N. B. I., and was a substantial, if not a faithful reproduction of the said press release which was, in turn, an accurate report of the official proceedings taken by the Anti-Usury Division. The article merely reported a raid on the 'business offices of three alleged money lenders;' and related the steps actually taken or to be taken by the proper officials relative to the investigation. It did not go beyond the actual report of official actuations. The theory of the petitioner, stripped of incidentals, is that while the body of the news item may be considered as being fair, impartial and accurate report of an official investigation of the Anti-Usury Division of the National Bureau of Investigation and therefore privileged, its headline NBI MEN RAID OFFICES OF 3 CITY USURERS, admittedly not forming part of the basic press release but merely added by the respondents, is libelous per se, because the petitioner had thereby been branded and condemned as a 4 usurer' when as a matter of fact no criminal charge was even filed against him for the crime of usury in any court of justice. 27 Nonetheless, the newspaper publisher was not held liable. The Chief Justice then explained why: "We are of the opinion that the appealed decision is correct. The petitioner, while assuming that the article in question is privileged, argues that the headline (libelous per se) added by the respondents rendered the same actionable, because said headline is not borne out by the facts recited in the context. We believe that nobody reading the whole news item would come to the conclusion that the petitioner had been accused or convicted of usury. We agree with the Court of Appeals that the headline complained of may fairly be said to contain a correct description of the news story. The fact that the raid was conducted by anti-usury agents following receipt of a complaint against the petitioner and two others, coupled with the announcement by the Chief of the NBI Anti-Usury Division that criminal action would be filed in the city fiscal's office, naturally would lead one to think that the persons involved were usurers. Nothing in the headline or the context of the article suggested the Idea that the petitioner was already charged with or convicted of the crime of usury. 28

WHEREFORE, the writ of certiorari prayed for is granted and the order of respondent Judge denying the motion to quash of December 17, 1970 as well as the order of respondent Judge of March 25, 1971 denying the motion for reconsideration filed by petitioners are set aside and nullified. The writ of prohibition is likewise granted and the restraining order issued on June 10, 1971 made permanent, respondent Judge or any person who may have taken his place being prohibited from taking any action in Criminal Case No. 11-V for Libel except for the purpose of dismissing the same. No costs.

Antonio and Concepcion Jr., JJ., concur.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-16027             May 30, 1962

LUMEN POLICARPIO, plaintiff-appellant, vs.THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN, MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.

Mario Bengzon for plaintiff-appellant.Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants' counterclaim, without special pronouncement as to costs. Originally certified to the Court of Appeals, the record on appeal was subsequently forwarded to us in view of the amount involved in the complaint (P300,000.00).

Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral damages, P60,000 as correctional and exemplary damages, and P20,000, as attorney's fees, aside from the costs, by reason of the publication in the Saturday Mirror of August 11, 1956, and in the Daily Mirror of August 13, 1956, of two (2) articles or news items which are claimed to be per se defamatory, libelous and false, and to have exposed her to ridicule, jeopardized her integrity, good name and business and official transactions, and caused her grave embarrassment, untold and extreme moral, mental and physical anguish and incalculable material, moral, professional and business damages. The defendants are The Manila Times Publishing Co., Inc., as publisher of The Saturday Mirror and The Daily Mirror, which are newspapers of general circulation in the Philippines, and Constante C. Roldan, Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article and the managing editor, the associate editor and the news editor, respectively, of said newspapers.

After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present action was initiated, the defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations thereof, alleging special defenses and setting up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due course, later on, said court rendered the aforementioned decision, upon the ground that plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although portions thereof were inaccurate or false.

Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was executive secretary of the local UNESCO National Commission. As such officer, she had preferred charges against Herminia D. Reyes, one of her subordinates in said Commission, and caused her to be separated from the service. Miss Reyes, in turn, preferred counter-charges which were referred to Col. Crisanto V. Alba, a Special Investigator in the Office of the President. Pending completion of the administrative investigation, which began in June, 1956, Miss Reyes filed with the Office of the City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for alleged malversation of public funds and another complaint for alleged estafa thru falsification of public documents, which were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m. Meanwhile, or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front page of The Saturday Mirror:

WOMAN OFFICIAL SUED PCAC RAPS L. POLICARPIO ON FRAUDS 

Unesco Official Head Accused on Supplies, Funds Use by Colleague 

By Constante C. Roldan

Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and estafa in complaints filed with the city fiscal's office by the Presidential Complaints and Action Commission today.

The criminal action was initiated as a result of current administrative investigation against the Unesco official being conducted by Col. Crisanto V. Alba, Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant. The Unesco commission functions under the Office of the President.

Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on August 22 at 2 p.m. Colonel Alba, in turn, indicated that the administrative phase of the inquiry will continue Monday and then resume on August 21 at Malacañan Park. The Palace Investigator said there are other charges, but would not specify these.

Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly indicated that the accused had used Unesco stencils for private and personal purposes. Specification reputedly said that Miss Policarpio had taken stencils from the Unesco storeroom and used these for French lessons not at all connected with Unesco work; for the preparation of contracts of sale of pianos in her business establishment; for preparation of invitations sent to members of the League of Women Voters of which she is one of the officers.

Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico Vergara and Pablo Armesto both of the Unesco. 1äwphï1.ñët

Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955, Miss Policarpio was accused of having collected expenses for supposed trips. The accusation said the Unesco official had sought reimbursement of expenses for a trip to Baler, Quezon, on Aug. 19, last year, representing expenses of her car when in fact she supposedly rode in an army plane.

Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane trip in her newspaper column. The same voucher also allegedly collected expenses for going to a Unesco Bayambang (Pangasinan) project, although records reputedly showed that she was absent in that conferences.

Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and others, also of the PAF.

Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial disbursements in their office. The first was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the Social Welfare Administration and the UNAC while she had charge of these.

The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges including conduct "unbecoming a lady", and as a result had not been paid her salary. She appealed to Malacañan which dismissed her suit and later she sued before Judge Rafael Amparo to compel payment of her salary. The court also rejected her plea on the ground that she had not exhausted all administrative remedies, the Palace not having made a clearcut decision on her case.

The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and of Miss Reyes, taken during the administrative investigation being conducted by Col. Alba — another news item, reading:

"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO Alba Probes Administrative Phase of 

Fraud Charges Against Unesco Woman Official; Fiscal Sets Prelim Quiz 

Of Criminal Suit on Aug. 22.

The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national commission here, opened in Malacañan before Col. Crisanto V. Alba.

The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case before the Presidential Complaints and Action Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.

Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement of supposed official expenses.

Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the PCAC had initiated the criminal action before the city fiscal's office. The complaint before the fiscal was started by an information she naming Herminia D. Reyes as complainant and citing other persons as witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug. 22.

Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly used several sheets of government stencils for her private and personal use, such as for French lessons, contracts of sale of pianos and for invitations of the League of Women Voters of which she (Miss Policarpio) is an officer. The Unesco commission here functions under the Office of the President.

The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.

Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss Reyes, petitioned for the suspension of Miss Policarpio, executive secretary of the Unesco.

Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.

During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC who brought with him 18 sheets of stencil which were allegedly used by Miss Policarpio for her personal use. These sheets were admitted as temporary exhibits.

The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he could not identify which of the sheets he had received.

The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.

The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to Quezon Province and to Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco official had asked for refund of expenses for use of her car when, Miss Reyes claimed she had actually made the trip aboard an army plane.

Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought allegedly refund of expenses.

The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at the Palace and before the Court for payment of her salary.

The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given prominence with a 6-column (about 11 inches) banner headline of one-inch types. Admittedly, its sub-title — "PCAC RAPS L. POLICARPIO PIO ON FRAUD" — printed in bold one-centimeter types, is not true. Similarly, the statement in the first paragraph of the article, to the effect that plaintiff "was charged with malversation and estafa in complaints filed with the city fiscal's office by the Presidential Complaint and Action Commission" — otherwise known as PCAC — is untrue, the complaints for said offenses having been filed by Miss Reyes. Neither is it true that said "criminal action was initiated as a result of current administrative, investigation", as stated in the second paragraph of the same article.

Plaintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had shown that plaintiff was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a consequence, the PCAC had filed the corresponding complaints with the city fiscal's office. She alleges, also, that although said article indicates that the charges for malversation and for estafa through falsification against her referred, respectively, to the use by her of Unesco stencils allegedly for private and personal purposes, and to the collection of transportation expenses, it did not mention the fact that the number of stencils involved in the charge was only 18 or 20, that the sum allegedly misappropriated by her was only P54, and that the falsification imputed to her was said to have been committed by claiming that certain expenses for which she had sought and secured reimbursement were incurred in trips during the period from July 1, 1955 to September 30, 1955, although the trips actually were made, according to Miss Reyes, from July 8 to August 31, 1955. By omitting these details, plaintiff avers, the article of August 11, 1956, had the effect of conveying the idea that the offenses imputed to her were more serious than they really were. Plaintiff, likewise, claims that there are other inaccuracies in the news item of August 13, 1956, but, we do not deem it necessary to dwell upon the same for the determination of this case.

Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the PCAC, but by Miss Reyes, this inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said office. As regards the number of sheets of stencil allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the nature of the falsification imputed to her, defendants argue that these "details" do not affect the truthfulness of the article as a whole, and that, in any event, the insignificant value of said sheets of stencil and the small amount allegedly misappropriated, would have had, if set forth in said article, a greater derogatory effect upon the plaintiff, aside from the circumstance that defendants had no means of knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had already taken the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes. Hence, defendants could have ascertained the "details" aforementioned, had they wanted to. Indeed, some of the defendants and/or their representatives had made appropriate inquiries from Col. Alba before said date, and some "details" — though not those

adverted to above — appear in the article then published, whereas the number of sheets of stencil allegedly misused was mentioned in the news item of August 13, 1956.

Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the damage caused to the offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or value of the property embezzled is material to said offense.

Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the Government, like the PCAC, particularly after an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of the accused is greater than when the complaints are filed by a private individual, specially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the complainant from her employment. It is only too apparent that the article published on August 11, 1956, presented the plaintiff in a more unfavorable light than she actually was.

It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are not of confidential nature, because the public is entitled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy immunity, a publication containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and without any comments or remarks.

Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff. However, Article 354 of the Revised Penal Code, provides:

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 other functions.

In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her in a worse predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings there in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being false. Accordingly, the defamatory imputations contained in said article are "presumed to be malicious".

Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the complaints had been filed with the Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col. Alba? Either they knew the truth about it or they did not know it. If they did, then the publication would be actually malicious. If they did not or if they acted under a misapprehension of the facts, they were guilty of negligence in making said statement, for the consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the Philippines; 17 R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of justice and of all parties concerned would be served if the defendants indemnify the plaintiff in the sums of P3,000, by way of moral damages, and P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to pay jointly and severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees, in addition to the costs. It is so ordered.

Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.Bengzon, C.J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-26549 July 31, 1970

EUGENIO LOPEZ, publisher and owner of the "MANILA, CHRONICLE and JUAN T. GATBONTON,petitioners, vs.THE HON. COURT OF APPEALS and FIDEL G. CRUZ, respondents.

Salonga, Ordoñez, Sicat & Associates for petitioners.

 

FERNANDO, J.:

There is an element of novelty in this appeal by certiorari from a decision of respondent Court of Appeals holding petitioners, the then publisher and editor of This Week Magazine, liable in damages to the tune of eleven thousand pesos arising from the publication of a picture of respondent, Fidel G. Cruz, as being responsible for the hoax of the year. The absence of any connection either fanciful or remote with such event is admitted. The view is pressed by petitioners, invoking a liberal construction of the implications of press freedom, owning up to the mistake, unfortunately not discovered until it was too late, and publishing a correction as an earnest of its good faith, that they should not be made to pay at all. This Court, without discounting the elements of plausibility of their contention, cannot, however, close its eyes to the injury inflicted on respondent and indulge them in such a plea. It is not disposed though to affirm respondent Court's decision in its entirety. Considering all the circumstances, the damages awarded to private respondent appear to be far too generous. A reduction is in order. The sum of one thousand pesos would be enough. So we decide.

The antecedents of the case follow: In the early part of January, 1956, there appeared on the front page of The Manila Chronicle, of which petitioner Eugenio Lopez was the publisher, as well as on

other dailies, a news story of a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by name, sending a distress signal to a passing United States Airforce plane which in turn relayed the message to Manila. He was not ignored, an American Army plane dropping on the beach of an island an emergency-sustenance kit containing, among other things, a two-way radio set. He utilized it to inform authorities in Manila that the people in the place were living in terror, due to a series of killings committed since Christmas of 1955. Losing no time, the Philippines defense establishment rushed to the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported killer-menaced Babuyan Claro, however, Major Encarnacion and his men found, instead of the alleged killers, a man, the same Fidel Cruz, who merely wanted transportation home to Manila. In view of this finding, Major Wilfredo Encarnacion branded as a "hoax," to use his own descriptive word, the report of Fidel Cruz. That was the term employed by the other newspapers when referring to the above-mentioned incident.

This Week Magazine of the Manila Chronicle, then edited by petitioner Juan T. Gatbonton, devoted a pictorial article to it in its issue of January 15, 1956. Mention was made that while Fidel Cruz story turned out to be false if brought to light the misery of the people living in that place, with almost everybody sick, only two individuals able to read and write, food and clothing being scarce. Then in the January 29, 1956 issue of This Week Magazine, the "January News Quiz" included an item on the central figure in what was known as the Calayan Hoax, who nevertheless did the country a good turn by calling the government's attention to that forsaken and desolate corner of the Republic. Earlier in its Special Year End Quiz appearing in its issue of January 13, 1956, reference was made to a health inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer running loose on the island of Calayan so that he could be ferried back to civilization. He was given the appellation of "Hoax of the Year."

The magazine on both occasions carried photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were published on both occasions were that of private respondent Fidel G. Cruz, a businessman contractor from Santa Maria, Bulacan. It turned out that the photographs of respondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila Chronicle in accordance with the standard procedure observed in other newspaper offices, but when the news quiz format was prepared, the two photographs were in advertently switched.

As soon, however, as the inadvertent error was brought to the attention of petitioners, the following correction was immediately published in This Week Magazine on January 27, 1957: "While we were rushing to meet: the deadline for January 13th issue of This Week, we inadvertently published the picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our Own Who's Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who was connected with a story about a murderer running loose on Calayan Island. We here express our profound regrets that such an error occurred." Together with the foregoing correction, petitioners published the picture of Fidel Cruz; the photographs and the correction moreover were enclosed by four lines the type used was bolder than ordinary, and the item was placed in a conspicuous place in order to call the attention of the readers to such amends being made.  1

Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of Manila for the recovery of damages alleging the defamatory character of the above publication of his picture. After trial duly had, he was awarded five thousand pesos as actual damages, another five thousand pesos as moral damages, and one thousand pesos for attorney's fees. That judgment was affirmed on appeal to respondent Court. Hence, this petition for certiorari with the result, as already announced at the opening of this opinion, that while respondent Cruz is entitled to Prevail, the damages awarded him should be reduced.

1. It is on the freedom of the press that petitioners would stake their case to demonstrate that no action for libel would lie arising from the publication of the picture of respondent Cruz identified as responsible for the hoax of the year, when such was not the case at all. It is easily understandable why. No liability would be incurred if it could be demonstrated that it comes within the well-nigh all embracing scope of freedom of the press. Included therein is the widest latitude of choice as to what items should see the light of day so long as they are relevant to a matter of public interest, the insistence on the requirement as to its truth yielding at times to unavoidable inaccuracies attendant on newspapers and other publications being subject to the tyranny of deadlines. If no such showing could be plausibly made, however, it is difficult to resist the conclusion that there was in fact the commission of such quasi-delict. It was held in Lu Chu Sing v. Lu Tiong Gui, 2 that "the repeal of the old Libel Law (Act No. 277) did not abolish the civil action for libel." 3 A libel was defined in that Act as a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, ..., tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive, and thereby "pose him to public hatred, contempt, or ridicule," 4 There was an express provision in such legislation for a tort or a quasi-delict action arising from libel. 5 There is reinforcement to such a view in the new Civil Code providing for the recovery of moral damages for libel, slander or any other form of defamation. 6

There has been no time then in our judicial history when civil actions for libel did not form a staple part of litigations which had reached this Court. 7 Such is the case in a far greater measure in the United States. According to the standard treatise of Newell on Slander and Libel: "Publication of a person's photograph in connection with an article libelous of a third person, is a libel on the person whose picture is published, where the acts set out in the article are imputed to such person."  8 In support of the above statement, he made reference to several cases. 9Other decisions to the same effect have been promulgated since the fourth edition of Newell published in 1924. 1 0Why libel law has both a criminal and a civil aspect is explained by Hale in his Law of the Press thus: "On the one hand, libeling a person results in depriving him of his good reputation. Since reputation is a thing of value, truly rather to be chosen than great riches , an impairment of it is a personal wrong. To redress this personal wrong money damages are awarded to the injured person. On the other hand, the publication of defamatory statements tends strongly to induce breach of the peace by the person defamed, and hence is of peculiar moment to the state as the guardian of the public peace. Viewed from this angle, libel is a crime, and as such subjects the offender to a fine or imprisonment." 1 1

The first decision cited by Newell is a decision of Justice Holmes. The case is Peck v. Tribune Co. 1 2 Plaintiff there complained of her picture being published in an advertisement in defendant's newspaper. The Chicago Sunday Tribune, with certain words of commendation for a brand of liquor attributed to her when in fact she did not make such a statement at all and could not have made it, as she was a total abstainer. The defendant was held liable, for as Justice Holmes pointed out: "There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait, or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libelous, the defendant took the risk. As was said of such matters by Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.' ... The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else." 1 3

Learned Hand, in holding that an action for libel would lie arising from a publication in an advertisement of plaintiff's photograph yielding a "grotesque monstrous and obscene impression" and that he was "substantially enough ridiculed" to complain reached the conclusion "that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable." 1 4 It is likewise an accepted fact

that such publications do occasion greater injury to reputation than would mere words alone. Cardozo so aptly put the matter thus: "'It has its genesis in evils which the years have not erased. Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abide and Perpetuates the scandal.' ... When one speaks of a writing in this connection, one does not limit oneself to writings in manuscripts or books. Any symbol suffices — Pictures, hieroglyphics shorthand notes — if only what is written is intelligible to him who reads." 1 5

2. That is only one side of the picture, however. There is an impressive recognition in our decisions of the curtailment to which press freedom would be subjected if an action for libel were not rigorously scrutinized to remove doubts as to its being utilized to penalize the exercise of that constitutional right Thus, in the first leading case, United States v. Bustos, 1 6 Justice Malcolm could correctly stress: "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 officialdom. Men in public life may suffer under a hostile and an unjust accusation: the wound can be assuaged with the balm of a clear conscience. A public officer must not to be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as an individual is less than the State, so must expected criticism be born for the common good." 1 7 On this aspect of the question which, as answered by him, would require that a criminal suit for libel should not be utilized as a means for stifling press freedom, he categorically declared: "Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege." 1 8

In another civil action for libel, such a thought is expressed differently in this wise: "So long as it is done in good faith, newspapers have the legal right to have and express opinions on legal questions. To deny them that right would infringe upon the freedom of the press." 1 9 The last word on the subject, up to now at least, came fromQuisumbing v. Lopez. 2 0 In the language of the then Chief Justice Paras, who penned the opinion: "The Court of Appeals found as a fact that "there is no evidence in the record to prove that the publication of the news item under Consideration was prompted by personal ill will or spite, or that there was intention to do harm,' and that on the other hand there was 'an honest and high sense of duty to serve the best interests of the public, without self-seeking motive and with malice towards none.' Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and edition usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words." 2 1

It was not until 1964 that the United States Supreme Court had occasion to speak its mind on the subject. In the leading case of New York Times Co. v. Sulivan, 2 2 the nature of the question presented was set forth by Justice Brennan for the Court in the opening paragraph of his opinion: "We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct." 2 3 This is the Court's approach to such an issue: "In deciding the question now, we are compelled by neither precedent nor Policy to give any more weight to the epithet 'libel' than we have to other 'mere labels' of state law. ... Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this

Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." 2 4 Continuing the same trend, the opinion stressed further: "Thus we consider this case against the background of a profound national commitment to 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. ... The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection." 2 5

For liability to arise then without offending press freedom, there is this test to meet: "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 2 6 The United States Supreme Court went further in Curtis Publishing Co. v. Butts, 2 7 where such immunity, was held as covering statements concerning public figures regardless of whether or not they are government officials. Why there should be such an extension is understandable in the light of the broad scope enjoyed by press freedom which certainly allows a full and free discussion of public issues. What can be more logical and appropriate, then, than such an expansion of the principle. As noted by a commentator: "Since discussion of public issues cannot be meaningful without reference to the men involved on both sides of such issues, and since such men will not necessarily be public officials, one cannot but agree that the Court was right in Curtis to extend the Times rule to all public figures." 2 8

The significance of the foregoing line of decisions impressive for their consistency is quite obvious. No inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory imputation resulting from the publication of respondent's picture with the offensive caption as in the case here complained of. This is not to deny that the party responsible invites the institution either of a criminal prosecution or a civil suit. It must be admitted that what was done did invite such a dire consequence, considering the value the law justly places on a man's reputation. This is merely to underscore the primacy that freedom of the press enjoys. It ranks rather high in the hierarchy of legal values. If the cases moan anything at all then, to emphasize what has so clearly emerged, they call for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly offended a realistic account of the obligation of a news media to disseminate information of a public character and to comment thereon as well as the conditions attendant on the business of publishing cannot be ignored. To single out one decision, Quisumbing v. Lopez so speaks in tones loud and clear.

