cases for freedom of expression

1 Non V Dames Republic SUPREME Manila

of

the

Philippines COURT

EN BANC

G.R. No. 89317 May 20, 1990 ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA, JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners, vs. HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38, Daet, Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO ADEVA and by the chairman of the Board of Trustees, JUSTO LUKBAN, respondents. Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents.

CORTES, J.: Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence, may be refused readmission after the semester is over, as the contract between the student and the school is deemed terminated. Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not allowed to re-enroll by the school for the academic year 1988-1989 for leading or participating in student mass actions against the school in the preceding semester. The subject of the protests is not, however, made clear in the pleadings. Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but the trial court dismissed the petition in an order dated August 8, 1988; the dispositive portion of which reads:

WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on the point at issue in this case but the authority of the school regarding admission of students, save as a matter of compassionate equity — when any of the petitioners would, at the least, qualify for re-enrollment, this petition is hereby DISMISSED. SO ORDERED. [Rollo, p. 12-A.] A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this wise: Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there must be a better way of treating students and teachers than the manner ruled (not suggested) by the Supreme Court, the Termination of Contract at the end of the semester, that is. But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz, et al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No. 76353, May 2, 1988; that of the termination at the end of the semester, reason for the critical comments of Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling. Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny respondent's affirmative defenses that "they were given all the chances to air their grievances on February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented by Atty. Jose L. Lapak" and that on February 22, 1988, the date of the resumption of classes at Mabini College, petitioners continued their rally picketing, even though without any renewal permit, physically coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving a great majority of students of their right to be present in their classes. Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for re-enrollment with respondent college when they adopted, signed, and used its enrollment form for the first semester of school year 198889. Said form specifically states that: The Mabini College reserves the right to deny admission of students whose scholarship and attendance are unsatisfactory and to require withdrawal of students whose conduct discredits the institution and/or whose activities unduly disrupts or interfere with the efficient

operation of the college. Students, therefore, are required to behave in accord with the Mabini College code of conduct and discipline. In addition, for the same semester, petitioners duly signed pledges which among others uniformly reads: In consideration of my admission to the Mabini College and of my privileges as student of this institution, I hereby pledge/ promise under oath to abide and comply with all the rules and regulations laid down by competent authorities in the College Department or School in which I am enrolled. Specifically: xxx xxx xxx 3. I will respect my Alma Matter the Mabini College, which I represent and see to it that I conduct myself in such a manner that the college wig not be put to a bad light; xxx xxx xxx 9. I will not release false or unauthorized announcement which tend to cause confusion or disrupt the normal appreciation of the college. Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3, Rule 65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled, respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school in accordance with the Supreme Court rulings in the cases of Garcia vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975) and Tangonon vs.Pano, et al. (L-45157, June 27, 1985). WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED. SO ORDERED. [Rollo pp. 15-16.] Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction. The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to refer the case to the Court of Appeals for proper determination and disposition. The Court of Appeals ordered respondents to comment on the petition and set the application for issuance of a writ of preliminary mandatory injunction for hearing. After considering the

comment and hearing the injunction application, the Court of Appeals resolved on May 22, 1989 to certify the case back to the Supreme Court considering that only pure questions of law were raised. The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc on August 21, 1989 considering that the issues raised are jurisdictional. On September 14, 1989, the Court en bancaccepted the case and required respondents to comment. Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they filed a pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to Counter-Comment To this petitioners filed a "Rejoinder to Reply." The issues having been joined, the case was deemed submitted. At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz: It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for "one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers. Such being the case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100 SCRA 197). The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties.' (Henson vs. Intermediate Appellate Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.] In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred from re-enrolling after they led mass assemblies and put up barricades, but it added that "in the light of compassionate equity, students who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year when this petition was filed, should be allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice Sarmiento dissented from the majority opinion.

A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for reconsideration. The Court en banc, to which the case had been transferred, denied the motion for reconsideration in a Resolution dated September 29, 1989, but added as an obiter dictum: In conclusion, We wish to reiterate that while We value the right of students to complete their education in the school or university of their choice, and while We fully respect their right to resort to rallies and demonstrations for the redress of their grievances and as part of their freedom of speech and their right to assemble, still such rallies, demonstrations, and assemblies must always be conducted peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate license. The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the decision provoked several dissents on that issue. Although seven (7) members of the Court * disagreed with the Second Division's dismissal of the students petition, a definitive ruling on the issue could not have been made because no timely motion for reconsideration was filed by the students. (As stated above, the motion for reconsideration was filed by the dismissed teachers.) Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to bar the readmission or re-enrollment of students on the ground of termination of contract, shall be made in this case where the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5]. Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school refusing readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to readmit or re-enroll petitioners was decided upon and implemented by school authorities as a reaction to student mass actions directed against the school. Petitioners are students of respondent school who, after leading and participating in student protests, were denied readmission or re-enrollment for the next semester. This is a case that focuses on the right to speech and assembly as exercised by students vis-a-vis the right of school officials to discipline them. Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8, 1988;Rollo, pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the school's power to discipline them, to wit: Students should not be denied their constitutional and statutory right to education, and there is such denial when students are expelled or barred from enrollment for the exercise of their right to free speech and peaceable assembly and/or subjected to disciplinary action without abiding with the requirements of

due process. Also, it is understandable for student leaders to let loose extremely critical and, at times, vitriolic language against school authorities during a student rally. But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p. 13.] 1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate. Central to the democratic tradition which we cherish is the recognition and protection of the rights of free speech and assembly. Thus, our Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [Art. III.] This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973 Constitution, as amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907, the Court inPeople v. Apurado, 7 Phil. 422, upheld the right to speech and assembly to overturn a conviction for sedition. It said: Section 5 of the Act No. 292 is as follows: All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects are guilty of sedition: xxx xxx xxx 2. To prevent the Insular Government, or any provincial or municipal government or any public official, from freely exercising its or his duties or the due execution of any judicial or administrative order. But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people peaceably to assemble and petition the Government for redress of grievances" guaranteed by the express provisions of section 5 of "the Philippine Bill." xxx xxx xxx It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of

excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercise in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. [At pp. 424, 426.] That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is similarly available to students is well-settled in our jurisdiction. In the leading case of Malabanan v. Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice Fernando in an en bancdecision, declared: xxx xxx xxx 4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." While therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. [At pp. 367-368.] The facts in Malabanan are only too familiar in the genre of cases involving student mass actions: . . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta] University. They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated in such permit, not in the basketball court as therein stated but at the respond floor lobby. At such gathering they manifested in vehement and vigorous

language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were informed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamuswith damages against private respondents and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. . . . [At pp. 363-364.] The Court found the penalty imposed on the students too severe and reduced it to a one-week suspension. The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the Court. In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the Court reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. It enjoined the school and its officials from acts of surveillance, blacklisting, suspension and refusal to re-enroll. But the Court allowed the nonenrollment of students who clearly incurred marked academic deficiency, with the following caveat: xxx xxx xxx 4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set academic standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate against those students who exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate grievance by the

students thus prejudiced, their right to the equal protection clause being disregarded. [At p. 711.] In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a case arising from almost the same facts as those in Malabanan, the Court rejected "the infliction of the highly- disproportionate penalty of denial of enrollment and the consequent failure of senior students to graduate, if in the exercise of the cognate rights of free speech and peaceable assembly, improper conduct could be attributed to them. [At p. 98]. In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was directed to allow the petitioning students to re-enroll or otherwise continue with their respective courses, without prejudice to any disciplinary proceedings that may be conducted in connection with their participation in the protests that led to the stoppage of classes. 2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School. While the highest regard must be afforded the exercise of the rights to free speech and assembly, this should not be taken to mean that school authorities are virtually powerless to discipline students. This was made clear by the Court in Malabanan, when it echoed Tinker v. Des Moines Community School District, 393 US 503, 514: "But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." Thus, in Malabanan, the Court said: xxx xxx xxx 8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of the University. Moreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m." Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371]. But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due process. Thus:

. . . There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. [At pp. 706707]. Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan, "[i]f the concept of proportionality between the offense committed and sanction imposed is not followed, an element of arbitrariness intrudes." [At p. 371]. 3. Circumventing Established Doctrine. Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only because of political events that unfurled but also because of the constantly raging controversy over increases in tuition fees. But the over-eager hands of some school authorities were not effectively tied down by the ruling inMalabanan. Instead of suspending or expelling student leaders who fell into disfavor with school authorities, a new variation of the same stratagem was adopted by the latter: refusing the students readmission or re-enrollment on grounds not related to, their alleged misconduct of "illegal assembly" in leading or participating in student mass actions directed against the school. Thus, the spate of expulsions or exclusions due to "academic deficiency." 4. The Nature of the Contract Between a School and its Student. The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be repeatedly emphasized that the contract between the school and the student is not an ordinary contract. It is imbued with public interest, considering the high priority given by the Constitution to education and the grant to the State of supervisory and regulatory powers over all educational institutions [See Art. XIV, secs. 1-2, 4(1)]. Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for Private Schools, which provides that "[w]hen a student registers in a school, it is understood that he is enrolling . . . for the entire semester for collegiate courses," which the Court in Alcuaz construed as authority for schools to refuse enrollment to a student on the ground that his contract, which has a term of one semester, has already expired. The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely clarifies that a college student enrolls for the entire semester. It serves to protect schools wherein tuition fees are collected and paid on an installment basis, i.e. collection and

payment of the downpayment upon enrollment and the balance before examinations. Thus, even if a student does not complete the semester for which he was enrolled, but has stayed on for more than two weeks, he may be required to pay his tuition fees for the whole semester before he is given his credentials for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other Fees, which in its totality provides: 137. When a student registers in a school, it is understood that he is enrolling for the entire school year for elementary and secondary courses, and for the entire semester for collegiate courses. A student who transfers or otherwise withdraws, in writing, within two weeks after the beginning of classes and who has already paid the pertinent tuition and other school fees in full or for any length of time longer than one month may be charged ten per cent of the total amount due for the term if he withdraws within the first week of classes, or twenty per cent if within the second week of classes, regardless of whether or not he has actually attended classes. The student may be charged all the school fees in full if he withdraws anytime after the second week of classes. However, if the transfer or withdrawal is due to a justifiable reason, the student shall be charged the pertinent fees only up to and including the last month of attendance. Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only one semester, and that after that semester is over his re-enrollment is dependent solely on the sound discretion of the school. On the contrary, the Manual recognizes the right of the student to be enrolled in his course for the entire period he is expected to complete it. Thus, Paragraph 107 states: Every student has the right to enrol in any school, college or university upon meeting its specific requirement and reasonable regulation: Provided, that except in the case of academic delinquency and violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the entire period he is expected to complete his course without prejudice to his right to transfer. This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of 1982." Section 9 of this act provides: Sec. 9. Rights of Students in School. — In addition to other rights, and subject to the limitations prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights: xxx xxx xxx 2. The right to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation,

except in cases of academic deficiency, or violation of disciplinary regulations. xxx xxx xxx 5. Academic Freedom Not a Ground for Denying Students' Rights. Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school" [Rollo, p. 16]. To support this conclusion, he cited the cases of Garcia v. The Faculty Admission Committee, Loyola School of Theology, G.R. No. L-40779, November 28, 1975, 68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, where the Court emphasized the institutions' discretion on the admission and enrollment of students as a major component of the academic freedom guaranteed to institutions of higher learning. These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has a clear legal right to compel a seminary for the priesthood to admit her for theological studies leading to a degree. InTangonan, the issue was whether a nursing student, who was admitted on probation and who has failed in her nursing subjects, may compel her school to readmit her for enrollment. Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an institution of higher learning to set academic standards cannot be utilized to discriminate against students who exercise their constitutional rights to speech and assembly, for otherwise there win be a violation of their right to equal protection [At p. 711] 6. Capitol Medical Center and Licup. In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of San Carlos, G.R. No. 85839, October 19, 1989, both decided by the First Division of the Court. We find the issues raised and resolved in these two decisions dissimilar from the issues in the present case. In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the school because of problems emanating from a labor dispute between the school and its faculty. The Court ruled that the students had no clear legal right to demand the reopening of the school.