3. It is to the haven thus afforded by such a highly sympathetic ruling to press freedom that petitioners would seek refuge. The defamatory matter complained of in the Quisumbing case appeared in the headline. It was without basis, as shown by the text of the news item itself. Nonetheless, for the reasons expressed with vigor and clarity by former Chief Justice Paras, no liability was deemed incurred by the then publisher of the Manila Chronicle A newspaper, it is stressed, "should not be held to account to a point of suppression for honest mistakes or imperfection in the choice of words." The above ruling, coupled with the requirement in the New York Times decision of the United States Supreme Court, would for the writer of this opinion, furnish a sufficient basis for the success of this appeal. The Court, however, is not inclined to view matters thus. Obviously Quisumbing v. Lopez is not squarely in point. Here there was no pressure of a daily deadline to meet no occasion to act with haste as the picture of respondent was published in a weekly magazine. Moreover, there is the added requirement of reasonable care imposed by such decision which from the facts here found, appeared not to be satisfied. It cannot be concluded then that the plea of petitioners is sufficiently persuasive. The mandate of press freedom is not ignored, but here it does not speak unequivocally. It is not decisive of the basic issue. By itself, it does not have a controlling significance. So we hold.

4. Petitioners would make much, likewise, of their correction, which has all the force of a retraction, as a basis from being absolved from any pecuniary responsibility. The present Chief Justice in Policarpio v. Manila Times 2 9restated the controlling principle: "We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52)." 3 0

The correction promptly made by petitioners would thus call for a reduction in the damages awarded. It should be noted that there was no proof of any actual pecuniary logs arising from the above publication. It is worthwhile to recall what Justice Malcolm referred to as the tolerant attitude on the part of appellate courts on this score, the usual practice being "more likely to reduce damages for libel than to increase them." 3 1

WHEREFORE, the decision of respondent Court of Appeals of August 25, 1966 affirming the lower court decision of March 22, 1958 is hereby modified, petitioners Eugenio Lopez and Juan T. Gatbonton being ordered to pay jointly and severally the sum of P500.00 as moral damages and the additional amount of P500.00 for attorney's fees. Costs against petitioners.

Concepcion, C.J., Reyes, J.B.L., Zaldivar and Teehankee, JJ., concur.

Castro and Barredo, JJ., concur in the result.

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 77422 April 15, 1988

LIWAYWAY PUBLISHING, INC. AND U.S. AUTOMOTIVE CO., INC., petitioners, vs.PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, HON. RAMON A. DIAZ, DEPUTY MINISTER, HON. MARY CONCEPCION BAUTISTA COMMISSIONER, respondents.

G.R. No. 79126 April 15, 1988

BULLETIN PUBLISHING CORPORATION (BULLETIN), petitioner, vs.PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) SECRETARY RAMON A. DIAZ AND COMMISSIONER MARY CONCEPCION BAUTISTA, respondents.

R E S O L U T I O N

 

TEEHANKEE, C.J.:

These two cases are jointly resolved because of the common identity of and related issues by the parties, without prejudice to the writing of an extended opinion.

G.R. 77422 is a petition for certiorari and prohibition with preliminary injunction and/or restraining order filed on February 24, 1987 by Liwayway Publishing, Inc. (Liwayway hereafter) and U.S. automotive Co., Inc. (US Automotive hereafter) seeking to annul and set aside two writs of sequestration issued by the Presidential Commission on Good Government (Commission hereafter) on February 12, 1987 on the shares of stocks of U.S. Automotive in Liwayway, as well as the implementing directive addressed to the Central Bank Governor of even date and to prohibit the Commission from conducting proceedings in connection with the said sequestration.

G.R. 79126 is a petition for certiorari, prohibition and mandamus with prayer for preliminary writ of injunction and urgent ex-parte restraining order filed on July 27, 1987 by Bulletin Publishing Corporation (Bulletin hereafter) to set aside the April 14, 1987 order issued by the Commission which declared their intent to vote the "sequestered shares" in Bulletin; to prohibit the voting of Bulletin shares by respondents, their successors, on their representatives, to enjoin respondents, their successors, or their representatives from taking part or intervening, directly or indirectly, in any acts, in the management of Bulletin; and to direct the immediate acceptance by the Commission of Bulletin's offer to debosit in cash, under escrow, so as to protect the interest of the government, if any, a specific amount for the value of sequestered shares in the Bulletin pursuant to the restrictions on their transferability as provided in its Articles of Incorporation, with any banking institution as may be designated by this Court, pending and subject to final determination/adjudication of the ownership of said shares and to lift the sequestration order of April 11, 1986.

Liwayway and Bulletin are domestic corporations engaged in the business of publication of newspapers and magazines. The former publishes a daily newspaper, the "Balita," and three weekly vernacular magazines, namely, "Liwayway," "Bisaya" and "Bannawag," while the latter publishes the "Manila Bulletin" a daily newspaper and its weekly magazines, The "Philippine Panorama," all of general and national circulation. In both corporations, Mr. Emiho T. Yap is the biggest stockholder and Chairman of the Board of Directors. As of February 21, 1986, he held 2,617 Bulletin shares, while, U.S. Automotive, 1 a corporation wholly owned and controlled by him and his family, held 318,084 shares out of the total outstanding Bulletin shares of 567,808.5 with 198,052.5 thereof as treasury shares and 765,861 subscribed shares. 2 In Liwayway, "(B)y April, 1986, ... U.S. Automotive Co. owned almost 70% of total Liwayway issued shares ... 3

I. LIWAYWAY CASE

In G.R. 77422, the Commission had issued on February 12, 1987 two writs of sequestration, one addressed to the President/Chairman of the Board of the U.S. Automotive sequestering the President/Chairman's shares of stocks in the Liwayway as of April 15, 1986, and the other addressed to the President/Chairman of the Board of Liwayway sequestering all shares of stocks pertaining to U.S. Automotive in Liwayway Publishing, Inc. as of April 15, 1986.

On the same date, the Commission requested the Central Bank to instruct all commercial banks and non-bank financial institutions not to allow any withdrawals, transfers or remittances from funds or assets under any type of deposit accounts, trust accounts, and/or money market placements, including safety deposit boxes, stocks and bonds, bearer certificates and unnumbered accounts, except those which may pertain to payment of regular salaries and wages of Liwayway and HM Holding and Management, Inc. (hereafter HMH&M).

Petitioners' plea for a temporary restraining order was heard on February 26, 1987, the hearing being limited to whether a restraining order should issue to restrain the commission against denying

Liwayway the use and availment of its funds in the banks to put out its regular publications as well as against the Commission's interference or intervention in the management or operations of Liwayway, considering the Central Bank's blanket memorandum, at the Commission's behest, to all banks not to allow any withdrawals or remittances from its funds, except for "payment of regular salaries and wages" which would virtually shut down its publications.

The then Solicitor General, now Secretary of Justice, Sedfrey Ordoñez, as well as the Commission's then Vice-Chairman, now Chairman, Ramon Diaz, assured the Court that Liwayway's funds would not be choked off and that the Commission would not in any way interfere or intervene in the management or operations of the publication nor with its editorial policy or reportage or in any way impinge upon its freedom. It was brought out that Liwayway made over P8 million in 1986 and paid more than half of that in income tax, and they agreed further to preserve the status quo ante pending joining of the issues on the merits or a showing of some irregularity that would warrant the Commission's intervention.

On February 27, 1987, the Solicitor General filed his manifestation as undertaken by him, submitting a copy of the Commission's letter dated February 26, 1987, to the CB Governor, Jose Fernandez, modifying its previous memorandum of February 12th and asking him to instruct all banks to honor all checks of Liwayway and further stating that "(A)lthough mention is made in the letter of the naming of a fiscal agent, respondent Commission is not naming anyone at this time.

On the issue of freedom of the press, the Court noted with commendation the Solicitor General's pledge at the hearing that the Commission will not in any way act in such a way as to impinge upon the freedom of expression or freedom to publish the newspaper. The Court gave due faith and credence thereto and the above-cited undertakings of the Commission. Accordingly, in lieu of a temporary restraining order which has been rendered unnecessary by the Commission's manifestation and undertakings, the Court enjoined faithful compliance therewith by all concerned.

This renders moot this particular issue of unwarranted intervention of the Commission and impairment of press freedom. But with the closing out of this case, as hereafter ordered and the denial of petitioner's plea to lift the sequestration orders, the Court will formalize the parties' agreement through the issuance of an injunction to the same effect, to assure compliance regardless of any change in the composition of the Commission or of other public officials concerned.

As to the sequestration orders, the Commission claims that Emilio Yap, founder of U.S. Automotive Co., organized long before martial law, is a "crony" if not downright "dummy" of the deposed President Ferdinand Marcos. Mr. Yap, in turn, has strongly countered the Commission's allegations as to his alleged business association with Mr. Marcos and their prima facie sufficiently in this wise:

On March 2, 1987, petitioners filed its manifestation and reply to the opposition alleging the following:

1. Mr. Yap admits that he owns 2,508 shares of stocks of BASECO which constitute less than 2% of the total 218,819 outstanding shares of stocks of the company. He acquired the original 240 shares by subscription at the time of incorporation and augmented by stock dividends to the present stockholding of 2,508 shares.

2. Regarding the BASECO certificates of shares of stocks purportedly belonging to Yap and endorsed to "someone" whose name was left in blank — this Court should require the respondents to produce the originals of said stock certificates in order to verify the claim that they have been endorsed in blank.

3. He had resigned from the chairmanship of BASECO since October 20, 1983. Out of his duly paid investment of P60,000, he never received any cash dividend nor profited from BASECO.

4. He has never been a stockholder nor an officer of the Jai-Alai Corporation.

5. He owned only one qualifying share in the Manila International Port Terminals, Inc.(MIPTI) which he later endorsed to the new MIPTI Chairman. He resigned as chairman of the Board before the Aquino administration.

6. He invested in the Bulletin in 1961, as second biggest stockholder on the invitation of Gen. Menzi long before Mr. Marcos became president.

7. All original stock certificates issued to U.S. Automotive and treasury shares are all in the respective possession of the registered owners and have not been endorsed to anyone.