On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural due process before disciplinary action was taken against them. Thus, the Court stated: The Court finds no cogent basis for the protestations of petitioners that they were deprived of due process of law and that the investigation conducted was far from impartial and fair. On the contrary, what appear from the record is that the charges against petitioners were adequately established in an appropriate investigation. The imputation of bias and partiality is not supported by the record. ... Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to wit: While it is true that the students are entitled to the right to pursue their education, the USC as an educational institution is also entitled to pursue its academic freedom and in the process has the concommitant right to see to it that this freedom is not jeopardized. True, an institution of learning has a contractual obligation to afford its students a fair opportunity to complete the course they seek to pursue. However, when a student commits a serious breach of discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the court should not review the discretion of university authorities. (Emphasis supplied.) 7. The Instant Case. To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their answer filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing grades, to wit: a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form 137 which is a pre-requisite to his re- enrollment and to his continuing as a student of Mabini; b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4) subjects as well as no grades in two (2) subjects; c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades; d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already enrolled at Ago Foundation; e) Joselito Villalon has incomplete grades in nine (9) subjects;

f) Luis Santos has failed in one (1) subject; g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1) subject; h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more objects and has no grade in one (1) subject. [Rollo, p. 79.] Petitioners have not denied this, but have countered this allegation as follows: xxx xxx xxx (11) Petitioners were and are prepared to show, among others, that: a) Three of the 13 of them were graduating. (Admitted in the Answer.) b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only 8 of the 13 as with deficiencies.) c) Their breach of discipline, if any, was not serious. d) The improper conduct attributed to them was during the exercise of the cognate rights of free speech and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as shown even in the Answer.) e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted in the Answer; even Alcuaz required due process.) f) Respondents admit students with worse deficiencies — a clear case of discrimination against petitioners for their role in the student rally. (An equal protection question.) g) Respondent school is their choice institution near their places of residence which they can afford to pay for tertiary education, of which they have already lost one-and-a-half school-years — in itself punishment enough. [Rollo, p. 86]. Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes Banares, Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused reenrollment without just cause and, hence, should be allowed to re-enroll. On the other hand, it does not appear that the petitioners were afforded due process, in the manner expressed inGuzman, before they were refused re-enrollment. In fact, it would appear from the pleadings that the decision to refuse them re-enrollment because of failing grades was a mere afterthought. It is not denied that what incurred the ire of the school authorities

was the student mass actions conducted in February 1988 and which were led and/or participated in by petitioners. Certainly, excluding students because of failing grades when the cause for the action taken against them undeniably related to possible breaches of discipline not only is a denial of due process but also constitutes a violation of the basic tenets of fair play. Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex Magana, Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered marked academic deficiency within the context of the Court's decision in Villar. Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George (Jorge) Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures were incurred in only one semester or through the course of several semesters of study in the school. Neither are the academic standards of respondent school, from which we can gauge whether or not these students are academically deficient, alleged by respondents. Thus, while the prerogative of schools to set academic standards is recognized, we cannot affirm respondent school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information. With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such fact alone, if true, will not bar him from seeking readmission in respondent school. However, these should not be taken to mean that no disciplinary action could have been taken against petitioners for breach of discipline if the facts had so warranted. In line with the Court's ruling in Malabanan, petitioners could have been subjected to disciplinary proceedings in connection with the February 1988 mass actions. But the penalty that could have been imposed must be commensurate to the offense committed and, as set forth inGuzman, it must be imposed only after the requirements of procedural due process have been complied with. This is explicit from the Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon any student, except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated and only after due investigation shall have been conducted." But this matter of disciplinary proceedings and the imposition of administrative sanctions have become moot and academic. Petitioners, who have been refused readmission or reenrollment and who have been effectively excluded from respondent school for four (4) semesters, have already been more than sufficiently penalized for any breach of discipline they might have committed when they led and participated in the mass actions that, according to respondents, resulted in the disruption of classes. To still subject them to disciplinary proceedings would serve no useful purpose and would only further aggravate the strained

relations between petitioners and the officials of respondent school which necessarily resulted from the heated legal battle here, in the Court of Appeals and before the trial court. WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and February 24, 1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to allow the re- enrollment of petitioners, if they are still so minded, without prejudice to its taking the appropriate action as to petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and Daniel Torres, if it is shown by their records (Form 137) that they have failed to satisfy the school's prescribed academic standards. SO ORDERED. Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Paras, Gancayco, Bidin, Medialdea and Regalado, JJ., concur. Griño-Aquino, J., is on leave. ____________________________________________________

2. Chavez v Gonzales EN BANC

FRANCISCO CHAVEZ, Petitioner,

G.R. No. 168338 Present:

- versus -

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO, JJ.

x---------------------------------------------------------------------------------x

DECISION

PUNO, C.J.: A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS Promulgated: COMMISSION (NTC), Respondents. February 15, 2008

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1]Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts

1.

The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5] Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, “doctored” or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the President’s favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7]

2.

On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3.

On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9]

4.

On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape” of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, “I *have+ asked the NBI to conduct a tactical interrogation of all concerned.” [10]

5.

On June 11, 2005, the NTC issued this press release: [11]

NTC GIVES FAIR WARNING TO RADIO AND OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx

TELEVISION LAW AND

xxx xxx

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are herebywarned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that “all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false

information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition.” The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. 6.

On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.”

C. The Petition Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, “praying for the issuance of the writs ofcertiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.”[13] Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the public’s rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to file the petition. Among the arguments they raised as to the validity of the “fair warning” issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTC’s mandate to regulate the telecommunications industry. [17] It was also stressed that “most of the *television+ and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP.” [18] D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forward— neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint

statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.” [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, “the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure.” [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS

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.[24] Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.[27] In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. ABSTRACTION OF FREE SPEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. [31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held: …At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual selffulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. [35] Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more – to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40] The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser

in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an “unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.” Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.[43] The difference in treatment is expected because the relevant interests of one type of speech,e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as “fighting words” are not entitled to constitutional protection and may be penalized.[45] Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudence—whether here or abroad—will reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47] Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil

consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.” [50] As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51] E.3. IN FOCUS: FREEDOM OF THE PRESS Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52] 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 unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENTBASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55]

Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58] and “any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,” [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1)

a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60] or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowlytailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental 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 incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64] On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66] With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, “but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.”[67] As formulated, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”[68]

The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. [69] Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72] Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74] Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-basedrestrictions. The acts of respondents focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the “strict scrutiny” standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates

[i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its “pervasiveness” as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow “precisely the same approach that *U.S. courts+ have applied to other media,” nor go “so far as to demand that such regulations serve ‘compelling’ government interests,”[79] they are decided on whether the “governmental restriction” is narrowly tailored to further a substantial governmental interest,”[80] or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show that—as we have deviated with the American conception of the Bill of Rights[81]— we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints. Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that “[a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule…”[83] Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:[84] xxx

xxx

xxx

(3)

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their

humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5)

The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6)

The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. 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 be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7)

Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that “the test for limitations on freedom of expression continues to be the clear and present danger rule,” for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dansreferred to was narrowly restricted to what is otherwise deemed as “unprotected speech” (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was “somewhat lesser in scope than the freedom accorded to newspaper and print media,” it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85] In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown…..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89] This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved

broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.[93] Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression—in terms of diversity—comes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94] The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the

government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98] F. The Case At Bar Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a “complete” version and the other, an “altered” version. Thirdly, the evidence of the respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful

and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of

relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED. __________________________________________________________________

3.Phil Press Institute V comelec Republic SUPREME Manila

of

the

Philippines COURT

EN BANC

G.R. No. L-119694 May 22, 1995 PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by its President, Amado P. Macasaet and its Executive Director Ermin F. Garcia, Jr., petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION

FELICIANO, J.: The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of Resolution No. 2772 issued by respondent Commission on Elections ("Comelec") and its corresponding Comelec directive dated 22 March 1995, through a Petition for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of newspaper and magazine publishers. On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part: xxx xxx xxx Sec. 2. Comelec Space. — The Commission shall procure free print space of not less than one half (1/2) page in at least one newspaper of general circulation in every province or city for use as "Comelec Space" from March 6, 1995 in the case of candidates for senator and from March 21, 1995 until May 12, 1995. In the absence of said newspaper, "Comelec Space" shall be obtained from any magazine or periodical of said province or city. Sec. 3. Uses of Comelec Space. — "Comelec Space" shall be allocated by the Commission, free of charge, among all candidates within the area in which the newspaper, magazine or periodical is circulated to enable the candidates to make

known their qualifications, their stand on public issues and their platforms and programs of government. "Comelec Space" shall also be used by the Commission for dissemination of vital election information. Sec. 4. Allocation of Comelec Space. — (a) "Comelec Space" shall also be available to all candidatesduring the periods stated in Section 2 hereof. Its allocation shall be equal and impartial among all candidates for the same office. All candidates concerned shall be furnished a copy of the allocation of "Comelec Space" for their information, guidance and compliance. (b) Any candidate desiring to avail himself of "Comelec Space" from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor, in writing, to the Committee on Mass Media of the Commission. Any candidate desiring to avail himself of "Comelec Space" in newspapers or publications based in the provinces shall submit his application therefor, in writing, to the Provincial Election Supervisor concerned. Applications for availment of "Comelec Space" maybe filed at any time from the date of effectivity of this Resolution. (c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available"Comelec Space" among the candidates concerned by lottery of which said candidates shall be notified in advance, in writing, to be present personally or by representative to witness the lottery at the date, time and place specified in the notice. Any party objecting to the result of the lottery may appeal to the Commission. (d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor, as the case maybe, sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him, and the time within which he must submit the written material for publication in the "Comelec Space". xxx xxx xxx Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No newspaper or publication shall allow to be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party. However, unless the facts and circumstances clearly indicate otherwise, the Commission will respect the determination by the publisher and/or editors of the

newspapers or publications that the accounts or views published are significant, newsworthy and of public interest. (Emphasis supplied) Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E. Maambong sent identical letters, dated 22 March 1995, to various publishers of newspapers like the Business World, the Philippine Star, the Malaya and the Philippine Times Journal, all members of PPI. These letters read as follows: This is to advise you that pursuant to Resolution No. 2772 of the Commission on Elections, you aredirected to provide free print space of not less than one half (1/2) page for use as "Comelec Space"or similar to the print support which you have extended during the May 11, 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to make known their qualifications, their stand on public issues and their platforms and programs of government. We shall be informing the political parties and candidates to submit directly to you their pictures, biographical data, stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials. Please be reminded that the political parties/candidates may be accommodated in your publication any day upon receipt of their materials until May 6, 1995 which is the last day for campaigning. We trust you to extend your full support and cooperation in this regard. (Emphasis supplied) In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government, and any of its agencies, against the taking of private property for public use without just compensation. Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free "Comelec Space" and at the same time process raw data to make it camera-ready, constitute impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the 1987 Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of the constitutionally guaranteed freedom of speech, of the press and of expression. 1 On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995. The Court also required the respondent to file a Comment on the Petition.

The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No. 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution. According to the Solicitor General, the questioned Resolution merely established guidelines to be followed in connection with the procurement of "Comelec space," the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidate's utilization of the "Comelec space" procured. At the same time, however, the Solicitor General argues that even if the questioned Resolution and its implementing letter directives are viewed as mandatory, the same would nevertheless be valid as an exercise of the police power of the State. The Solicitor General also maintains that Section 8 of Resolution No. 2772 is a permissible exercise of the power of supervision or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair, impartial and credible election. 2 At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman, Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other Members of the Court, stated that Resolution No. 2772, particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI, were not intended to compel those members to supply Comelec with free print space. Chairman Pardo represented to the Court that Resolution and the related letter-directives were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections. Indeed, the Chairman stated that the Comelec would, that very afternoon, meet and adopt an appropriate amending or clarifying resolution, a certified true copy of which would forthwith be filed with the Court. On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this Resolution follows: NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the Omnibus Election Code, Republic Acts No. 6646 and 7166 and other election laws, the Commission on Elections RESOLVED to clarify Sections 2 and 8 of Res. No. 2772 as follows: 1. Section 2 of Res. No. 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution, whether administrative, civil or criminal, there being no sanction or penalty for violation of said Section provided for either in said Resolution or

in Section 90 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, on the grant of "Comelec space." 2. Section 8 of Res. No. 2772 shall not be construed to mean as constituting prior restraint on the part of publishers with respect to the printing or publication of materials in the news, opinion, features or other sections of their respective publications or other accounts or comments, it being clear from the last sentence of said Section 8 that the Commission shall, "unless the facts and circumstances clearly indicate otherwise . . . respect the determination by the publisher and/or editors of the newspapers or publications that the accounts or views published are significant, newsworthy and of public interest." This Resolution shall take effect upon approval. (Emphasis in the original) While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition as having become moot and academic, we consider it not inappropriate to pass upon the first constitutional issue raised in this case. Our hope is to put this issue to rest and prevent its resurrection. Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No. 2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its original form. Thus, we must point out that, as presently worded, and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letterdirectives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly susceptible of the reading that petitioner PPI has given it. That Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its implementing letters with some criminal or other sanction, does not by itself demonstrate that the Comelec's original intention was simply to solicit or request voluntary donations of print space from publishers. A written communication officially directing a print media company to supply free print space, dispatched by a government (here a constitutional) agency and signed by a member of the Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the company so addressed. That the agency may not be legally authorized to impose, or cause the imposition of, criminal or other sanctions for disregard of such directions, only aggravates the constitutional difficulties inhearing in the present situation. The enactment or addition of such sanctions by the legislative authority itself would be open to serious constitutional objection.