But as the Court has consistently held and reiterated in PCGG vs. Peña, G.R. No. 77663, decided also this month, the Supreme Court is not a trier of facts, and the parties' conflicting factual contentions have to be threshed out and adjudged in the Sandiganbayan, which is vested with exclusive jurisdiction over the case.

II. BULLETIN CASE

In G.R. 79126, the Commission issued on April 22, 1986 an order sequestering the shares of former President Marcos, Emilio Yap, Eduardo Cojuangco, Jr., their nominees or agents in the Bulletin Publishing Corporation. In an order dated April 14, 1987, the Commission declared their intent to vote the sequestered shares. Thus, on July 27, 1987, the instant petition was filed seeking the nullification of the above mentioned order. It is petitioner's contention that what is at stake here is the freedom of our press institutions to independently manage their own affairs and effectively preserve editorial policies and objectives, without the shadow of government participation in the same, that governmental presence in petitioner's board will most certainly cast that shadow and threaten the independence of the press as an institution of mass media protected and guaranteed by the Constitution. The Court issued a temporary retraining order on July 28, 1987 ordering the respondents, their successors, agents or representatives to cease and desist from voting Bulletin shares, or otherwise from taking part or intervening, directly or indirectly, in any acts in the management of the Bulletin daily newspaper.

Respondents' comment alleged that the Commission will vote only the shares of Cesar Zalamea (121,178 shares), Eduardo Cojuangco, Jr. (46,626 shares), and Jose Y. Campos (46,620.5 shares) for a total of 214,424.5 shares which were the subject of the sequestration order and that the shares of Emilio Yap were excluded by virtue of the Commission's order dated March 16, 1987.

Subsequently, however, petitioner alleged 4 in its memorandum of January 2, 1988 that on July 31, 1987, the Commission sold to it 46,620.5 Bulletin shares of Mr. Jose Y. Campos for a total price of P8,173,506.06 per PTC Check No. 606380 and voucher and 121,178 Bulletin shares of Cesar Zalamea for a total price of P21,244,926.96 per PTC Check No. 607887 and voucher issued on October 15, 1987. As to the remaining 46,626 Bulletin shares of Mr. Cojuangco, Jr., under sequestration, the petitioner has offered to deposit in cash the value of the shares with the Commission, in the amount of P8,174,470.32 per PTC Check No. 607590, issued on October 15, 1987 which awaits the Commission's acceptance.

Respondents' memorandum of January 26, 1988, however, stated that only Mr. Campos' shares were voluntarily surrendered, hence, they were accepted by the Commission. On the matter of the shares of Cojuangco and Zalamea, it contended that unless there is a confession or admission that the said shares are "ill-gotten assets" of Mr. Marcos and/or his cronies, the true ownership of the shares has still to be determined by the Sandiganbayan where Civil Case No. 0022 entitled "Republic ... vs. Emilio T. Yap, et al." is pending. Petitioner, however, denies being a party therein. Subject to said admission, the Commission considers it premature to enter into any transaction affecting those shares pending determination of their ownership.

In their Memorandum, respondents Commission and members expressly have declared that the Commission no longer intends to exercise its right to vote the sequestered shares, that the Commission's present role is confined largely to monitoring Bulletin's activities in terms of preventing any dissipation and disposition of funds and assets and does not extend to the exercise of the voting of the shares, unless subsequent events or circumstances call for such exercise pursuant to law. Thus, respondents urge the dismissal of the petition "for want of factual basis." As in the Liwayway case, the Commission concedes that it may not lawfully intervene and participate in the management and operations of a private mass media such as Bulletin for the purpose of maintaining its freedom and independence as guaranteed by the Constitution and therefore the temporary restraining order heretofore issued on July 28, 1987 ordering the Commission or its representative to "cease and desist from voting the shares or otherwise from intervening directly or indirectly in the management of petitioner Bulletin" will be made permanent. The issue left for resolution is whether the Commission may continue to refuse to accept the cash deposit offered for the present balance of 46,626 minority sequestered shares in the name of Mr. Eduardo Cojuangco as prayed for in the petition.

It is admitted of record that the Sequestration Order of April 22, 1986 is limited to a minority of 214,424.5 shares in the name of Messrs. Cesar Zalamea, Eduardo Cojuangco, Jr. and Jose Y. Campos at the time of its issuance, as follows:

Cesar Zalamea 121,178 shares

Eduardo Cojuangco, Jr. 46,626 shares

Jose Y. Campos 46,620.5 shares

Total 214,424.5 shares

and that the Bulletin shares of Emilio Yap owned by him since 1961 were excluded from the said sequestration, by virtue of the Commission's order of March 16, 1987.

Likewise, in consonance with the Commission's very purpose and objective of preserving the assets and ill-gotten wealth that may be recovered, pertaining to the deposed President Marcos, and converting them into cash to be returned to the people in government projects such as the Comprehensive Agrarian Reform Program (CARP), it has acknowledged the recognized vested right of the Bulletin to purchase Bulletin shares that may be put up for sale, since the government is barred anyway from acquiring ownership and management of private mass media such as the Bulletin Publishing, Inc. under Art. XVI, Sec. 11 of the Constitution which provides: "Sec. 11(1). The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens."

In the letter dated July 8, 1987 of Commission Chairman Diaz to Kapisanan ng mga Manggagawa sa Media ng Pilipinas (KAMMP), he recognized the restrictions on the transferability of Bulletin shares accruing in favor of petitioner Bulletin when he wrote.

In view of the foregoing, when and if we dispose of those shares, the first step to take is to offer the same to the corporation, and the corporation may offer it to the other stockholders if it so desires. But we cannot avoid the circumstance that the corporation itself will desire to buy the stocks and therefore, the transaction will end here.

(1) Thus, on July 31, 1987, PCGG sold to petitioner Bulletin 46,620.5 Bulletin shares of Mr. Jose Y. Campos for a total price of P8,173,506.06 per PTC Check No. 606380 and Voucher (pp. 11-12, Petitioner's Addendum).

(2) The PCGG also sold to petitioner Bulletin 121,178 Bulletin shares of Mr. Cesar C. Zalamea for a total price of P21,244,926.96 and accepted PTC Check No. 607887 and Voucher issued on October 15, 1987 (pp. 12-13, Petitioner's Addendum), now as (Annex 'A'). As already noted hereinabove, there is a counter-allegation on the part of the Commission that it had not sold the Zalamea shares but there are indications that it had accepted the check and voucher therefor as stated herein. Whatever be the case, this is immaterial in the light of the resolution of the case providing for the exercise of petitioner Bulletin's right of preemption over such shares.

(3) As to the remaining 46,626 Bulletin shares of Mr. Eduardo Cojuangco, Jr. under sequestration, petitioner Bulletin has consistently offered to deposit in cash the value of the shares with respondent PCGG, in the amount of P8,174,470.32 per PTC check No. 607590, issued on October 15, 1987, and which awaits PCGG acceptance. (pp. 13-14, Petitioner's Addendum).

Petitioner correctly maintains that its offer in good faith to PCGG of the cash deposit for the sequestered shares will protect the interest of the government, if any, pending final determination/adjudication of the matter.

The offer of cash deposit is in line with the government program on privatization and in keeping with constitutional guarantee of press freedom and to maintain private mass media free from government intervention in its management directly or indirectly.

The Commission has nothing to lose and everything to gain by accepting the cash deposit offered by petitioner for the shares in the name of Mr. Eduardo Cojuangco, Jr.

The cash deposit being offered by petitioner is similar in nature and purpose to a cash bond put up for a litigant during the pendency of the case. In both situations, the rights of the parties and of the government, are adequately protected.

This cash deposit including interest earning is to be applied on the said 46,626 shares under any of the following two (2) alternatives specifically proposed by petitioner:

Alternative "A" — To standby as full payment plus whatever interest earnings thereon upon final judgment of the Court declaring the Republic of the Philippines as owners of the 46,626 shares, accompanied by the corresponding original stock certificates, issued in the name of the government, duly endorsed in favor of the Bulletin Publishing Corporation, free from liens and encumbrances; or

Alternative "B" — To immediately return to Bulletin Publishing Corporation the cash deposit in the amount of P8,174,470.32 plus whatever interest earnings thereon upon final judgment by the Court declaring that Mr. Eduardo Cojuangco, Jr. is the true owner of the 46,626 shares.

This Resolution is issued to uphold the freedom of our press institutions to independently manage their affairs and effectively preserve their editorial policies and objectives, without the shadow of government participation and intervention. The Commission itself has recognized that government presence in petitioner's Board will most certainly cast that shadow and threaten the independence of the press which is protected and guaranteed by the Constitution, and hence had given up its initial Idea to vote the sequestered shares in petitioner Bulletin.

ACCORDINGLY, in the Liwayway case, G.R. No. 77422, judgment is rendered.

1. As per agreement of the parties as set forth in the Resolution of March 3, 1987, enjoining the Commission from any act interfering or intervening in any way or manner with the management or operations or afffirms of petitioner Liwayway Publishing, Inc.; and

2. Dismissing the petition for a writ of prohibition to enjoin respondents from enforcing in any manner the writs of sequestration heretofore issued over the questioned Liwayway shares whose ownership will have to be tried and determined in the Sandiganbayan.

In the Bulletin case, G.R. No. 79126, judgment is likewise rendered.

1. Making permanent the temporary restraining order heretofore issued on July 28, 1987;

2. Directing the Commission to accept the cash deposit of P8,174,470.32 offered by petitions; for the 46,626 sequestered shares in the name of Mr. Eduardo Cojuangco, Jr. expressly subject to the alternative conditions (A and B) hereinabove set forth, and likewise directing the Commission to accept the cash deposit, if it has not actually sold the Cesar C. Zalamea Bulletin shares to petitioner (supra, p. 13, par. [2]) of P21,244,926.96 for the sequestered shares of Bulletin in the name of Mr. Cesar Zalamea under the same alternatives already mentioned; and

3. Remanding the case regarding the issue of ownership of the said sequestered Bulletin shares for determination and adjudication to the Sandiganbayan.

Yap, Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Griño-Aquino, J., took no part.

Gutierrez, Jr., J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 194578               February 13, 2013

PHILIP SIGFRID A. FORTUN, Petitioner, vs.PRIMA JESUSA B. QUINSAYAS, MA. GEMMA OQUENDO, DENNIS AYON, NENITA OQUENDO, ESMAEL MANGUDADATU, JOSE PAVIA, MELINDA QUINTOS DE JESUS, REYNALDO HULOG, REDMOND BATARIO, MALOU MANGAHAS, DANILO GOZO, GMA NETWORK INC., through its new editors Raffy Jimenez and Victor Sollorano, SOPHIA DEDACE, ABS-CBN CORPORATION, through the Head of its News Group, Maria Ressa, CECILIA VICTORIA OREÑA-DRILON, PHILIPPINE DAILY INQUIRER, INC. represented by its Editor-in-Chief Letty Jimenez Magsanoc, TETCH TORRES, PHILIPPINE STAR represented by its Editor-in-Chief Isaac Belmonte, and EDU PUNAY, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for Contempt filed by Atty. Philip Sigfrid A. Fortun (petitioner) against Atty. Prima Jesusa B. Quinsayas (Atty. Quinsayas), Ma. Gemma Oquendo (Gemma), Dennis Ayon (Ayon), Nenita Oquendo (Nenita), Esmael Mangudadatu (Mangudadatu), Jose Pavia (Pavia), Melinda Quintos De Jesus (De Jesus), Reynaldo Hulog (Hulog), Redmond Batario (Batario), Malou Mangahas (Mangahas), and Danilo Gozo (Gozo). Atty. Quinsayas and the other respondents, who are not from the media, are referred to in this case as Atty. Quinsayas, et al. Petitioner also named as respondents GMA Network, Inc. (GMA Network) through its news editors Raffy Jimenez and Victor Sollorano, Sophia Dedace (Dedace), ABS-CBN Corporation (ABS-CBN) through the Head of its News Group Maria Ressa (Ressa), Cecilia Victoria Oreña-Drilon (Drilon), Philippine Daily Inquirer, Inc. (PDI) represented by its Editor-in-Chief Letty Jimenez Magsanoc, Tetch Torres (Torres), Philippine Star (PhilStar) represented by its Editor-in-Chief Isaac Belmonte, and Edu Punay (Punay). Respondents Atty. Quinsayas, et al. and respondent media groups and personalities are collectively referred to in this case as respondents.

The Antecedent Facts

On 23 November 2009, a convoy of seven vehicles carrying the relatives of then Maguindanao vice-mayor Esmael "Toto" Mangudadatu, as well as lawyers and journalists, was on their way to the Commission on Elections office in Shariff Aguak to file Mangudadatu’s Certificate of Candidacy1 when they were accosted by a group of about 100 armed men at a checkpoint in Sitio Malating, Ampatuan town, some four to ten kilometers from their destination.2The group was taken hostage and brought to a hilly and sparsely-populated part of Sitio Magating, Barangay Salman, Ampatuan, Maguindanao.3 The gruesome aftermath of the hostage-taking was later discovered and shocked the world. The hostages were systematically killed by shooting them at close range with automatic weapons, and their bodies and vehicles were dumped in mass graves and covered with the use of a backhoe.4 These gruesome killings became known as the Maguindanao Massacre. A total of 57 victims were killed, 30 of them journalists. Subsequently, criminal cases for Murder were filed and raffled to the Regional Trial Court of Quezon City, Branch 221, and docketed as Criminal Cases No. Q-09-162148-172, Q-09-162216-31, Q-10-162652, and Q-10- 163766. Petitioner is the counsel for Datu Andal Ampatuan, Jr. (Ampatuan, Jr.), the principal accused in the murder cases.

In November 2010, Atty. Quinsayas, et al. filed a disbarment complaint against petitioner before this Court, docketed as Bar Matter No. A.C. 8827. The disbarment case is still pending.

Petitioner alleged that on 22 November 2010, GMA News TV internet website posted an article, written by Dedace, entitled "Mangudadatu, others seek disbarment of Ampatuan lawyer," a portion of which reads:

On Monday, Maguindanao Governor Esmael "Toto" Mangudadatu and four others filed a 33 page complaint against lawyer Sigrid Fortun whom they accused of "engaging in every conceivable chichancery or artifice to unduly delay the proceedings by using and abusing legal remedies available."5

On even date, Inquirer.net, the website of PDI, also published an article, written by Torres, which according to petitioner also stated details of the disbarment case, as follows:

"Respondent Atty. Fortun had astutely embarked in an untiring quest to obstruct, impede and degrade the administration of justice by filing countless causes of action, all in the hope of burying the principal issue of his client’s participation or guilt in the murder of 57 people that ill-fated day of November 23, 2009," the petitioners said.6

Petitioner further alleged that on 23 November 2010, PhilStar published an article, written by Punay, which gave details of the disbarment allegations, thus:

"Attorney Fortun used and abused legal remedies available and allowed under under the rules, muddled the issues and diverted the attention away from the main subject matter of the cases, read the complaint.

***** ***** *****

"Respondent Attorney Fortun’s act of misleading the prosecution and trial court is a dishonest/deceitful conduct violative of Code of Professional Responsibility," read the complaint.

"In so doing, he diminished the public confidence in the law and the legal profession, rendering him unfit to be called a member of the Bar."7

Further, petitioner alleged that on 23 November 2010, Channel 23 aired on national television a program entitled "ANC Presents: Crying for Justice: the Maguindanao Massacre." Drilon, the program’s host, asked questions and allowed Atty. Quinsayas to discuss the disbarment case against petitioner, including its principal points. Petitioner was allegedly singled out and identified in the program as the lead counsel of the Ampatuan family.

Petitioner alleged that Atty. Quinsayas, et al. actively disseminated the details of the disbarment complaint against him in violation of Rule 139-B of the Rules of Court on the confidential nature of disbarment proceedings. Petitioner further alleged that respondent media groups and personalities conspired with Atty. Quinsayas, et al. by publishing the confidential materials on their respective media platforms. Petitioner pointed out that Drilon discussed the disbarment complaint with Atty. Quinsayas in a television program viewed nationwide

Petitioner alleged that the public circulation of the disbarment complaint against him exposed this Court and its investigators to outside influence and public interference. Petitioner alleged that opinion writers wrote about and commented on the disbarment complaint which opened his professional and personal reputation to attack. He alleged that the purpose of respondents in publishing the disbarment complaint was to malign his personal and professional reputation, considering the following: (1) the bases of the charges were not new but were based on incidents

that supposedly took place in January 2010; (2) it was timed to coincide with the anniversary of the Maguindanao Massacre to fuel hatred, contempt and scorn for Ampatuan, Jr. and his counsel and violated the accused’s right to presumption of innocence and due process; (3) it was published following articles written about petitioner’s advocacy for the rights of an accused and negated the impact of these articles on the public; and (4) respondents knew that the charges were baseless as petitioner always opted for speedy trial and protection of the accused’s rights at trial. Petitioner further alleged that in announcing their "causes of action" in the disbarment case, respondents were only seeking the approval and sympathy of the public against him and Ampatuan, Jr.

In its Comment, GMA Network alleged that it has no newspaper or any publication where it could have printed the article. It alleged that it did not broadcast the disbarment complaint on its television station. GMA Network alleged that the publication had already been done and completed when Atty. Quinsayas distributed copies of the disbarment complaint and thus, the members of the media who reported the news and the media groups that published it on their website, including GMA Network, did not violate the confidentiality rule. GMA Network further alleged that Dedace, a field reporter for the judiciary, acted in good faith and without malice when she forwarded the news to the news desk. GMA News also acted in good faith in posting the news on its website. GMA Network denied that it conspired with the other respondents in publishing the news. GMA Network alleged that it posted the disbarment complaint, without any unfair, critical, and untruthful comment, and only after it was "published" by Atty. Quinsayas, et al. who furnished copies of the disbarment complaint to the media reporters. GMA Network alleged that it had no intention to malign petitioner’s personal and professional reputation in posting the news about the disbarment complaint on its website.

In her Comment, Dedace clarified that she is a field news reporter of GMA Network and not a writer of the GMA News TV website. Her beat includes the Supreme Court, the Court of Appeals, and the Department of Justice. Dedace alleged that on 22 November 2010, she received an advice from fellow field reporter Mark Merueñas that the lawyer of Mangudadatu would be filing a disbarment case against petitioner. She waited at the Supreme Court. At around 5:00 p.m., Atty. Quinsayas arrived. Atty. Quinsayas gave copies of the petition to news reporters and Dedace received one. Dedace prepared and sent her news story to GMA Network where it went to the editor. Dedace alleged that she did not breach the rule on confidentiality of disbarment proceedings against lawyers when she reported the filing of the disbarment complaint against petitioner. She alleged that she acted in good faith and without malice in forwarding her news story to the news desk and that she had no intention to, and could not, influence or interfere in the proceedings of the disbarment case. She further alleged that she honestly believed that the filing of the disbarment complaint against petitioner was newsworthy and should be reported as news.

PDI alleged in its Comment that it shares content with the Inquirer.net website through a syndication but the latter has its own editors and publish materials that are not found on the broadsheet. It alleged that Philippine Daily Inquirer, Inc. and Inquirer Interactive, Inc. are two different corporations, with separate legal personalities, and one may not be held responsible for the acts of the other.

Torres8 alleged in her Comment that on 17 November 2010, a private prosecutor told her and several other reporters that a disbarment case would be filed against petitioner. The disbarment case was actually filed on 22 November 2010 when Torres received a copy of the complaint. Since the lead of the story came from a lawyer, Torres did not consider that writing a story about the filing of the disbarment complaint might amount to contempt of court. Torres alleged that the writing of the story was an independent act and she did not conspire with any of the other respondents. Torres maintained that she acted in good faith in writing the news report because the Maguindanao Massacre was a matter of public concern and the allegations in the disbarment complaint were in connection with petitioner’s handling of the case. Torres further asserted that petitioner is a public figure and the public has a legitimate interest in his doings, affairs and character.

In her Comment, Ressa alleged that she was the former head of ABS-CBN’s News and Current Affairs Group and the former Managing Director of ANC. However, she was on terminal leave beginning 30 October 2010 in advance to the expiration of her contract on 3 January 2011. Ressa alleged that she had no participation in the production and showing of the broadcast on 23 November 2010. Ressa adopts the answer of her co-respondents ABS-CBN and Drilon insofar as it was applicable to her case.

ABS-CBN and Drilon filed a joint Comment. ABS-CBN alleged that ABS-CBN News Channel, commonly known as ANC, is maintained and operated by Sarimanok Network News (SNN) and not by ABS-CBN. SNN, which produced the program "ANC Presents: Crying for Justice: the Maguindanao Massacre," is a subsidiary of ABS-CBN but it has its own juridical personality although SNN and ABS-CBN have interlocking directors. ABS-CBN and Drilon alleged that the presentation and hosting of the program were not malicious as there was no criminal intent to violate the confidentiality rule in disbarment proceedings. They alleged that the program was a commemoration of the Maguindanao Massacre and was not a report solely on the disbarment complaint against petitioner which took only a few minutes of the one-hour program. They alleged that the program was not a publication intended to embarrass petitioner who was not even identified as the respondent in the disbarment complaint. Drilon even cautioned against the revelation of petitioner’s name in the program. ABS-CBN and Drilon further alleged that prior to the broadcast of the program on 23 November 2010, the filing of the disbarment complaint against petitioner was already the subject of widespread news and already of public knowledge. They denied petitioner’s allegation that they conspired with the other respondents in violating the confidentiality rule in disbarment proceedings. Finally, they alleged that the contempt charge violates their right to equal protection because there were other reports and publications of the disbarment complaint but the publishers were not included in the charge. They also assailed the penalty of imprisonment prayed for by petitioner as too harsh.