To compel print media companies to donate "Comelec-space" of the dimensions specified in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private personal property for public use or purposes. Section 2 failed to specify the intended frequency of such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the same period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use of private property. The monetary value of the compulsory "donation," measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed. The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use. The threshold requisites for a lawful taking of private property for public use need to be examined here: one is the necessity for the taking; another is the legal authority to effect the taking. The element of necessity for the taking has not been shown by respondent Comelec. It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes. Indeed, the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem. 3Similarly, it has not been suggested, let alone demonstrated, that Comelec has been granted the power of eminent domain either by the Constitution or by the legislative authority. A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown; it is not casually to be assumed. That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by the respondent Commission would be used not only for informing the public about the identities, qualifications and programs of government of candidates for elective office but also for "dissemination of vital election information" (including, presumably, circulars, regulations, notices, directives, etc. issued by Comelec). It seems to the Court a matter of judicial notice that government offices and agencies (including the Supreme Court) simply purchase print space, in the ordinary course of events, when their rules and regulations, circulars, notices and so forth need officially to be brought to the attention of the general public. The taking of private property for public use is, of course, authorized by the Constitution, but not without payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying compensation for "Comelec space" is precisely what is sought to be avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an assertion of authority to require newspaper publishers to "donate" free print space for Comelec purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as Section 1 of Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent newspaper and magazine publishers from voluntarily giving free print space to Comelec for the purposes contemplated in Resolution No.

2772. Section 2 of Resolution No. 2772 does not, however, provide a constitutional basis for compelling publishers, against their will, in the kind of factual context here present, to provide free print space for Comelec purposes. Section 2 does not constitute a valid exercise of the power of eminent domain. We would note that the ruling here laid down by the Court is entirely in line with the theory of democratic representative government. The economic costs of informing the general public about the qualifications and programs of those seeking elective office are most appropriately distributed as widely as possible throughout our society by the utilization of public funds, especially funds raised by taxation, rather than cast solely on one small sector of society, i.e., print media enterprises. The benefits which flow from a heightened level of information on and the awareness of the electoral process are commonly thought to be community-wide; the burdens should be allocated on the same basis. As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of the police power of the state. This argument was, however, made too casually to require prolonged consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of Comelec) to show that the police power — essentially a power of legislation — has been constitutionally delegated to respondent Commission. 4 Secondly, while private property may indeed be validly taken in the legitimate exercise of the police power of the state, there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power. 5 Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of existence of a national emergency or other imperious public necessity, indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in differing parts of the country, to take private property of newspaper or magazine publishers. No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a valid exercise of the police power of the State. We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again: Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No newspaper or publication shall allow to be printed or published in the news, opinion, features, or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party. However, unless the facts and circumstances clearly indicate otherwise, the Commission will respect the determination by the publisher and/or editors of the

newspapers or publications that the accounts or views published are significant, newsworthy and of public interest. It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case, Section 8 should be viewed in the context of our decision in National Press Club v. Commission on Elections. 6 There the Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which prohibits the sale or donation of print space and airtime for campaign or other political purposes, except to the Comelec. In doing so, the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b), from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters, broadcasters, editors, commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press: Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis ofSection 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 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 ortelevision 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 broadcaster 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 or 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 of Sanidad v. Commission on Elections. . . . 7 (Citations omitted; emphasis supplied) Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a guideline for implementation of the above-quoted distinction and doctrine in National Press Club an effort not blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful, does not add substantially to the utility of Section 8 of Resolution No. 2772. The distinction between paid political advertisements on the one hand and news reports,

commentaries and expressions of belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can realistically be given operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very specific sets of facts. At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action on the part of Comelec designed to enforce or implement Section 8. PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8. Put a little differently, the Court considers that the precise constitutional issue here sought to be raised — whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of the Comelec's power under Article IX, Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of — media of communication or information — [for the purpose of ensuring] equal opportunity, time and space, and the right of 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 — is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis mota thereof, the constitutionality of Section 8. Summarizing our conclusions: 1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22 March 1995 letter directives, purports to require print media enterprises to "donate" free print space to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and nullified. 2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and Prohibition must be dismissed for lack of an actual, justiciable case or controversy. WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part and Section 2 of Resolution No. 2772 in its present form and the related letter-directives dated 22 March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining Order is hereby MADE PERMANENT. The Petition is DISMISSED in part, to the extent it relates to Section 8 of Resolution No. 2772. No pronouncement as to costs. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Quiason, J., is on leave.

4. ABS-CBN broadcasting corp v comelec EN BANC [G.R. No. 133486. January 28, 2000] ABS-CBN BROADCASTING ELECTIONS, respondent.

CORPORATION, petitioner,

vs.

COMMISSION

ON

DECISION PANGANIBAN, J.: The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. The Case and the Facts Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the said Resolution, the poll body "RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same." The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."[2] The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey. On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem.

The Issues Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the x x x May 11 elections."[3] In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. The Court's Ruling The Petition[5] is meritorious. Procedural Issues: Mootness and Prematurity The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us. The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.[6] In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."[7] Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom. The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration. This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,[8] when the issue involves the principle of social justice or the protection of labor,[9] when the decision or resolution sought to be set aside is a

nullity,[10] or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[11] The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified. Main Issue: Validity of Conducting Exit Polls An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions." It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy." Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;[12] and relevant provisions of the Omnibus Election Code.[13] It submits that the constitutionally protected

freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press. Nature and Scope of Freedoms of Speech and of the Press The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. x x x [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."[14] Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change.[17] It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.[18] It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Limitations The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.[20] They are not immune to regulation by

the State in the exercise of its police power.[21] While the liberty to think is absolute, the power to express such thought in words and deeds has limitations. In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the validity of restrictions to such freedoms, as follows: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. x x x"[23] "The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent."[24] Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[32] A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.[34] Justification for a Restriction Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be

presumed; rather the presumption is against its validity.[35] And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,[36] so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown.[37] Thus: "A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."[38] Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly, stifle fundamental personal liberties, when the end can be more narrowly achieved.[39] The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage.[40] We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."[41] When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.[42] True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.[43] Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.[45] There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices. In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore,

the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll restriction.[47] The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse to be interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials.[48] Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections.[49] These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice. With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots

to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en bancon April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs. SO ORDERED. Davide, Jr., CJ., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon Jr., JJ., concur. Melo, J., joins separate opinion of J. Vitug. Vitug, J., see separate opinion. Kapunan, J., see dissenting opinion. Mendoza, J., joins separate opinion of J. Vitug. Pardo, J., no part.

5.fernando v CA Republic SUPREME Manila

of

the

Philippines COURT

THIRD DIVISION G.R. No. 159751

December 6, 2006

GAUDENCIO E. FERNANDO vs. COURT OF APPEALS, respondent.

and

RUDY

ESTORNINOS, petitioners,

DECISION

QUISUMBING, J.: This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582. The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the fine of P6,000 and cost of suit. The facts as culled from the records are as follows. Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures; b. Copies of IOU Penthouse Magazine with nude obscene pictures; c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows.3 On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows: That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of xrated VHS Tapes, lewd films depicting men and women having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or pornography to public view. Contrary to law.4 When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued. The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise denied. Thereafter, the accused waived their right to present evidence and instead submitted the case for decision.5 The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost. For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the crime charged. The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government. SO ORDERED.6 Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows, WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from isAFFIRMED IN TOTO. Costs against accused-appellants. SO ORDERED.7 Hence the instant petition assigning the following errors: I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid.8 Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction. Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10 At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved the case on the basis of prosecution’s evidence against the petitioners. As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily, that the confiscated materials are obscene must be proved. Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.17 Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity. In People v. Go Pin, the Court said: If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of

secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.20 People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said that: [A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.21 Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages. Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized thatKottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24 The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge’s sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned as follows: Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . . Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the youth. (Citations omitted) The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to good minds... In one (1) case the Supreme Court ruled: Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of the pictures, the display of such pictures for commercial

purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418). [B]ut this is not so in this case.30 Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary. Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity.32 The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials. Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he possessed were presumptively his.36 Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED. SO ORDERED. Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

6. US v Bustos Republic SUPREME Manila

of

the

Philippines COURT

EN BANC G.R. No. L-12592

March 8, 1918

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

STATES, plaintiff-appellee,

for

appellants.

MALCOLM, J.: This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of Pampanga. The appeal also submits the larger question of the attitude which the judiciary should take interpreting and enforcing the Libel Law in connection with the basic prerogatives of freedom of speech and press, and of assembly and petition. For a better understanding, the facts in the present appeal are the first narrated in the order of their occurrence, then certain suggestive aspects relative to the rights of freedom of speech and press and of assembly and petition are interpolated, then the facts are tested by these principles, and, finally, judgment is rendered. First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared and signed a petition to the Executive Secretary through the law office of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal. Crossfield and O'Brien submitted this petition and these affidavits with a complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four citizens apparently of considerable standing, including councilors and property owners (now the defendants), and contained the statements set out in the information as libelous. Briefly stated the specific charges against the justice of the peace were. 1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace, who first told her that he would draw up complaint for P5; afterwards

he said he would take P3 which she paid; also kept her in the house for four days as a servant and took from her two chickens and twelve "gandus;" 2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if he wished to win he must give him P50. Not having this amount, Sunga gave the justice nothing, and a few days later was informed that he had lost the case. Returning again to the office of the justice of the peace in order to appeal, the justice told him that he could still win if he would pay P50; 3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved. The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting investigation, proper action, and report. The justice of the peace was notified and denied the charges. The judge of first instance found the first count not proved and counts 2 and 3 established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby, recommended to the GovernorGeneral that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to the Executive Secretary." Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and reopened the hearing; documents were introduced, including a letter sent by the municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal reasons; and the judge of first instance ordered a suppression of the charges against Punsalan and acquitted him the same. Attorneys for complainants thereupon appealed to the Governor-General, but whether the papers were forwarded to the Governor-General as requested the record does not disclose. Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of the following information: That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at said time and place justice of the peace of Macabebe and Masantol of this province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing appear among other things the following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to be a public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and consequently unworthy of the office. That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less serious, but which the undersigned refrain from citing herein for the sake of brevity and in order not to bother too much the attention of your Honor and due to lack of sufficient proof to substantiate them. That should the higher authorities allow the said justice of the peace of this town to continue in his office, the protection of the rights and interests of its inhabitants will be illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of Rights, and justice in this town will not be administered in accordance with law. That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace, previous to this time, some respectable citizens of this town of Macabebe were compelled to present an administrative case against the said Roman Punsalan Serrano before the judge of first instance of Pampanga, in which case there were made against him various charges which were true and certain and of different characters. That after the said administrative case was over, the said justice of the peace, far from charging his bad and despicable conduct, which has roused the indignation of this town of Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock at the people and to show his mistaken valor and heroism.' All of this has been written and published by the accused with deliberate purpose of attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All contrary to law. It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge of first instance, the affidavits upon which based and concluding words, "To the Executive Secretary, through the office of Crossfield and O'Brien." The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in case of insolvency. New attorneys for the defense, coming into the case, after the handing

down of the decision, file on December 16, 1916, a motion for a new trial, the principal purpose of which was to retire the objection interposed by the then counsel for the defendants to the admission of Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion. All the defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the following assignments of error: 1. The court erred in overruling the motion of the convicted defendants for a new trial. 2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their counsel to the admission in evidence of the expediente administrativo out of which the accusation in this case arose. 3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused of the affidavits upon which the petition forming the basis of the libelous charge was based. 4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged. 5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the alleged libelous statements were true and free from malice. 6. The court erred in not acquitting the defendants. 7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes. We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this court. As a matter of fact counsel for defendants in the lower court made an improvident objection to the admission of the administrative proceedings on the ground that the signatures were not identified and that the same was immaterial, which objection was partially sustained by the trial court. Notwithstanding this curious situation by reason of which the attorney for the defense attempted to destroy through his objection the very foundation for the justification of his clients, we shall continue to consider all the proceedings as before us. Not indicating specifically the reason for this action, let the following be stated: The administrative proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than to pick out certain words which standing by themselves and unexplained are libelous and then by shutting off all knowledge of facts which would justify these words, to convict the accused. The records in question are attached

to the rollo, and either on the ground that the attorneys for the defense retired the objection to the introduction of the administrative proceedings by the prosecution, or that a new trial should have been had because under section 42 of the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the trial," or because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are essential to a determination of the case, or finally, because of our conceded right to take judicial notice of official action in administrative cases and of judicial proceedings supplemental to the basis action, we examine the record as before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this action, the Government can not explain for it was the prosecution which tried to incorporate Exhibit A into the record. With these facts pleading justification, before testing them by certain principles which make up the law of libel and slander, we feel warranted in seizing the opportunity to intrude an introductory and general discussion of freedom of speech and press and assembly and petition in the Philippine Islands. We conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to place these basic rights in their proper light. Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the Filipinos insist upon, said: " The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting Filipinos delegates. The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the wants of the Filipino people demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and assembly and petition. Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these Islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself. Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed

abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances." The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution. We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the Organic Law — of the Constitution — of the Philippine Islands. These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But included are the following: The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1) The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act

of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.) The right to assemble and petition is the necessary consequence of republican institutions and the complement of the part of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. Petition means that any person or group of persons can apply, without fear of penalty, to the appropriate branch or office of the government for a redress of grievances. The persons assembling and petitioning must, of course, assume responsibility for the charges made. Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege. The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.) Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J. A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.) A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated

by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege. In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.) A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.) Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press and of assembly and petition, having emphasized the point that our Libel Law as a statute must be construed with reference to the guaranties of our Organic Law, and having sketched the doctrine of privilege, we are in a position to test the facts of this case with these principles. It is true that the particular words set out in the information, if said of a private person, might well be considered libelous per se. The charges might also under certain conceivable conditions convict one of a libel of a government official. As a general rule words imputing to a judge or a justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But as suggested in the beginning we do not have present a simple case of direct and vicious accusations published in the press, but of charges predicated on affidavits made to the proper official and thus qualifiedly privileged. Express malice has not been proved by the prosecution. Further, although the charges are probably not true as to the justice of the peace, they were believed to be true by the petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in office existed is apparent. The ends and the motives of these citizens— to secure the removal from office of a person thought to be venal — were justifiable. In no way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous matter but on instances which not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of first instance to convince him of their seriousness. No undue publicity was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. And finally the charges and the petition were submitted through

reputable attorneys to the proper functionary, the Executive Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the Governor-General, that they may be removed by the Governor-General upon the recommendation of a Judge of First Instance, or on the Governor-General's own motion, and that at the time this action took place the Executive Bureau was the office through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject to removal by the sovereign, a communication to the Secretary of State was privileged.) The present facts are further essentially different from those established in other cases in which private individuals have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.) The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with the exception that there has been more publicity in the present instance and that the person to whom the charge was made had less jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild statements, with no basis in fact, made against reputable members of the judiciary, "to persons who could not furnish protection." Malicious and untrue communications are not privileged. A later case and one more directly in point to which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note alsoYancey vs. Commonwealth [1909], 122 So. W., 123.) We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out of constitutional guaranties in our bill of rights. Instead of punishing citizens for an honest endeavor to improve the public service, we should rather commend them for their good citizenship. The defendants and appellants are acquitted with the costs de officio. So ordered. Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

7.Miriam college foundation v CA FIRST DIVISION

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

MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY RENACIDO, respondents. DECISION KAPUNAN, J.: “Obscene,” “vulgar,” “indecent,” “gross,” “sexually explicit,” “injurious to young readers,” and devoid of all moral values.”[1] This was how some members of the Miriam College community allegedly described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College’s school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in the Chi-Rho included: xxx a story, clearly fiction, entitled ‘Kaskas’ written by one Gerald Garry Renacido xxx. Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo players who, one evening, after their performance went to see a bold show in a place called “Flirtation”. This was the way the author described the group’s exposure during that stage show: “Sige, sa Flirtation tayo. Happy hour na halos…. he! he! he! sambit ng kanilang bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang pinananabikan nuong makalawa pa, susog naman ang tropa. "x x x Pumasok ang unang mananayaw. Si ‘Red Raven’ ayon sa emcee. Nakasuot lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong. Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng “Goodbye” ng Air Supply. Dahandahan ang kanyang mga malalantik at mapang-akit na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar.

“Kaskas mo babe, sige … kaskas.” Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa harap niya’y nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong tela. Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng kanyang hita. Ang mga mata niya’y namagnet sa kayamanang ngayo’y halos isang pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-putol ang kanyang hininga nang kandungan ni ‘Red Raven’ ang kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito ng dahan-dahan… Pabilis ng pabilis.’ The author further described Mike’s responses to the dancer as follows (quoted in part): x x x Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang dibdib sa mukha nito. “Kaskas mo pa, kaskas mo pa!” Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring sagupaan ng libog. Ang alam lang niya ay nanlata na siya.” After the show the group went home in a car with the bokalista driving. A pedestrian happened to cross the street and the driver deliberately hit him with these words: “Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng sabog nilang drayber/bokalista.” The story ends (with their car about to hit a truck) in these words: … “Pare… trak!!! Put….!!!! Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of “Libog at iba pang tula.” In his foreword which Jerome Gomez entitled “Foreplay”, Jerome wrote: “Alam ko, nakakagulat ang aming pamagat.” Jerome then proceeded to write about previous reactions of readers to women-writers writing about matters erotic and to gay literature. He justified the Magazine’s erotic theme on the ground that many of the poems passed on to the editors were about “sekswalidad at iba’t ibang karanasan nito.” Nakakagulat ang tapang ng mga manunulat… tungkol sa maselang usaping ito xxx at sa isang institusyon pang katulad ng Miriam!” Mr. Gomez quoted from a poem entitled “Linggo” written by himself:

may mga palangganang nakatiwangwang – mga putang biyak na sa gitna, ‘di na puwedeng paglabhan, ‘di na maaaring pagbabaran…” Gomez stated that the poems in the magazine are not “garapal” and “sa mga tulang ito namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na “Libog at iba pang Tula.” He finished “Foreplay” with these words: “Dahil para saan pa ang libog kung hindi ilalabas?” The cover title in question appears to have been taken from a poem written by Relly Carpio of the same title. The poem dealt on a woman and a man who met each other, gazed at each other, went up close and “Naghalikan, Shockproof.” The poem contained a background drawing of a woman with her two mamaries and nipples exposed and with a man behind embracing her with the woman in a pose of passion-filled mien. Another poem entitled ‘Virgin Writes Erotic’ was about a man having fantasies in his sleep. The last verse said: “At zenith I pull it out and find myself alone in this fantasy.” Opposite the page where this poem appeared was a drawing of a man asleep and dreaming of a naked woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a hospital bed with one end rolled up). The woman’s right nipple can be seen clearly. Her thighs were stretched up with her knees akimbo on the bed. In the next page (page 29) one finds a poem entitled “Naisip ko Lang” by Belle Campanario. It was about a young student who has a love-selection problem: “…Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong bading.” The word “praning” as the court understands it, refers to a paranoid person; while the word “bading” refers to a sward or “bakla” or “badidang”. This poem also had an illustration behind it: of a young girl with large eyes and sloping hair cascading down her curves and holding a peeled banana whose top the illustrator shaded up with downward-slanting strokes. In the poem, the girl wanted to eat banana topped by peanut butter. In line with Jerome’s “Foreplay” and by the way it was drawn that banana with peanut butter top was meant more likely than not, to evoke a spiritedly mundane, mental reaction from a young audience. Another poem entitled “Malas ang Tatlo” by an unknown author went like this: “Na picture mo na ba no’ng magkatabi tayong dalawa sa pantatluhang sofa—

ikaw, the legitimate asawa at ako, biro mo, ang kerida? tapos, tumabi siya, shit! kumpleto na: ikaw, ako at siya kulang na lang, kamera.” A poem “Sa Gilid ng Itim” by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox (lobo) yearning for “karneng sariwa, karneng bata, karneng may kalambutan…. isang bahid ng dugong dalaga, maamo’t malasa, ipahid sa mga labing sakim sa romansa’ and ended with ‘hinog na para himukin bungang bibiyakin.”[2] Following the publication of the paper and the magazine, the members of the editorial board,[3] and Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4 November 1994 stated: This is to inform you that the letters of complain filed against you by members of the Miriam Community and a concerned Ateneo grade five student have been forwarded to the Discipline Committee for inquiry and investigation. Please find enclosed complaints. As expressed in their complaints you have violated regulations in the student handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37. You are required to submit a written statement in answer to the charge/s on or before the initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at the DSA Conference Room.[4] None of the students submitted their respective answers. They instead requested Dr. Sevilla to transfer the case to the Regional Office of the Department of Education, Culture and Sports (DECS) which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the case.[5] In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written answers. In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter[6] to the Discipline Committee reiterating his clients’ position that said Committee had no jurisdiction over them. According to Atty. Valmonte, the Committee was “trying to impose discipline on

[his clients] on account of their having written articles and poems in their capacity as campus journalists.” Hence, he argued that “what applies is Republic Act No. 7079 *The Campus Journalism Act+ and its implementing rules and regulations.” He also questioned the partiality of the members of said Committee who allegedly “had already articulated their position” against his clients. The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board, after a review of the Discipline Committee’s report, imposed disciplinary sanctions upon the students, thus: 1. Jasper Briones

Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th year student;

2. Daphne Cowper

suspension up to (summer) March, 1995;

3. Imelda Hilario

suspension for two (2) weeks to expire on February 2, 1995;

4. Deborah Ligon

suspension up to May, 1995. Miss Ligon is a 4th year student and could graduate as summa cum laude;

5. Elizabeth Valdezco 6. Camille Portugal 7. Joel Tan

suspension up to (summer) March, 1995;

graduation privileges withheld, including diploma. She is an Octoberian; suspension for two (2) weeks to expire on February 2, 1995;

8. Gerald Gary Renacido Expelled and given transfer credentials. He is a 2nd year student. He wrote the fiction story “Kaskas”; 9. Relly Carpio

Dismissed and given transfer credentials. He is in 3rd year and wrote the poem “Libog”;

10. Jerome Gomez

Dismissed and given transfer credentials. He is in 3rd year. He wrote the foreword “Foreplay” to the questioned Anthology of Poems; and

11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year student and art editor of Chi-Rho.[7] The above students thus filed a petition for prohibition and certiorari with preliminary injunction/restraining order before the Regional Trial Court of Quezon City questioning the jurisdiction of the Discipline Board of Miriam College over them. On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs’ prayer for a Temporary Restraining Order. It held: There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes school Administrators from exercising jurisdiction over cases of the nature involved in the instant

petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over disciplinary cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it merely prescribes for purposes of internal administration which DECS officer or body shall hear cases arising from R.A. 7079 if and when brought to it for resolution. The said order never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.[8] The students thereafter filed a “Supplemental Petition and Motion for Reconsideration.” The College followed with its Answer. Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary injunction. ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of preliminary injunction issue enjoining the defendants, including the officers and members of the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and the officers and members of the Security Department, Division, or Security Agency securing the premises and campus of Miriam College Foundation, Inc. from: 1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing the defendants to impose lesser sanctions on aforementioned plaintiffs; and 2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of them) from taking tests or exams and entering the Miriam campus for such purpose as extended to all students of Miriam College Foundation, Inc.; neither should their respective course or subject teachers or professors withhold their grades, including final grades, if and when they meet the requirements similarly prescribed for all other students, this current 2nd Semester of 1994-95. The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall not be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have the right to receive her diploma, but defendants are not hereby prevented from refusing her the privilege of walking on the graduation stage so as to prevent any likely public tumults. The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos (P4,000.00) each. SO ORDERED.[9] Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995, the RTC dismissed the petition, thus:

4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch as both parties do not want this court to assume jurisdiction here then this court will not be more popish than the Pope and in fact is glad that it will have one more case out of its docket. ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties going to another forum. All orders heretofore issued here are hereby recalled and set aside. SO ORDERED.[10] The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this Court through a petition for certiorari and prohibition of preliminary injunction/restraining order[11] questioning the Orders of the RTC dated 10 and 24 February 1995. On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for disposition.[12] On 19 May 1995, the CA issued a resolution stating: The respondents are hereby required to file comment on the instant petition and to show cause why no writ of preliminary injunction should be issued, within ten (10) days from notice hereof, and the petitioners may file reply thereto within five (5) days from receipt of former’s comment. In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995. SO ORDERED.[13] In its Decision dated 26 September 1996, respondent court granted the students’ petition. The CA declared the RTC Order dated 22 February 1995, as well as the students’ suspension and dismissal, void. Hence, this petition by Miriam College. We limit our decision to the resolution of the following issues: (1)

The alleged moot character of the case.