In their joint Comment, respondents Mangudadatu, Ayon, Nenita, and Gemma alleged that petitioner failed to prove that they actively participated in disseminating details of the disbarment complaint against him. They alleged that while they were the ones who filed the disbarment complaint against petitioner, it does not follow that they were also the ones who caused the publication of the complaint. They alleged that petitioner did not provide the name of any particular person, dates, days or places to show the alleged confederation in the dissemination of the disbarment complaint.

Respondents De Jesus, Hulog, Batario, and Mangahas, in their capacity as members of the Board of Trustees of the Freedom Fund for Filipino Journalists, Inc. (FFFJ) and Atty. Quinsayas, former counsel for FFFJ, also filed a joint Comment claiming that the alleged posting and publication of the articles were not established as a fact. Respondents alleged that petitioner did not submit certified true copies of the articles and he only offered to submit a digital video disk (DVD) copy of the televised program where Atty. Quinsayas was allegedly interviewed by Drilon. Respondents alleged that, assuming the articles were published, petitioner failed to support his allegations that they actively disseminated the details of the disbarment complaint.

In their joint Comment, PhilStar and Punay alleged that on 22 November 2010, Atty. Quinsayas, et al. went to this Court to file the disbarment complaint but they were not able to file it on that day.9 Atty. Quinsayas, et al. were able to file the disbarment complaint the following day, or on 23 November 2010. PhilStar and Punay alleged that their news article, which was about the plan to file a disbarment complaint against petitioner, was published on 23 November 2010. It came out before the disbarment complaint was actually filed. They alleged that the news article on the disbarment complaint is a qualified privileged communication. They alleged that the article was a true, fair, and accurate report on the disbarment complaint. The article was straightforward, truthful, and accurate, without any comments from the author. They alleged that Punay reported the plan of Mangudadatu,

et al. to file the disbarment complaint against petitioner as it involved public interest and he perceived it to be a newsworthy subject. They further alleged that assuming the news article is not a privileged communication, it is covered by the protection of the freedom of expression, speech, and of the press under the Constitution. They also alleged that the case is a criminal contempt proceeding and intent to commit contempt of court must be shown by proof beyond reasonable doubt. They further alleged that they did not commit any contemptible act. They maintained that the news article did not impede, interfere with, or embarrass the administration of justice. They further claimed that it is improbable, if not impossible, for the article to influence the outcome of the case or sway this Court in making its decision. The article also did not violate petitioner’s right to privacy because petitioner is a public figure and the public has a legitimate interest in his doings, affairs, and character.

Pavia died during the pendency of this case10 and was no longer included in the Comment filed for the FFFJ Trustees. Gozo resigned as member of the FFFJ Trustees and was no longer represented by the FFFJ counsel in filing its comment.11 Gozo did not file a separate comment.

The Issue

The only issue in this case is whether respondents violated the confidentiality rule in disbarment proceedings, warranting a finding of guilt for indirect contempt of court.

The Ruling of this Court

First, the contempt charge filed by petitioner is in the nature of a criminal contempt. In People v. Godoy,12 this Court made a distinction between criminal and civil contempt. The Court declared:

A criminal contempt is conduct that is directed against the dignity and authority of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect. On the other hand, civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein and is, therefore, an offense against the party in whose behalf the violated order is made.

A criminal contempt, being directed against the dignity and authority of the court, is an offense against organized society and, in addition, is also held to be an offense against public justice which raises an issue between the public and the accused, and the proceedings to punish it are punitive. On the other hand, the proceedings to punish a civil contempt are remedial and for the purpose of the preservation of the right of private persons. It has been held that civil contempt is neither a felony nor a misdemeanor, but a power of the court.

It has further been stated that intent is a necessary element in criminal contempt, and that no one can be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it. On the contrary, there is authority indicating that since the purpose of civil contempt proceedings is remedial, the defendant’s intent in committing the contempt is immaterial. Hence, good faith or the absence of intent to violate the court’s order is not a defense in civil contempt.13

The records of this case showed that the filing of the disbarment complaint against petitioner had been published and was the subject of a televised broadcast by respondent media groups and personalities.

We shall discuss the defenses and arguments raised by respondents.

GMA Network, Inc.

GMA Network’s defense is that it has no newspaper or any publication where the article could be printed; it did not broadcast the disbarment complaint in its television station; and that the publication was already completed when Atty. Quinsayas distributed copies of the disbarment complaint to the media.

GMA Network did not deny that it posted the details of the disbarment complaint on its website. It merely said that it has no publication where the article could be printed and that the news was not televised. Online posting, however, is already publication considering that it was done on GMA Network’s online news website.

Philippine Daily Inquirer, Inc.

PDI averred that it only shares its contents with Inquirer.net through a syndication. PDI attached a photocopy of the syndication page stating that "[d]ue to syndication agreements between PDI and Inquirer.net, some articles published in PDI may not appear in Inquirer.net."14

A visit to the website describes Inquirer.net as "the official news website of the Philippine Daily Inquirer, the Philippines’ most widely circulated broadsheet, and a member of the Inquirer Group of Companies."15 PDI was not able to fully establish that it has a separate personality from Inquirer.net.

ABS-CBN Corporation

ABS-CBN alleged that SNN is its subsidiary and although they have interlocking directors, SNN has its own juridical personality separate from its parent company. ABS-CBN alleged that SNN controls the line-up of shows of ANC.

We agree with ABS-CBN on this issue. We have ruled that a subsidiary has an independent and separate juridical personality distinct from that of its parent company and that any suit against the the latter does not bind the former and vice-versa.16 A corporation is an artificial being invested by law with a personality separate and distinct from that of other corporations to which it may be connected.17 Hence, SNN, not ABS-CBN, should have been made respondent in this case.

Maria Ressa

Respondent Ressa alleged that she was on terminal leave when the program about the Maguindanao Massacre was aired on ANC and that she had no hand in its production. Ressa’s defense was supported by a certification from the Human Resource Account Head of ABS-CBN, stating that Ressa went on terminal leave beginning 30 October 2010.18 This was not disputed by petitioner.

Sophia Dedace, Tetch Torres, Cecilia Victoria Oreña-Drilon,

and Edu Punay

Basically, the defense of respondents Dedace, Torres, Drilon, and Punay was that the disbarment complaint was published without any comment, in good faith and without malice; that petitioner is a public figure; that the Maguindanao Massacre is a matter of public interest; and that there was no conspiracy on their part in publishing the disbarment complaint. They also argued that the news reports were part of privileged communication.

In Drilon’s case, she further alleged that the television program was a commemoration of the Maguindanao Massacre and not solely about the filing of the disbarment case against petitioner. Even as the disbarment complaint was briefly discussed in her program, petitioner’s name was not mentioned at all in the program.

Violation of Confidentiality Rule by Respondent Media Groups and Personalities

Section 18, Rule 139-B of the Rules of Court provides:

Section 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases.

The Court explained the purpose of the rule, as follows:

x x x. The purpose of the rule is not only to enable this Court to make its investigations free from any extraneous influence or interference, but also to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients and litigants; it is also to deter the press from publishing administrative cases or portions thereto without authority. We have ruled that malicious and unauthorized publication or verbatim reproduction of administrative complaints against lawyers in newspapers by editors and/or reporters may be actionable. Such premature publication constitutes a contempt of court, punishable by either a fine or imprisonment or both at the discretion of the Court. x x x19

In People v. Castelo,20 the Court ruled that contempt is akin to libel and that the principle of privileged communication may be invoked in a contempt proceeding. The Court ruled:

While the present case involves an incident of contempt the same is akin to a case of libel for both constitute limitations upon freedom of the press or freedom of expression guaranteed by our Constitution. So what is considered a privilege in one may likewise be considered in the other. The same safeguard should be extended to one whether anchored in freedom of the press or freedom of expression. Therefore, this principle regarding privileged communications can also be invoked in favor of appellant.21

The Court recognizes that "publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech."22 As a general rule, disbarment proceedings are confidential in nature until their final resolution and the final decision of this Court. In this case, however, the filing of a disbarment complaint against petitioner is itself a matter of public concern considering that it arose from the Maguindanao Massacre case. The interest of the public is not on petitioner himself but primarily on his involvement and participation as defense counsel in the Maguindanao Massacre case. Indeed, the allegations in the disbarment complaint relate to petitioners supposed actions involving the Maguindanao Massacre case.

The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were journalists. It is understandable that any matter related to the Maguindanao Massacre is considered a matter of public interest and that the personalities involved, including petitioner, are considered as public figure. The Court explained it, thus:

But even assuming a person would not qualify as a public figure, it would not necessarily follow that he could not validly be the subject of a public comment. For he could; for instance, if and when he would be involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense

the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety.23 (Boldface in the original)

Since the disbarment complaint is a matter of public interest, legitimate media had a right to publish such fact under freedom of the press. The Court also recognizes that respondent media groups and personalities merely acted on a news lead they received when they reported the filing of the disbarment complaint.

The distribution by Atty. Quinsayas to the media of the disbarment complaint, by itself, is not sufficient to absolve the media from responsibility for violating the confidentiality rule. However, since petitioner is a public figure or has become a public figure because he is representing a matter of public concern, and because the event itself that led to the filing of the disbarment case against petitioner is a matter of public concern, the media has the right to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private matter as the media would then be bound to respect the confidentiality provision of disbarment proceedings under Section 18, Rule 139-B of the Rules of Court.

Section 18, Rule 139-B of the Rules of Court is not a restriction on the freedom of the press. 1âwphi1 If there is a legitimate public interest, media is not prohibited from making a fair, true, and accurate news report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment complaint, members of the media must preserve the confidentiality of disbarment proceedings during its pendency. Disciplinary proceedings against lawyers must still remain private and confidential until their final determination.24 Only the final order of this Court shall be published like its decisions in other cases.25

Petitioner also failed to substantiate his claim that respondent media groups and personalities acted in bad faith and that they conspired with one another in their postings and publications of the filing of a disbarment complaint against him. Respondent media groups and personalities reported the filing of the disbarment complaint without any comments or remarks but merely as it was – a news item. Petitioner failed to prove that respondent media groups and personalities acted with malicious intent. Respondent media groups and personalities made a fair and true news report and appeared to have acted in good faith in publishing and posting the details of the disbarment complaint. In the televised broadcast of the commemoration of the Maguindanao Massacre over ANC, the disbarment case was briefly discussed but petitioner was not named. There was also no proof that respondent media groups and personalities posted and published the news to influence this Court on its action on the disbarment case or to deliberately destroy petitioner’s reputation. It should also be remembered that the filing of the disbarment case against petitioner entered the public domain without any act on the part of the media. As we will discuss later, the members of the media were given copies of the disbarment complaint by one of the complainants.

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

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

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

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

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

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

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

WHEREFORE, we find Atty. Prima Jesusa B. Quinsayas GUILTY of indirect contempt for distributing copies of the disbarment complaint against Atty. Philip Sigfrid A. Fortun to members of the media and we order her to pay a FINE of Twenty Thousand Pesos (P20,000).

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

 

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areasprovided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public, except in the common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases

underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts

should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared

personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby

there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

 

 

 

Separate Opinions

 

CRUZ, J.: concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same, and on the right track this time.

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what the Commission on Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present virtues and past innocence, the opportunists for whom flexibility is a means of political survival and even of financial gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential and inane question of where stickers should be stuck. I have nothing but praise for the zeal of the Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it is barking up the wrong tree.

Separate Opinions

CRUZ, J., concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban case, I hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same, and on the right track this time.

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the electorate is precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what the Commission on Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or crack a

toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be allowed and stickers should not be attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present virtues and past innocence, the opportunists for whom flexibility is a means of political survival and even of financial gain, and, most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these office-seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential and inane question of where stickers should be stuck. I have nothing but praise for the zeal of the Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it is barking up the wrong tree.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 102653 March 5, 1992

NATIONAL PRESS CLUB, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

G.R. No. 102925 March 5, 1992

PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and President, and FRAULIN A. PEÑASALES as its Corporate Secretary, petitioners, vs.COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON. GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents.

G.R. No. 102983 March 5, 1992

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in behalf of the Philippine electorate as a class; ORLANDO S. MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of all candidates in the May 1992 election as a class, petitioners, vs.COMMISSION ON ELECTIONS, respondent.

 

FELICIANO, J.:

In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of Section 11 (b) of Republic Act No. 6646.

Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of election issues and of credentials of the candidates is being curtailed.

It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and opinion.

The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act No. 6646, known as the Electoral Reforms Law of 1987:

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

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

Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election Code of the Philippines, which provide respectively as follows:

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein

candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.

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

The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution which provides as follows:

Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor,for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." 1

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken

in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." 2

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

Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.

In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain important limitations.

Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant election period.

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 4 of print space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or

columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office — constitutes the critical distinction which must be made between the instant case and that ofSanidad v. Commission on Elections. 5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as follows:

Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No. 6766 on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said:

. . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in the plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis." 6 (Emphasis partly in the original and partly supplied)

There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective public offices in the province or city served by the newspaper or radio or television station. Some of the petitioners are apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission 7 that the possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure" "Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal.

The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting, opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their regular and normal information and communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of Comelec in respect of the content of the normal operations of media, nor in respect of the content of political advertisements which the individual candidates are quite free to present within their respective allocated Comelec time and Comelec space. There is here no "officious functionary of [a] repressive government" dictating what events or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to limit paid partisan political advertisements to for a other than modern mass media, and to "Comelec time" and "Comelec space" in such mass media.

Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid.

My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election Code, place political candidates on complete and perfect equalityinter se without regard to their financial affluence or lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the supervision or regulation of communication and information media is not, in itself, a forbidden modality is made clear by the Constitution itself in Article IX (C) (4).

It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on pronouncements, activities, written statements of the candidates themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites of fairness and equal opportunity are, after all, designed to benefit the candidates themselves.

Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of

television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real sense, listeners and viewers constitute a "captive audience." 8

The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of "packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Bidin, Griño-Aquino, Medialdea, Regalado, Romero and Nocon, JJ., concur.

Bellosillo, J., took no part.

 

 

 

Separate Opinions

 

DAVIDE, JR., J.: concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.

The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their absolutist moorings.

It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is not an absolute right.

Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only in exceptional cases. Freedom of speech

does not comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1

The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from responsibility, but with responsibility.

I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:

(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:

The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. (emphasis supplied)

(2) Section 1 of Article XIII (Social Justice and Human rights) which reads:

The congress shall give highiest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth andpolitical power for the common good. (emphasis supplied)

(3) Section 4 of Article IX-C which provides:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (emphasis supplied)

There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:

Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the

adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle ofsalus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number." 2

Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates made it.

Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice. With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false accusations.

Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure, R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes. The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:

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

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

This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:

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

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

Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the area in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.

this Court ruled:

Against the background of such facilities accorded by the law for all candidates, rich and poor alike, and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration and the equality or chances among the candidates, the restriction on the freedom of expression of the candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the substance and vitality of his freedom of expression itself.

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Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs. Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and of the denial of the equal protection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in these two cases, applying the less stringent balancing -of-interests criterion, are far outweighed by the all important substantive interests of the State to preserve the purity of the ballot and to render more meaningful and real the guarantee of the equal protection of the laws.

In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of Section 11(b) of R.A. No. 6646. Thus:

However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grantsissued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and

of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.

Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,et al.: 6

. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. The onerous task of proving otherwise is on the party seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an infringement of a constitutional provision, save in those cases where the challenged act is void on its face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7

The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and the executive as well.

For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such breach of the Constitution must be shown.

Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

 

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.

Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these petitions, states that:

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

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(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is a

candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and expression as guaranteed by Article III, Section 4 of the Constitution.

But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good.

xxx xxx xxx

It constitutes an implied limitation on the Bill of Rights. According to Fernando, 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 and 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." Significantly, 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. 1

Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2

In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information granted by the government or any subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections." 4

In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C, Section 4 of the Constitution 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.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print space and air time, and

yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs. Jaime N. Ferrer, et al., G.R. NO. L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize, if not approximate, equality of chances among the various candidates for elective public office.

Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for campaign or other political purposes, access to print space and air time would be given equally to all candidates. Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among all candidates. Hence, there would be in the final analysis, inequality.

Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the floodgates to corruption in public office because a winning candidate who overspends during the election period must necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly constitute a positive and effective measure against corruption in public office.

Petitioners also contend that the challenged provision is "violative of the people's right to information particularly about the conduct of public officials including the character and qualifications of candidates seeking public office."

I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their votes. 6

Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the same law afford a candidate several venues by which the can fully exercise his freedom of expression, including freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their qualifications and platforms.

As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the designated common poster areas to post, display and exhibit election propaganda to announce or further their candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate; publishing or distributing campaign literature or materials designed to support the election of any candidate; and directly or indirectly solicit votes, pledges or support for a candidate. 7

In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the means it employs to achieve such purpose are reasonable and even timely.

Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No. 6646.

GUTIERREZ, JR., J., dissenting:

I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of every citizen to be informed in every way possible about the qualifications and programs of those running for public office.

Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are and what they stand for.

With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the Presidency. Certainly, they do not know who are running for the Senate.

The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better qualified but lesser known.

I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the Constitutional Commission and distinguished mass communication personality (to name only three) are also running for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign period. A candidate to whom columnists and radio-television commentators owe past favors or who share their personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.

Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real function — insuring the integrity of the voting process and safeguarding the true results of the elections.

Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national and local positions is beyond my poor power to comprehend.

I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh, imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.

Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed during the limited period of the election campaign when information is most needed. Moreover, the mere thought that published materials are supervised by a government office is enough to turn the reader off. Only faithful followers who already know for whom they are voting will bother to read the statements of their chosen candidate in the Comelec corner of the newspapers.

The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The amount which a political party or candidate may spend is restricted. Added to the confines of the limited period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters' freedom to know.

I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should not allow the basic freedom of expression to be sacrificed at the alter of infinitely

lesser fears and concerns. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.

In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3 majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No. 6646 now removes one of those safeguards.

The then Justice Fred Ruiz Castro stated:

What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the most basic political right of the citizens in a republican system, which is the right actively to participate in the establishment or administration of government. This right finds expression in multiple forms but it certainly embraces that right to influence the shape of policy and law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that the realization of the democratic ideal of self-government depends upon an informed and committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the public discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion — speech, press, assembly, organization — must be kept always open. It is in the context of the electoral process that these fundamental rights secured by the Constitution assume the highest social importance. (at page 904; Emphasis supplied)

I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's leaders. I vote to declare the challenged legislation unconstitutional.

CRUZ, J., dissenting:

It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject to the requirements of the police power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the challenged at is presumed to be valid in deference to the political departments. But not — and this represents a singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the presumption must be reversed in favor of the challenge.

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights include the equally important freedom of the press, the right of assembly and petition, the right to information on matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument for the ventilation of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The reason for this precaution is that freedom of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded by every citizen in the land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart to use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle his thoughts.

There is one especially significant way by which the citizen can express his views, and that is through the ballot. By the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the various elective offices in the government, from the highest position of President of the Philippines to that of the lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages conscientiously with only the public interest as their criterion and guide.

It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency where they filed their certificate of candidacy. 1

It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of mass communications, even for free. Employment of these facilities is allowed only through the respondent Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices to be filled in the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights, the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason is the language of Article III, Section 4, of the Constitution, which provides without qualification:

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.

This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with law and with due regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting them to certain places and hours and under specified conditions, in the interest of peace and security, public convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to be held in a private place or the campus of a government-owned or controlled educational institution or a freedom park.

All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as established by this Court in a long line of decisions. These requisites are:1) the interests of the public generally as distinguished from those of a particular class require the exercise of the police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be achieved and not unduly oppressive upon

individuals. 3 In simpler terms, the police measure, to be valid, must have a lawful objective and a lawful method of achieving it.

The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent disparity between the rich and the poor candidates by denying both of them access to the mass media and thus preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth to make up for his lack of competence.

But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may be employed even if it may not be the best among the suggested options. In my own view, the method here applied falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.

The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these advantages are allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the candidates or given to him for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of candidates running all over the country for the offices of President of the Philippines, Vice-President, senators, representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to resolve and its resolution may not be reviewed by the courts of justice. In the case of

the police power, however, it is required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.