(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students. (3)

The power of petitioner to suspend or dismiss respondent students.

(4)

The jurisdiction of petitioner over the complaints against the students.

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

Petitioner asserts the Court of Appeals found the case moot thus: While this petition may be considered moot and academic since more than one year have passed since May 19, 1995 when this court issued a temporary restraining order enjoining respondents from enforcing the dismissal and suspension on petitioners….[14] Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded with the adjudication of the merits of the case. We find that the case is not moot. It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a preliminary injunction. The records do not show that the CA ever issued a preliminary injunction. Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to perform to refrain from performing a particular act or acts.[15] As an extraordinary remedy, injunction is calculated to preserve or maintain the status quo of things and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard.[16] A preliminary injunction persists until it is dissolved or until the termination of the action without the court issuing a final injunction. The basic purpose of restraining order, on the other hand, is to preserve the status quo until the hearing of the application for preliminary injunction.[17] Under the former §5, Rule 58 of the Rules of Court, as amended by §5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining order with a limited life of twenty days from date of issue.[18] If before the expiration of the 20-day period the application for preliminary injunction is denied, the temporary order would thereby be deemed automatically vacated. If no action is taken by the judge on the application for preliminary injunction within the said 20 days, the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary.[19] In the instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically expired under the aforesaid provision of the Rules of Court.[20] This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA issued its TRO dated 19 May 1995.[21] By that time respondents Elizabeth Valdezco and Joel Tan had already served their respective suspensions. The TRO was

applicable only to respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom were dismissed, and respondent Camille Portugal whose graduation privileges were withheld. The TRO, however, lost its effectivity upon the lapse of the twenty days. It can hardly be said that in that short span of time, these students had already graduated as to render the case moot. Either the CA was of the notion that its TRO was effective throughout the pendency of the case or that what is issued was a preliminary injunction. In either case, it was error on the part of the CA to assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was complied with. A case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.[22] To determine the moot character of a question before it, the appellate court may receive proof or take notice of facts appearing outside the record. [23] In the absence of such proof or notice of facts, the Court of Appeals should not have assumed that its TRO was enforced, and that the case was rendered moot by the mere lapse of time. Indeed, private respondents in their Comment herein[24] deny that the case has become moot since Miriam refused them readmission in violation of the TRO. This fact is unwittingly conceded by Miriam itself when, to counter this allegation by the students, it says that private respondents never sought readmission after the restraining order was issued.[25] In truth, Miriam relied on legal technicalities to subvert the clear intent of said order, which states: In order not to render ineffectual the instant petition, let a Temporary Restraining Order be issued enjoining the public respondents from enforcing letters of dismissal/suspension dated January 19, 1995. Petitioner says that the above order is “absurd” since the order “incorrectly directs public respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not to dismiss or suspend the students.”[26] We do not agree. Padua vs. Robles[27]lays down the rules in construing judgments. We find these rules to be applicable to court orders as well: [T]he sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In construing a judgment, its legal effects including such effects that necessarily follow because of legal implications, rather than the language used, govern. Also, its meaning, operation, and consequences must be ascertained like any other written instrument. Thus, a judgment rests on the intent of the Court as gathered from every part thereof, including the situation to which it applies and attendant circumstances. (Underscoring supplied.) Tested by such standards, we find that the order was indeed intended for private respondents (in the appellate court) Miriam College, et al., and not public respondent Judge. In dismissing the case, the trial judge recalled and set aside all orders it had

previously issued, including the writ of preliminary injunction. In doing so, the trial court allowed the dismissal and suspension of the students to remain in force. Thus, it would indeed be absurd to construe the order as being directed to the RTC. Obviously, the TRO was intended for Miriam College. True, respondent-students should have asked for a clarification of the above order. They did not. Nevertheless, if Miriam College found the order “absurd,” then it should have sought a clarification itself so the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took advantage of the supposed vagueness of the order and used the same to justify its refusal to readmit the students. As Miriam never readmitted the students, the CA’s ruling that the case is moot has no basis. How then can Miriam argue in good faith that the case had become moot when it knew all along that the facts on which the purported moot character of the case were based did not exist? Obviously, Miriam is clutching to the CA’s wrongful assumption that the TRO it issued was enforced to justify the reversal of the CA’s decision. Accordingly, we hold that the case is not moot, Miriam’s pretensions to the contrary notwithstanding. II

“To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus journalism as a means of strengthening ethical values, encouraging critical and creative thinking, and developing moral character and personal discipline of the Filipino youth,”[28] Congress enacted in 1991 Republic Act No. 7079. Entitled “AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER PURPOSES,”[29] the law contains provisions for the selection of the editorial board[30] and publication adviser,[31] the funding of the school publication,[32] and the grant of exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor’s or gift tax.[33] Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its members. Thus, the second paragraph of Section 4 states that “(o)nce the publication is established, its editorial board shall freely determine its editorial policies and manage the publication’s funds.” Section 7, in particular, provides: A member of the publication staff must maintain his or her status as student in order to retain membership in the publication staff. A student shall not be expelled or suspended solely on the basis of articles he or she has written, or on the basis of the performance of his or her duties in the student publication.

Section 9 of the law mandates the DECS to “promulgate the rules and regulations necessary for the effective implementation of this Act.”[34] Pursuant to said authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that: GENERAL PROVISIONS

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought before it. The DECS regional office shall have the original jurisdiction over cases as a result of the decisions, actions and policies of the editorial board of a school within its area of administrative responsibility. It shall conduct investigations and hearings on the these cases within fifteen (15) days after the completion of the resolution of each case. (Underscoring supplied.) The latter two provisions of law appear to be decisive of the present case. It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as grounds therefor, that: I DEFENDANT‘S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.[35] II DEFENDANT SCHOOL’S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS.[36] Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam Disciplinary Board, which would thereby deprive them of due process. This contention, if true, would constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court. These were the same grounds invoked by the students in their refusal to answer the charges against them. The issues were thus limited to the question of jurisdiction – a question purely legal in nature and well within the

competence and the jurisdiction of the trial court, not the DECS Regional Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global Communications, Inc. vs. Relova.[37] Absent such clarity as to the scope and coverage of its franchise, a legal question arises which is more appropriate for the judiciary than for an administrative agency to resolve. The doctrine of primary jurisdiction calls for application when there is such competence to act on the part of an administrative body. Petitioner assumes that such is the case. That is to beg the question. There is merit, therefore, to the approach taken by private respondents to seek judicial remedy as to whether or not the legislative franchise could be so interpreted as to enable the National Telecommunications Commission to act on the matter. A jurisdictional question thus arises and calls for an answer. However, when Miriam College in its motion for reconsideration contended that the DECS Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope," dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have one more case out of its docket." We remind the trial court that a court having jurisdiction of a case has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to it.[38] Accordingly, the trial court should not have dismissed the petition without settling the issues presented before it. III

Before we address the question of which between the DECS Regional Office and Miriam College has jurisdiction over the complaints against the students, we first delve into the power of either to impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College had the power to impose sanctions upon the students. Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the expulsion or suspension of a student solely on the basis of articles he or she has written. A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for

some restraint.[39] The essential freedoms subsumed in the term "academic freedom" encompasses the freedom to determine for itself on academic grounds: (1)

Who may teach,

(2)

What may be taught,

(3)

How it shall be taught, and

(4)

Who may be admitted to study.[40]

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

No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found guilty by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do. More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitution.[45] Tracing the development of academic freedom, the Court continued: Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution. "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right … extends as well to parents… as parents under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools." Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." Going a step further, the establishment of the rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to learn under the rules laid down by the school. xxx. It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the development, or flowering if you will, of the total man. In essence, education must ultimately be religious -- not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is 'an education which inculcates duty and reverence.' It appears that the particular brand of

religious education offered by the Ateneo de Manila University has been lost on the respondent students. Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them. Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly educational environment will be seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body." Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds.[46] B.

Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational institution: The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions. As may be gleaned from the above provision, such power to regulate is subject to the requirement of reasonableness. Moreover, the Constitution allows merely the regulation andsupervision of educational institutions, not the deprivation of their rights. C.

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

Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force to this Fortas opinion. "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only inevitable part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.[49] The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,[50] Arreza vs. Gregorio Araneta University Foundation,[51] and Non vs. Dames II.[52] The right of the students to free speech in school premises, however, is not absolute. The right to free speech must always be applied in light of the special characteristics of the school environment.[53] Thus, while we upheld the right of the students to free expression in these cases, we did not rule out disciplinary action by the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior which materially disrupts classwork or involves substantial disorder or invasion of the rights of others."[54] Thus, inMalabanan, we held: 6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of view opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem ('isang malaking suliranin.") They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ('isa na naman sakit sa ulo ng ating mga magulang.") If in the course of such demonstration, with an enthusiastic audience goading them on, utterances extremely critical at times, even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate,

even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth. They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."[55] It is in the light of this standard that we read Section 7 of the Campus Journalism Act. Provisions of law should be construed in harmony with those of the Constitution; acts of the legislature should be construed, wherever possible, in a manner that would avoid their conflicting with the fundamental law.[56] A statute should not be given a broad construction if its validity can be saved by a narrower one.[57] Thus, Section 7 should be read in a manner as not to infringe upon the school's right to discipline its students. At the same time, however, we should not construe said provision as to unduly restrict the right of the students to free speech. Consistent with jurisprudence, we read Section 7 of the Campus Journalism Act to mean that the school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when such articles materially disrupt class work or involve substantial disorder or invasion of the rights of others. IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against respondent students becomes self-evident. The power of the school to investigate is an adjunct of its power to suspend or expel. It is a necessary corollary to the enforcement of rules and regulations and the maintenance of a safe and orderly educational environment conducive to learning.[58] That power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by the Constitution. We therefore rule that Miriam College has the authority to hear and decide the cases filed against respondent students. WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has long lapsed. SO ORDERED. Davide, Jr., C.J., (Chairman), Pardo, and Ynares-Santiago, JJ., concur. Puno, J., no part, knows some parties.

8. Cruz v CA EN BANC

[G.R. No. 126183. March 25, 1999]

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA PIZARRO, petitioners vs., COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

[G.R. No. 129221. March 25, 1999]

ROLANDO ALURA, CLARA ALVAREZ, PORFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DULDULAO, LEA POCONG, ENRICO REYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILLA CASTILLO, ANACLETA CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCELINA, CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESITA LAURENTE, CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents. DECISION

BELLOSILLO, J.: These consolidated petitions[1] are among several petitions filed with this Court arising from the much-publicized public school teachers' mass actions of September/October 1990. Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D. Cariñio of the Department of Education, Culture and Sports (DECS), in decisions issued by him which uniformly read This is a motu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports against the following public school teachers x x x x based on the report submitted by their respective school principals wherein it was alleged that the above-named teachers participated in the mass action/illegal strike on Sept. 19-21, 1990 and subsequently defied the return-to-work order dated September 17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines. Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint, respondents failed to submit the required answer within the given time up to the present, and despite the denial of their request for extension of 30 days within which to submit their answers dated September 25, 1990 filed by their counsel, Atty. Gregorio Fabros, in a letter of this Office to him dated September 28, 1990, respondents failed to submit the same, which failure, is considered a waiver on their part of their right to answer the charges and to controvert the same. Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged. In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the Application of Penalty in Administrative Cases, the herein respondents are dismissed from Office effective immediately. The decisions dismissing petitioners were immediately implemented. Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC found petitioners guilty of “conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon them the reduced penalty of six (6) months' suspension. However, in view of the length of time that petitioners had been out of the service by reason of the immediate implementation

of the dismissal orders of Secretary Cariño, the CSC likewise ordered petitioners' automatic reinstatement in the service without back wages. Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. Nos. 111998,[2] 114435-5506,[3] and 11631219,[4] which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95,[5] and there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively. On 29 November 1995 the Special Third Division of the Court of Appeals[6] rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit.[7] The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service were based on reasonable and justifiable grounds; that petitioners' perceived grievances were no excuse for them not to conduct classes and defy the return-to-work order issued by their superiors; that the immediate execution of the dismissal orders of Secretary Cariño was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807,[8] and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E.0. No. 292. Their motion for reconsideration having been denied on 15 May 1997,[9] petitioners then appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221. Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals[10] rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit.[11] The appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1990 mass actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals cited Manila Public School Teachers Association v. Laguio, Jr.[12] wherein this Court ruled that the public school teachers' mass actions of September/October 1990 were "to all intents and purposes a strike x x x constitut[ing] a concealed and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention that Secretary Cariño's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that petitioners actually joined the mass actions based on the report of absences submitted by their respective school principals. Their motion for reconsideration having been denied in the resolution of 20 August 1996,[13] petitioners then filed a petition for review on certiorari with this Court on 1 October 1996, docketed as G.R. No, 126183. By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as they did common questions of fact and law. Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their grievances. Moreover petitioners insist that the

mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6) months' suspension eventually meted them. The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.[14] Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled.[15] As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v. Laguio Jr.[16] and Alliance of Concerned Teachers v. Hon. Isidro Cariño[17] that the mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons -- to protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching hours." In Rolando Gan v. Civil Service Commission,[18] we denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they had been ordered to do so. Had the teachers availed of their free time - recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or even the Supreme Court - could have held them liable for their participation in the mass actions.[19] With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc.,[20] invoked by petitioners, we have likewise already ruled in the Rolando Gan case[21] that the PBM ruling - that the rights of free expression and assembly could not be lightly disregarded as they occupy a preferred position in the hierarchy of civil liberties - was not applicable to defend the validity of the 1990 mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property rights while the higher consideration involved in the case of the striking teachers was the education of the

youth which must, at the very least, be equated with the freedom of assembly and to petition the government for redress of grievances.[22] We affirmed the foregoing rulings in Bagana v. Court of Appeals[23] by denying a similar petition filed by another group of teachers who participated in the 1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court of Appeals[24] we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" did not erase the true nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable response to the teachers' economic grievances. We again stressed that the teachers were penalized not because they exercised their right to peaceably assemble but because of the manner by which such right was exercised, i.e., going on unauthorized and unilateral absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers were responsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately appointed by Secretary Cariño. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact that the prompt remedial action taken by Secretary Cariño might have partially deflected the adverse effects of the mass protests did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason why such prompt remedial action became necessary. Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service. As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when they were not allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cariño while awaiting resolution of their appeals by the MSPB and CSC. The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary Cariño were commuted by the CSC to six (6) months' suspension is already settled. In Bangalisan v. Court of Appeals[25] we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan were also teachers who participated in the 1990 mass actions for which they were dismissed by Secretary Cariño but ordered merely suspended for six (6) months by the Civil Service Commission. On a plea that the immediate implementation of the dismissal orders of Secretary Cariño was unjustified, thus warranting an award of back wages the Court said -

As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. And since it was already the final dismissal orders of Secretary Cariño which were being carried out, immediate implementation even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987.[26] Hence, being legal, the immediate execution of the dismissal orders could not be considered unjustified. The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of Baguio[27] and Bautista v. Peralta[28] being cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to have been exonerated from the charges levelled against them by Secretary Cariño from the mere fact that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It must be remembered that Secretary Cariño charged petitioners with grave misconduct, gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best interest of the service. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. Having been found to have actually participated in the illegal mass actions although found answerable for a lesser offense, petitioners could not be considered as fully innocent of the charges against them.[29] Being found liable for a lesser offense is not equivalent to exoneration.[30] Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of his grandmother. In Jacinto v. Court of Appeals[31] we again denied the claim for back wages of teachers found to have given cause for their suspension, i.e., their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto who was absent because of illness. Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause for their supension, their prayer for back wages must be denied conformably with settled rulings of this Court.

WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED. No costs. SO ORDERED. Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

9. Banglasin v CA EN BANC

[G.R. No. 124678. July 31, 1997]

DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON GOMEZ, CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO, WILFREDO MERCADO, LIGAYA MONTANCES and CORAZON PAGPAGUITAN, petitioners, vs. HON. COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents. DECISION REGALADO, J.: This is an appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. SP No. 38316, which affirmed several resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service, as well as its resolution of April 12, 1996 denying petitioners’ motion for reconsideration.[1] Petitioners, except Rodolfo Mariano, were among the 800 public school teachers who staged “mass actions” on September 17 to 19, 1990 to dramatize their grievances concerning, in the main, the alleged failure of the public authorities to implement in a just and correct manner certain laws and measures intended for their material benefit. On September 17, 1990, the Secretary of the Department of Education, Culture and Sports (DECS) issued a Return-to-Work Order. Petitioners failed to comply with said order, hence they were charged by the Secretary with “grave misconduct; gross neglect of duty; gross violation of Civil Service law, rules and regulations and reasonable office regulations; refusal to perform official duty; gross insubordination; conduct prejudicial to the best interest of the service; and absence without official leave in violation of PD 807, otherwise known as the Civil Service Decree of the Philippines.” They were simultaneously placed under preventive suspension. Despite due notice, petitioners failed to submit their answer to the complaint. On October 30, 1990, the DECS Secretary rendered a decision finding petitioners guilty as charged and dismissing them from the service effective immediately. Acting on the motions for reconsideration filed by petitioners Bangalisan, Gregorio, Cabalfin, Mercado, Montances and Pagpaguitan, the Secretary subsequently modified the penalty of dismissal to suspension for nine months without pay.

Petitioner Gomez likewise moved for reconsideration with the DECS and then appealed to the Merit Systems Protection Board (MSPB). The other petitioners also filed individual appeals to the MSPB, but all of their appeals were dismissed for lack of merit. Not satisfied with the aforestated adjudication of their respective cases, petitioners appealed to the Civil Service Commission (CSC). The appeals of petitioners Cabalfin, Montances and Pagpaguitan were dismissed for having been filed out of time. On motion for reconsideration, however, the CSC decided to rule on the merits of their appeal in the interest of justice. Thereafter, the CSC issued Resolution No. 94-1765 finding Cabalfin guilty of conduct prejudicial to the best interest of the service and imposing on him a penalty of six months suspension without pay. The CSC also issued Resolutions Nos. 94-2806 and 94-2384 affirming the penalty of nine months suspension without pay theretofore imposed on petitioners Montances and Pagpaguitan. With respect to the appeals of the other petitioners, the CSC also found them guilty of conduct prejudicial to the best interest of the service. It, however, modified the penalty of nine months suspension previously meted to them to six months suspension with automatic reinstatement in the service but without payment of back wages. All the petitioners moved for reconsideration of the CSC resolutions but these were all denied,[2] except that of petitioner Rodolfo Mariano who was found guilty only of a violation of reasonable office rules and regulations because of his failure to inform the school of his intended absence and to file an application for leave therefor. This petitioner was accordingly given only a reprimand.[3] Petitioners then filed a petition for certiorari with this Court but, on August 29, 1995, their petition was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95.[4] On October 20, 1995, the Court of Appeals dismissed the petition for lack of merit.[5] Petitioners’ motion for reconsideration was also denied by respondent court,[6] hence the instant petition alleging that the Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the CSC (1) that penalized petitioners whose only offense was to exercise their constitutional right to peaceably assemble and petition the government for redress of grievances; (2) that penalized petitioner Mariano even after respondent commission found out that the specific basis of the charges that former Secretary Cariño filed against him was a falsehood; and (3) that denied petitioners their right to back wages covering the period when they were illegally not allowed to teach.[7] It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public

services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike.[8] Petitioners contend, however, that they were not on strike but were merely exercising their constitutional right peaceably to assemble and petition the government for redress of grievances. We find such pretension devoid of merit. The issue of whether or not the mass action launched by the public school teachers during the period from September up to the first half of October, 1990 was a strike has been decided by this Court in a resolution, dated December 18, 1990, in the herein cited case of Manila Public School Teachers Association, et al. vs. Laguio, Jr., supra. It was there held “that from the pleaded and admitted facts, these ‘mass actions’ were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for essentially economic reasons.” It is an undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling.[9] The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose.[10] Further, herein petitioners, except Mariano, are being penalized not because they exercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthorized and unilateral absences which produced adverse effects upon their students for whose education they are responsible. The actuations of petitioners definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations. As aptly stated by the Solicitor General, “It is not the exercise by the petitioners of their constitutional right to peaceably assemble that was punished, but the manner in which they exercised such right which resulted in the temporary stoppage or disruption of public service and classes in various public schools in Metro Manila. For, indeed, there are efficient but nondisruptive avenues, other than the mass actions in question, whereby petitioners could petition the government for redress of grievances.”[11] It bears stressing that suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees.[12] It may be conceded that the petitioners had valid grievances and noble intentions in staging the “mass actions,” but that will not justify their absences to the prejudice of innocent school children. Their righteous indignation does not legalize an illegal work stoppage.

As expounded by this Court in its aforementioned resolution of December 18, 1990, in the Manila Public School Teachers Association case, ante: “It is, of course, entirely possible that petitioners and their member-teachers had and have some legitimate grievances. This much may be conceded. After all, and for one thing, even the employees of the Court have found reason to complain about the manner in which the provisions of the salary standardization law on pay adjustments and position classification have been, or are being, implemented. Nonetheless, what needs to be borne in mind, trite though it may be, is that one wrong cannot be righted by another, and that redress, for even the most justifiable complaints, should not be sought through proscribed or illegal means. The belief in the righteousness of their cause, no matter how deeply and fervently held, gives the teachers concerned no license to abandon their duties, engage in unlawful activity, defy constituted authority and set a bad example to their students.” Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil Service Commission. The resolution of the said issue is not really necessary in the case at bar. The argument of petitioners that the said circular was the basis of their liability is off tangent. As a general rule, even in the absence of express statutory prohibition like Memorandum Circular No. 6, public employees are denied the right to strike or engage in a work stoppage against a public employer.[13] The right of the sovereign to prohibit strikes or work stoppages by public employees was clearly recognized at common law. Indeed, it is frequently declared that modern rules which prohibit such strikes, either by statute or by judicial decision, simply incorporate or reassert the common law rule.[14] To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor.[15] In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector.[16] On the issue of back wages, petitioners’ claim is premised on the allegation that their preventive suspension, as well as the immediate execution of the decision dismissing or suspending them, are illegal. These submissions are incorrect. Section 51 of Executive Order No. 292 provides that “(t)he proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.” Under the aforesaid provision, it is the nature of the charge against an officer or employee which determines whether he may be placed under preventive suspension. In the instant case, herein petitioners were charged by the Secretary of the DECS with grave misconduct,

gross neglect of duty, gross violation of Civil Service law, rules and regulations, and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without official leave (AWOL), for joining the teachers’ mass actions held at Liwasang Bonifacio on September 17 to 21, 1990. Hence, on the basis of the charges against them, it was within the competence of the Secretary to place herein petitioners under preventive suspension. As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: “The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days’ salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.” Petitioners’ claim of denial of due process must also fail. The records of this case clearly show that they were given opportunity to refute the charges against them but they failed to avail themselves of the same. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to seek reconsideration of the action or ruling complained of.[17] For as long as the parties were given the opportunity to be heard before judgment was rendered, the demands of due process were sufficiently met.[18] Having ruled that the preventive suspension of petitioners and the immediate execution of the DECS decision are in accordance with law, the next query is whether or not petitioners may be entitled to back wages. The issue regarding payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in our jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused the suspension and when the suspension is unjustified.[19] With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the “mass actions” but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences.[20] Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.[21] However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension. The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty.[22] Moreover, the general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As he works, he shall earn. Since petitioners did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of such salaries.[23] It is also noteworthy that in its resolutions, the Civil Service Commission expressly denied petitioners’ right to back wages. In the case of Yacia vs. City of Baguio,[24] the decision of the Commissioner of Civil Service ordering the dismissal of a government employee on the ground of dishonesty was immediately executed pending appeal, but, on appeal, the Civil Service Board of Appeals modified that penalty to a fine equivalent to six months pay. We ruled that the claim of an employee for back wages, for the period during which he was not allowed to work because of the execution of the decision of the Commissioner, should be denied. The appeal board’s modified decision did not exonerate the employee nor did it affect the validity of his dismissal or separation from work pending appeal, as ordered by the Civil Service Commissioner. Such separation from work pending his appeal remained valid and effective until it was set aside and modified with the imposition of the lesser penalty by the appeals board. If the Civil Service Appeals Board had intended to grant him back salaries and to reduce

his penalty to six months fine deductible from such unearned back salaries, the board could and should have so expressly stated in its decision. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED, but with the MODIFICATION that petitioner Rodolfo Mariano shall be given back wages without deduction or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should not exceed five years. SO ORDERED. Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur. Narvasa, C.J., and Torres, Jr., J., on leave.