But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties. Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is screened during wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5

I remind the Court of the doctrine announced in Bantam Books v. Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve financial transactions, for the element of the commercial does not remove them from the protection of the Constitution. 7

The law is no less oppressive on the candidates themselves who want and have the right to address the greatest number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the various candidates aspiring for public office, that they may be guided in the choice they must make when they cast they ballots. 8

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce. The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated

and imposed upon and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office — these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132 providing as follows:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various candidates in the same district, the said restriction on the freedom of expression appears too insignificant to create any appreciable dent on the individual's liberty of expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create any appreciable dent on the individual's liberty of expression."

What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea, unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:

Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

On the argument that the said persons could still express their views through the air time and newspaper space to be allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis supplied)

This decision was promulgated without a single dissent, even from the incumbent members then who are now sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in this decision upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight of the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political campaigns. In today's election competitions the success of one's candidacy rests to a great extent on the candidate's ability to match the financial and material resources of the other. Where a candidate is given limitless opportunity to take his campaign to areas of persuasion through the media, what is left of a winning chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by buying all print space in newspapers and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall spend only the same amount as the poor candidates can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper perspective, should not justify the

withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to paraphrase Justice Holmes, but a also for the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest dissemination of information bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume of victory.

For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.

PARAS, J., dissenting:

In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency, rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our freedom of expression. It is sad but I have no choice except to say that I dissent.

The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our freedom of expression and of our right of access to information. Freedom of expression in turn in includes among other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you violate the most valuable feature of the democratic way of life.

The majority says that the purpose of the political advertisement provision is to prevent those who have much money from completely overwhelming those who have little. This is gross errors because should the campaign for votes be carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It is alleged also that the candidate with money can purchase for himself several full page advertisements, making his poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by consenting to interviews and news reports about this campaign, which interviews and reports are, according to the majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:

Q In 19___, were you not the Secretary of _____________?

A Yes, I was.

Q When you were Secretary, did you not accomplish the following?

A (Interviewer then enumerated various accomplishments.)

Q Yes, I did.

There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is allowable. Is this not illogical — that is , if the ban stays?

And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And only those who had previously received public exposure by dint of government service or by prominence in the movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our country.

It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations. But I do not see how these limitations can make the disputed prohibition valid and constitutional.

I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently unconstitutional.

 

Separate Opinions

DAVIDE, JR., J., concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.

The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their absolutist moorings.

It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is not an absolute right.

Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only in exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1

The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from responsibility, but with responsibility.

I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:

(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:

The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. (emphasis supplied)

(2) Sec 1 of Article XIII (Social Justice and Human rights) which reads:

The congress shall give highiest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth andpolitical power for the common good. (emphasis supplied)

(3) Section 4 of Article IX-C which provides:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary.Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (emphasis supplied)

There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:

Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle ofsalus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number." 2

Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates made it.

Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice. With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false accusations.

Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure, R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes. The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:

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

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(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission

as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:

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

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

Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the area in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.

this Court ruled:

Against the background of such facilities accorded by the law for all candidates, rich and poor alike, and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration and the equality or chances among the candidates, the restriction on the freedom of expression of the candidate or any other individual

prescribed in par. F of Sec. 12 is so narrow as not to affect the substance and vitality of his freedom of expression itself.

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Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs. Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and of the denial of the equal protection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in these two cases, applying the less stringent balancing -of-interests criterion, are far outweighed by the all important substantive interests of the State to preserve the purity of the ballot and to render more meaningful and real the guarantee of the equal protection of the laws.

In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of Section 11(b) of R.A. No. 6646. Thus:

However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grantsissued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other

words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.

Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,et al.: 6

. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. The onerous task of proving otherwise is on the party seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an infringement of a constitutional provision, save in those cases where the challenged act is void on its face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7

The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and the executive as well.

For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such breach of the Constitution must be shown.

Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

 

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.

Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these petitions, states that:

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

xxx xxx xxx

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

Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and expression as guaranteed by Article III, Section 4 of the Constitution.

But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good.

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It constitutes an implied limitation on the Bill of Rights. According to Fernando, 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 and 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." Significantly, 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. 1

Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2

In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information granted by the government or any subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections." 4

In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C, Section 4 of the Constitution 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.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print space and air time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs. Jaime N. Ferrer, et al., G.R. NO. L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid

and constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize, if not approximate, equality of chances among the various candidates for elective public office.

Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for campaign or other political purposes, access to print space and air time would be given equally to all candidates. Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among all candidates. Hence, there would be in the final analysis, inequality.

Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the floodgates to corruption in public office because a winning candidate who overspends during the election period must necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly constitute a positive and effective measure against corruption in public office.

Petitioners also contend that the challenged provision is "violative of the people's right to information particularly about the conduct of public officials including the character and qualifications of candidates seeking public office."

I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their votes. 6

Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the same law afford a candidate several venues by which the can fully exercise his freedom of expression, including freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their qualifications and platforms.

As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the designated common poster areas to post, display and exhibit election propaganda to announce or further their candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate; publishing or distributing campaign literature or materials designed to support the election of any candidate; and directly or indirectly solicit votes, pledges or support for a candidate. 7

In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the means it employs to achieve such purpose are reasonable and even timely.

Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No. 6646.

GUTIERREZ, JR., J., dissenting:

I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of every citizen to be informed in every way possible about the qualifications and programs of those running for public office.

Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are and what they stand for.

With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the Presidency. Certainly, they do not know who are running for the Senate.

The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better qualified but lesser known.

I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the Constitutional Commission and distinguished mass communication personality (to name only three) are also running for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign period. A candidate to whom columnists and radio-television commentators owe past favors or who share their personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.

Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real function — insuring the integrity of the voting process and safeguarding the true results of the elections.

Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national and local positions is beyond my poor power to comprehend.

I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh, imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.

Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed during the limited period of the election campaign when information is most needed. Moreover, the mere thought that published materials are supervised by a government office is enough to turn the reader off. Only faithful followers who already know for whom they are voting will bother to read the statements of their chosen candidate in the Comelec corner of the newspapers.

The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The amount which a political party or candidate may spend is restricted. Added to the confines of the limited period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters' freedom to know.

I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should not allow the basic freedom of expression to be sacrificed at the alter of infinitely

lesser fears and concerns. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.

In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3 majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No. 6646 now removes one of those safeguards.

The then Justice Fred Ruiz Castro stated:

What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the most basic political right of the citizens in a republican system, which is the right actively to participate in the establishment or administration of government. This right finds expression in multiple forms but it certainly embraces that right to influence the shape of policy and law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that the realization of the democratic ideal of self-government depends upon an informed and committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the public discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion — speech, press, assembly, organization — must be kept always open. It is in the context of the electoral process that these fundamental rights secured by the Constitution assume the highest social importance. (at page 904; Emphasis supplied)

I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's leaders. I vote to declare the challenged legislation unconstitutional.

CRUZ, J., dissenting:

It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject to the requirements of the police power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the challenged at is presumed to be valid in deference to the political departments. But not — and this represents a singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the presumption must be reversed in favor of the challenge.

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights include the equally important freedom of the press, the right of assembly and petition, the right to information on matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument for the ventilation of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The reason for this precaution is that freedom of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded by every citizen in the land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart to use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle his thoughts.

There is one especially significant way by which the citizen can express his views, and that is through the ballot. By the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the various elective offices in the government, from the highest position of President of the Philippines to that of the lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages conscientiously with only the public interest as their criterion and guide.

It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency where they filed their certificate of candidacy. 1

It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of mass communications, even for free. Employment of these facilities is allowed only through the respondent Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices to be filled in the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights, the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason is the language of Article III, Section 4, of the Constitution, which provides without qualification:

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.

This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with law and with due regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting them to certain places and hours and under specified conditions, in the interest of peace and security, public convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to be held in a private place or the campus of a government-owned or controlled educational institution or a freedom park.

All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as established by this Court in a long line of decisions. These requisites are:1) the interests of the public generally as distinguished from those of a particular class require the exercise of the police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be achieved and not unduly oppressive upon

individuals. 3 In simpler terms, the police measure, to be valid, must have a lawful objective and a lawful method of achieving it.

The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent disparity between the rich and the poor candidates by denying both of them access to the mass media and thus preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth to make up for his lack of competence.

But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may be employed even if it may not be the best among the suggested options. In my own view, the method here applied falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.

The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these advantages are allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the candidates or given to him for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of candidates running all over the country for the offices of President of the Philippines, Vice-President, senators, representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to resolve and its resolution may not be reviewed by the courts of justice. In the case of

the police power, however, it is required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.

But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties. Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is screened during wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5

I remind the Court of the doctrine announced in Bantam Books v. Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve financial transactions, for the element of the commercial does not remove them from the protection of the Constitution. 7

The law is no less oppressive on the candidates themselves who want and have the right to address the greatest number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the various candidates aspiring for public office, that they may be guided in the choice they must make when they cast they ballots. 8

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce. The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated

and imposed upon and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office — these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132 providing as follows:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various candidates in the same district, the said restriction on the freedom of expression appears too insignificant to create any appreciable dent on the individual's liberty of expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create any appreciable dent on the individual's liberty of expression."

What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea, unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:

Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

On the argument that the said persons could still express their views through the air time and newspaper space to be allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis supplied)

This decision was promulgated without a single dissent, even from the incumbent members then who are now sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in this decision upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight of the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political campaigns. In today's election competitions the success of one's candidacy rests to a great extent on the candidate's ability to match the financial and material resources of the other. Where a candidate is given limitless opportunity to take his campaign to areas of persuasion through the media, what is left of a winning chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by buying all print space in newspapers and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall spend only the same amount as the poor candidates can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper perspective, should not justify the

withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to paraphrase Justice Holmes, but a also for the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest dissemination of information bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume of victory.

For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.

PARAS, J., dissenting:

In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency, rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our freedom of expression. It is sad but I have no choice except to say that I dissent.

The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our freedom of expression and of our right of access to information. Freedom of expression in turn in includes among other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you violate the most valuable feature of the democratic way of life.

The majority says that the purpose of the political advertisement provision is to prevent those who have much money from completely overwhelming those who have little. This is gross errors because should the campaign for votes be carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It is alleged also that the candidate with money can purchase for himself several full page advertisements, making his poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by consenting to interviews and news reports about this campaign, which interviews and reports are, according to the majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:

Q In 19___, were you not the Secretary of _____________?

A Yes, I was.

Q When you were Secretary, did you not accomplish the following?

A (Interviewer then enumerated various accomplishments.)

Q Yes, I did.

There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is allowable. Is this not illogical — that is , if the ban stays?

And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And only those who had previously received public exposure by dint of government service or by prominence in the movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our country.

It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations. But I do not see how these limitations can make the disputed prohibition valid and constitutional.

I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently unconstitutional.