10. GSIS v kapisanan ng mga Manggagawa sa GSIS Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 170132

December 6, 2006

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as GSIS President & General Manager, petitioners, vs. KAPISANAN NG MGA MANGGAGAWA SA GSIS, respondents.

DECISION

GARCIA, J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government Service Insurance System (GSIS) and its President and General Manager Winston F. Garcia (Garcia, for short) assail and seek to nullify the Decision1 dated June 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 87220, as reiterated in its Resolution2 of October 18, 2005 denying Garcia's motion for reconsideration. The recourse is cast against the following setting: A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in front of the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part of the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them members of the herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the "Union"), a public sector union of GSIS rank-and-file employees. Contingents from other government agencies joined causes with the GSIS group. The mass action's target appeared to have been herein petitioner Garcia and his management style. While the Mayor of Pasay City allegedly issued a rally permit, the absence of the participating GSIS employees was not covered by a prior approved leave.3

On or about October 10, 2004, the manager of the GSIS Investigating Unit issued a memorandum directing 131 union and non-union members to show cause why they should not be charged administratively for their participation in said rally. In reaction, KMG's counsel, Atty. Manuel Molina, sought reconsideration of said directive on the ground, among others, that the subject employees resumed work on October 8, 2004 in obedience to the return-towork order thus issued. The plea for reconsideration was, however, effectively denied by the filing, on October 25, 2004, of administrative charges against some 110 KMG members for grave misconduct and conduct prejudicial to the best interest of the service.4 What happened next is summarized by the CA in its challenged decision of June 16, 2005, albeit the herein petitioners would except from some of the details of the appellate court's narration: Ignoring said formal charges, KMG, thru its President, Albert Velasco, commenced the instant suit on November 2, 2004, with the filing of the Petition for Prohibition at bench. On the ground that its members should not be made to explain why they supported their union's cause, petitioner [KMG] faulted respondent [Garcia] with blatant disregard of Civil Service Resolution No. 021316, otherwise known as the Guidelines for Prohibited Mass Action, Section 10 of which exhorts government agencies to "harness all means within their capacity to accord due regard and attention to employees' grievances and facilitate their speedy and amicable disposition through the use of grievance machinery or any other modes of settlement sanctioned by law and existing civil service rules." Two supplements to the foregoing petition were eventually filed by KMG. The first, … apprised [the CA] of the supposed fact that its Speaker, Atty. Molina, had been placed under preventive suspension for 90 days and that the formal charges thus filed will not only deprive its members of the privileges and benefits due them but will also disqualify them from promotion, step increment adjustments and receipt of monetary benefits, including their 13th month pay and Christmas bonuses. The second, xxx manifested that, on December 17, 2004, respondent [Garcia] served a spate of additional formal charges against 230 of KMG's members for their participation in the aforesaid grievance demonstrations. In his December 14, 2004 comment to the foregoing petition, respondent [Garcia] averred that the case at bench was filed by an unauthorized representative in view of the fact that Albert Velasco had already been dropped from the GSIS rolls and, by said token, had ceased to be a member – much less the President – of KMG. Invoking the rule against forum shopping, respondent [Garcia] called [the CA's] attention to the supposed fact that the allegations in the subject petition merely duplicated those already set forth in two petitions for certiorari and prohibition earlier filed by Albert Velasco …. Because said petitions are, in point of fact, pending before this court as CAG.R. SP Nos. 86130 and 86365, respondent [Garcia] prayed for the dismissal of the petition at bench ….5 (Words in bracket added.)

It appears that pending resolution by the CA of the KMG petition for prohibition in this case, the GSIS management proceeded with the investigation of the administrative cases filed. As represented in a pleading before the CA, as of May 18, 2005, two hundred seven (207) out of the two hundred seventy eight (278) cases filed had been resolved, resulting in the exoneration of twenty (20) respondent-employees, the reprimand of one hundred eighty two (182) and the suspension for one month of five (5).6 On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia's "filing of administrative charges against 361 of [KMG's] members is tantamount to grave abuse of discretion which may be the proper subject of the writ of prohibition." Dispositively, the decision reads: WHEREFORE, premises considered, the petition [of KMG] is GRANTED and respondent [Winston F. Garcia] is hereby PERPETUALLY ENJOINED from implementing the issued formal charges and from issuing other formal charges arising from the same facts and events. SO ORDERED. (Emphasis in the original) Unable to accept the above ruling and the purported speculative factual and erroneous legal premises holding it together, petitioner Garcia sought reconsideration. In its equally assailed Resolution8 of October 18, 2005, however, the appellate court denied reconsideration of its decision. Hence, this recourse by the petitioners ascribing serious errors on the appellate court in granting the petition for prohibition absent an instance of grave abuse of authority on their part. We resolve to GRANT the petition. It should be stressed right off that the civil service encompasses all branches and agencies of the Government, including government-owned or controlled corporations (GOCCs) with original charters, like the GSIS,9 or those created by special law.10 As such, employees of covered GOCCs are part of the civil service system and are subject to circulars, rules and regulations issued by the Civil Service Commission (CSC) on discipline, attendance and general terms/conditions of employment, inclusive of matters involving self-organization, strikes, demonstrations and like concerted actions. In fact, policies established on public sector unionism and rules issued on mass action have been noted and cited by the Court in at least a case.11 Among these issuances is Executive Order (EO) No. 180, series of 1987, providing guidelines for the exercise of the right to organize of government employees. Relevant also is CSC Resolution No. 021316 which provides rules on prohibited concerted mass actions in the public sector.

There is hardly any dispute about the formal charges against the 278 affected GSIS employees – a mix of KMG union and non-union members - having arose from their having gone on unauthorized leave of absence (AWOL) for at least a day or two in the October 4 to 7, 2004 stretch to join the ranks of the demonstrators /rallyists at that time. As stated in each of the formal charges, the employee's act of attending, joining, participating and taking part in the strike/rally is a transgression of the rules on strike in the public sector. The question that immediately comes to the fore, therefore, is whether or not the mass action staged by or participated in by said GSIS employees partook of a strike or prohibited concerted mass action. If in the affirmative, then the denounced filing of the administrative charges would be prima facie tenable, inasmuch as engaging in mass actions resulting in work stoppage or service disruption constitutes, in the minimum, the punishable offense of acting prejudicial to the best interest of the service.12 If in the negative, then such filing would indeed smack of arbitrariness and justify the issuance of a corrective or preventive writ. Petitioners assert that the filing of the formal charges are but a natural consequence of the service-disrupting rallies and demonstrations staged during office hours by the absenting GSIS employees, there being appropriate issuances outlawing such kinds of mass action. On the other hand, the CA, agreeing with the respondent's argument, assumed the view and held that the organized demonstrating employees did nothing more than air their grievances in the exercise of their "broader rights of free expression"13 and are, therefore, not amenable to administrative sanctions. For perspective, following is what the CA said: Although the filing of administrative charges against [respondent KMG's] members is well within [petitioner Garcia's] official [disciplinary] prerogatives, [his] exercise of the power vested under Section 45 of Republic Act No. 8291 was tainted with arbitrariness and vindictiveness against which prohibition was sought by [respondent]. xxx the fact that the subject mass demonstrations were directed against [Garcia's] supposed mismanagement of the financial resources of the GSIS, by and of itself, renders the filing of administrative charges against [KMG's] member suspect. More significantly, we find the gravity of the offenses and the sheer number of persons … charged administratively to be, at the very least, antithetical to the best interest of the service…. It matters little that, instead of the 361 alleged by petitioner, only 278 charges were actually filed [and] in the meantime, disposed of and of the said number, 20 resulted to exoneration, 182 to reprimand and 5 to the imposition of a penalty of one month suspension. Irrespective of their outcome, the severe penalties prescribed for the offense with which petitioner's members were charged, to our mind, bespeak of bellicose and castigatory reaction …. The fact that most of the employees *Garcia+ administratively charged were eventually meted with what appears to be a virtual slap on the wrist even makes us wonder why respondent even bothered to file said charges at all. xxx.

Alongside the consequences of the right of government employees to form, join or assist employees organization, we have already mentioned how the broader rights of free expression cast its long shadow over the case. xxx we find [petitioner Garcia's] assailed acts, on the whole, anathema to said right which has been aptly characterized as preferred, one which stands on a higher level than substantive economic and other liberties, the matrix of other important rights of our people. xxx.14 (Underscoring and words in bracket added; citations omitted.) While its decision and resolution do not explicitly say so, the CA equated the right to form associations with the right to engage in strike and similar activities available to workers in the private sector. In the concrete, the appellate court concluded that inasmuch as GSIS employees are not barred from forming, joining or assisting employees' organization, petitioner Garcia could not validly initiate charges against GSIS employees waging or joining rallies and demonstrations notwithstanding the service-disruptive effect of such mass action. Citing what Justice Isagani Cruz said in Manila Public School Teachers Association [MPSTA] v. Laguio, Jr.,15 the appellate court declared: It is already evident from the aforesaid provisions of Resolution No. 021316 that employees of the GSIS are not among those specifically barred from forming, joining or assisting employees organization such as [KMG]. If only for this ineluctable fact, the merit of the petition at bench is readily discernible.16 We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores what the Court has uniformly held all along, the appellate court's position is contrary to what Section 4 in relation to Section 5 of CSC Resolution No. 02131617 provides. Besides, the appellate court's invocation of Justice Cruz's opinion inMPSTA is clearly off-tangent, the good Justice's opinion thereat being a dissent. It may be, as the appellate court urged¸ that the freedom of expression and assembly and the right to petition the government for a redress of grievances stand on a level higher than economic and other liberties. Any suggestion, however, about these rights as including the right on the part of government personnel to strike ought to be, as it has been, trashed. We have made this abundantly clear in our past determinations. For instance, in Alliance of Government Workers v. Minister of Labor and Employment,18 a case decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be unfair to allow employees of government corporations to resort to concerted activity with the ever present threat of a strike to wring benefits from Government. Then came the 1987 Constitution expressly guaranteeing, for the first time, the right of government personnel to self-organization19 to complement the provision according workers the right to engage in "peaceful concerted activities, including the right to strike in accordance with law."20 It was against the backdrop of the aforesaid provisions of the 1987 Constitution that the Court resolvedBangalisan v. Court of Appeals.21 In it, we held, citing MPSTA v. Laguio, Jr.,22 that

employees in the public service may not engage in strikes or in concerted and unauthorized stoppage of work; that the right of government employees to organize is limited to the formation of unions or associations, without including the right to strike. Jacinto v. Court of Appeals23 came next and there we explained: Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purpose of the association, [and] the overriding considerations of national security . . . . As regards the right to strike, the Constitution itself qualifies its exercise with the provision "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180 which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service" by stating that the Civil Service law and rules governing concerted activities and strikes in government service shall be observed. (Emphasis and words in bracket added; citations omitted) And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the right of government employees to organize in the following wise: It is relevant to state at this point that the settled rule in this jurisdiction is that employees in the public service may not engage in strikes, mass leaves, walkouts, and other forms of mass action that will lead in the temporary stoppage or disruption of public service. The right of government employees to organize is limited to the formation of unions or associations only, without including the right to strike, adding that public employees going on disruptive unauthorized absences to join concerted mass actions may be held liable for conduct prejudicial to the best interest of the service. Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative the poser of whether or not the right of government employees to self-organization also includes the right to strike, stated: When we proposed this amendment providing for self organization of government employees, it does not mean that because they have the right to organize, they have also the right to strike. That is a different matter. xxx25

With the view we take of the events that transpired on October 4-7, 2004, what respondent's members launched or participated in during that time partook of a strike or, what contextually amounts to the same thing, a prohibited concerted activity. The phrase "prohibited concerted activity" refers to any collective activity undertaken by government employees, by themselves or through their employees' organization, with the intent of effecting work stoppage or service disruption in order to realize their demands or force concessions, economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar nature.26 Indeed, for four straight days, participating KMG members and other GSIS employees staged a walk out and waged or participated in a mass protest or demonstration right at the very doorstep of the GSIS main office building. The record of attendance27 for the period material shows that, on the first day of the protest, 851 employees, or forty eight per cent (48%) of the total number of employees in the main office (1,756) took to the streets during office hours, from 6 a.m. to 2 p.m.,28leaving the other employees to fend for themselves in an office where a host of transactions take place every business day. On the second day, 707 employees left their respective work stations, while 538 participated in the mass action on the third day. A smaller number, i.e., 306 employees, but by no means an insignificant few, joined the fourth day activity. To say that there was no work disruption or that the delivery of services remained at the usual level of efficiency at the GSIS main office during those four (4) days of massive walkouts and wholesale absences would be to understate things. And to place the erring employees beyond the reach of administrative accountability would be to trivialize the civil service rules, not to mention the compelling spirit of professionalism exacted of civil servants by the Code of Conduct and Ethical Standards for Public Officials and Employees. 29 The appellate court made specific reference to the "parliament of the streets," obviously to lend concurrence to respondent's pretension that the gathering of GSIS employees on October 4-7, 2004 was an "assembly of citizens" out only to air grievances, not a striking crowd. According to the respondent, a strike presupposes a mass action undertaken to press for some economic demands or secure additional material employment benefits. We are not convinced. In whatever name respondent desires to call the four-day mass action in October 2004, the stubborn fact remains that the erring employees, instead of exploring non-crippling activities during their free time, had taken a disruptive approach to attain whatever it was they were specifically after. As events evolved, they assembled in front of the GSIS main office building during office hours and staged rallies and protests, and even tried to convince others to join their cause, thus provoking work stoppage and service-delivery disruption, the very evil sought to be forestalled by the prohibition against strikes by government personnel.30 The Court can concede hypothetically that the protest rally and gathering in question did not involve some specific material demand. But then the absence of such economic-related

demand, even if true, did not, under the premises, make such mass action less of a prohibited concerted activity. For, as articulated earlier, any collective activity undertaken by government employees with the intent of effecting work stoppage or service disruption in order to realize their demands or force concessions, economic or otherwise, is a prohibited concerted mass action31 and doubtless actionable administratively. Bangalisan even went further to say the following: "[i]n the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose." To petitioner Garcia, as President and General Manager of GSIS, rests the authority and responsibility, under Section 45 of Republic Act No. 8291, the GSIS Act of 1997, to remove, suspend or otherwise discipline GSIS personnel for cause.32 At bottom then, petitioner Garcia, by filing or causing the filing of administrative charges against the absenting participants of the October 4-7, 2004 mass action, merely performed a duty expected of him and enjoined by law. Regardless of the mood petitioner Garcia was in when he signed the charge sheet, his act can easily be sustained as legally correct and doubtless within his jurisdiction. It bears to reiterate at this point that the GSIS employees concerned were proceeded against and eventually either exonerated, reprimanded or meted a one-month suspension, as the case may be - not for the exercise of their right to assemble peacefully and to petition for redress of grievance, but for engaging in what appeared to be a prohibited concerted activity. Respondent no less admitted that its members and other GSIS employees might have disrupted public service.33 To be sure, arbitrariness and whimsical exercise of power or, in fine, grave abuse of discretion on the part of petitioner Garcia cannot be simplistically inferred from the sheer number of those charged as well as the gravity or the dire consequences of the charge of grave misconduct and conduct prejudicial to the best interest of the service, as the appellate court made it to appear. The principle of accountability demands that every erring government employee be made answerable for any malfeasance or misfeasance committed. And lest it be overlooked, the mere filing of formal administrative case, regardless of the gravity of the offense charged, does not overcome the presumptive innocence of the persons complained of nor does it shift the burden of evidence to prove guilt of an administrative offense from the complainant. Moreover, the Court invites attention to its holding in MPSTA v. Laguio, Jr., a case involving over 800 public school teachers who took part in mass actions for which the then Secretary of Education filed administrative complaints on assorted charges, such as gross misconduct. Of those charged, 650 were dismissed and 195 suspended for at least six (6) months The Court, however, did not consider the element of number of respondents thereat and/or the dire consequences of the charge/s as fatally vitiating or beclouding the bona fides of the Secretary of Education's challenged action. Then as now, the Court finds the filing of charges against a large number of persons and/or the likelihood that they will be suspended or, worse,

dismissed from the service for the offense as indicating a strong and clear case of grave abuse of authority to justify the issuance of a writ of prohibition. The appellate court faulted petitioner Garcia for not first taping existing grievance machinery and other modes of settlement agreed upon in the GSIS-KMG Collective Negotiations Agreement (CAN) before going full steam ahead with his formal charges.34 The Court can plausibly accord cogency to the CA's angle on grievance procedure but for the fact that it conveniently disregarded what appears to be the more relevant provision of the CNA. We refer to Article VI which reads: The GSIS Management and the KMG have mutually agreed to promote the principle of shared responsibility … on all matters and decisions affecting the rights, benefits and interests of all GSIS employees …. Accordingly, … the parties also mutually agree that the KMG shall not declare a strike nor stage any concerted action which will disrupt public service and the GSIS management shall not lockout employees who are members of the KMG during the term of this agreement. GSIS Management shall also respect the rights of the employees to air their sentiments through peaceful concerted activities during allowable hours, subject to reasonable office rules ....35 (Underscoring added) If the finger of blame, therefore, is to be pointed at someone for non-exhaustion of less confrontational remedies, it should be at the respondent union for spearheading a concerted mass action without resorting to available settlement mechanism. As it were, it was KMG, under Atty. Alberto Velasco, which opened fire first. That none of the parties bothered to avail of the grievance procedures under the GSIS-KMG CNA should not be taken against the GSIS. At best, both GSIS management and the Union should be considered as in pari delicto. With the foregoing disquisitions, the Court finds it unnecessary to discuss at length the legal standing of Alberto Velasco to represent the herein respondent union and to initiate the underlying petition for prohibition. Suffice it to state that Velasco, per Joint Resolution No. 0410-01 approved on October 5, 2004 by the KMG Joint Executive-Legislative Assembly, had ceased to be member, let alone president, of the KMG, having previously been dropped from the rolls of GSIS employees.36 While the dropping from the rolls is alleged to have been the subject of a CA-issued temporary restraining order (TRO), the injunction came after Atty. Velasco had in fact been separated from the service and it appears that the TRO had already expired. As a final consideration, the Court notes or reiterates the following relevant incidents surrounding the disposition of the case below: 1. The CA had invoked as part of its ratio decidendi a dissenting opinion in MPSTA, even going to the extent of describing as "instructive and timely" a portion, when the

majority opinion thereat, which the appellate court ignored, is the controlling jurisprudence. 2. The CA gave prominence to dispositions and rattled off holdings37 of the Court, which appropriately apply only to strikes in the private industry labor sector, and utilized the same as springboard to justify an inference of grave abuse of discretion. On the other hand, it only gave perfunctory treatment if not totally ignored jurisprudence that squarely dealt with strikes in the public sector, as if the right to strike given to unions in private corporations/entities is necessarily applicable to civil service employees. 3. As couched, the assailed CA decision perpetually bars respondent Garcia – and necessarily whoever succeeds him as GSIS President – not only from implementing the formal charges against GSIS employees who participated in the October 4 - 7, 2004 mass action but also from issuing other formal charges arising from the same events. The injunction was predicated on a finding that grave abuse of discretion attended the exercise of petitioner Garcia's disciplinary power vested him under Section 45 of RA 8291.38 At bottom then, the assailed decision struck down as a nullity, owing to the alleged attendant arbitrariness, not only acts that have already been done, but those yet to be done. In net effect, any formal charge arising from the October 4-7, 2004 incident is, under any and all circumstances, prejudged as necessarily tainted with arbitrariness to be slain at sight. The absurdities and ironies easily deducible from the foregoing situations are not lost on the Court. We close with the observation that the assailed decision and resolution, if allowed to remain undisturbed, would likely pave the way to the legitimization of mass actions undertaken by civil servants, regardless of their deleterious effects on the interest of the public they have sworn to serve with loyalty and efficiency. Worse still, it would permit the emergence of a system where public sector workers are, as the petitioners aptly put it, "immune from the minimum reckoning for acts that [under settled jurisprudence] are concededly unlawful." This aberration would be intolerable. WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE and the writ of prohibition issued by that court is NULLIFIED. No Cost. SO ORDERED. Puno, J., Chairperson, Sandoval-Gutierrez, and Azcuna, JJ., concur. Corona, J., On Leave.

11. In re: request for live radio-tv coverage of the trial in the sandiganbayan of the plunder case against pres. Estrada v Estrada Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 01-4-03-S.C.

June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA. SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors. VITUG, J.: The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings. On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo. On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition,3 submitting the following exegesis: "3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made aware of.

"4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings. "5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to railroad the instant criminal cases against the Former President Joseph Ejercito Estrada."4 Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation. In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read: "The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely. "While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. "Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. "In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. 1âwphi1.nêt 'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' "Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. "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." Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth. 5 Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the mostwatched program in the boob-tubes during those times, that would soon culminate in EDSA II.

The propriety of granting or denying the instant petition involve 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.6 When these rights race against one another, jurisprudence7 tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence,8 and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public's attention9 and where the conclusions reached are induced not by any outside force or influence10 but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded. Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on."11 Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.12 It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion.13 To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create.14 The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15 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.16 The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process17 which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process."18 This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices: "1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x. "2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is Simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth. "3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. x x x

"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him -sometimes the difference between life and death -dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice." In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intruding upon the detached atmosphere that should always surround the judicial process.21 The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part of the judge. En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23rd October resolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on the question squarely." But were the cases decided by the U.S. courts and cited in the minority opinion really in point? In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession or admissions made by the

accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper; Inc., vs, Virginia,23 the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses. Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused."26 Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings. The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991 may not appear to be propitious. Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what alone is submitted before them.27 A trial is not a free trade of ideas, Nor is a competing market of thoughts the known test of truth in a courtroom.28 The Court is not all that umnindful 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.

13. Social Security Employees Association v CA Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. Vicente T. Ocampo & Associates for petitioners.

CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike. The antecedents are as follows: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night

differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241]. The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 1237]. Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152]. The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision. The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute. On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code,

therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking. In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike. Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows: 1. Do the employees of the SSS have the right to strike? 2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work? These shall be discussed and resolved seriatim I The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government

employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained: MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569]. It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions: .Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such

employees may belong to any labor organization which does not impose the obligation to strike or to join in strike:Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations. No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter. On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue]. But are employees of the SSS covered by the prohibition against strikes? The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 &

70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike: The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied]. Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit: It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: .SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities. The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: .SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and governmentowned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." II The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it. It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil

Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute. This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. III In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board. The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final. WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED. SO ORDERED.

13. Social Weather Stations inc v Comelec EN BANC

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. DECISION MENDOZA, J.: Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The term “election surveys” is defined in §5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate’s popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters’ preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as “Survey”). To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of the COMELEC enjoins ¾ Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the “evils” sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in §5.4 of R.A. No. 9006 is much more limited. For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity.[2] Indeed, “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government ‘thus carries a heavy

burden of showing justification for the enforcement of such restraint.’”[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring “equal opportunity, time, space, and the right to reply” as well as uniform and reasonable rates of charges for the use of such media facilities for “public information campaigns and forums among candidates.”[4] This Court stated: 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.[5] MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC,[6] this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations. Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by “weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights” (page 7). After canvassing the reasons for the prohibition, i.e., to prevent lastminute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the “junking” of weak and “losing” candidates by their parties, and the form of election cheating called “dagdag-bawas” and invoking the State’s power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to “ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates.” Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, §14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that §50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries ¾ 78, according to the Solicitor General, while the dissent cites 28 ¾ which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O’Brien: [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.[8]

This is so far the most influential test for distinguishing content-based from contentneutral regulations and is said to have “become canonical in the review of such laws.”[9] It is noteworthy that the O’Brien test has been applied by this Court in at least two cases.[10] Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to §5.4. First. Sec. 5.4 fails to meet criterion [3] of the O’Brien test because the causal connection of expression to the asserted governmental interest makes such interest “not unrelated to the suppression of free expression.” By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words ¾ those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Nor is there justification for the prior restraint which §5.4 lays on protected speech. In Near v. Minnesota,[13] it was held: [The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC[14] and Osmeña v. COMELEC.[15] For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O’Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, “junking” of weak or “losing” candidates, and resort to the form of election cheating called “dagdagbawas.” Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the “winners.” Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that “*mere+ legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”[18] To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression

even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a “decision, order, or resolution” within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintains that Resolution 3636 was “rendered” by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELEC’s claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19] WHEREFORE, the petition for prohibition is GRANTED and §5.4 of R.A. No. 9006 and §24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional. SO ORDERED.