THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA
AND THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, PETITIONERS, VS. COMMISSION ON
ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,
RESPONDENTS.

RESOLUTION
LEONEN, J.:
This Motion for Reconsideration[1] filed by respondents prays that this Court reconsider its January 21, 2015
Decision and dismiss the Petition for lack of merit.[2] The dispositive portion of the Decision reads:
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby
made permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 letter dated
February 27, 2013 is declared unconstitutional.

SO ORDERED.[3] (Emphasis in the original)

First, respondents reiterate that the assailed notice and letter are not final orders by the Commission on Elections En
Banc in the exercise of its quasi-judicial functions, thus, not subject to this Court's review. [4] Respondents contend
that they merely implemented the law when they issued the assailed notice and letter. These are reviewable not by
this Court but by the Commission on Elections pursuant to Article IX-C, Section 2(3) of the Constitution on its
power to decide "all questions affecting elections."[5] There are also remedies under Rule 34 of the Commission on
Elections Rules of Procedure on preliminary investigation for election offenses. Respondents, thus, submit that
petitioners violated the rule on exhaustion of administrative remedies.[6]

Second, respondents submit that the tarpaulin is election propaganda that the Commission on Elections may
regulate.[7] The tarpaulin falls under the definition of election propaganda under Section 1.4 of Commission on
Elections Resolution No. 9615 for three reasons. First, it "contains the names of the candidates and party-list groups
who voted for or against the RH Law."[8] Second, "the check mark on 'Team Buhay' and the cross mark on 'Team
Patay' clearly suggests that those belonging to 'Team Buhay' should be voted while those under 'Team Patay' should
be rejected during the May 13, 2013 elections."[9] Lastly, petitioners posted the tarpaulin on the cathedral's facade to
draw attention.[10]

Respondents argue that the "IBASURA RH Law" tarpaulin would have sufficed if opposition to the law was
petitioners' only objective. They submit that petitioners "infused their political speech with election propaganda
which may be regulated by the COMELEC."[11] They further submit that it is immaterial that the posting was not "in
return for consideration" by any candidate or political party since the definition of election propaganda does not
specify by whom it is posted.[12] Respondents then discuss the history of the size limitation by mentioning all
previous laws providing for a 2' by 3' size limit for posters.[13] According to respondents, petitioners raised violation
of freedom of expression and did not question the soundness of this size limitation.[14] Petitioners even cut the
tarpaulin in half, thus confirming that the tarpaulin is election propaganda.[15]

Third, respondents argue that size limitation applies to all persons and entities without distinction, [16] thus:
Notwithstanding that petitioners are not political candidates, the subject tarpaulin is subject to the COMELEC's
regulation because petitioners' objective in posting the same is clearly to persuade the public to vote for or against
the candidates and party-list groups named therein, depending on their stand on the RH Law, which essentially
makes the subject tarpaulin a form of election propaganda.[17]
Respondents argue the general applicability of the Fair Elections Act. Election propaganda should not be
interchanged with campaign materials as the latter is only one form of the former. [18] Respondents submit that
"[w]hen an election propaganda is posted by a candidate or political party, it becomes a campaign material subject to
the COMELEC's regulation under Section 9 of the Fair Elections Act."[19] They argue that "the Fair Elections Act
regulates a variety of election-related activities that are not only engaged in by candidates and political parties but
also by other individuals and entities" in that Section 4 regulates publications, printing, and broadcast, while Section
5 regulates election surveys.[20] Assuming the Fair Elections Act does not apply to private individuals, Section 82 of
the Omnibus Election Code still applies to all.[21] Respondents also quote portions of the 1971 Election Code
deliberations, in that the prohibition covers a candidate's follower who writes "Vote for X" on his or her own shirt
even if this is not mass-produced since allowing this opens a wide loophole for possible abuse, and the limitation
ensures equality of access to all.[22]
Lastly, respondents argue that the size limitation is a valid content-neutral regulation on election propaganda. As
such, only a substantial governmental interest is required under the intermediate test. [23] Respondents cite National
Press Club v. Commission on Elections[24] in that "the supervisory and regulatory functions of the COMELEC under
the 1987 Constitution set to some extent a limit on the right to free speech during the election period." [25] The order
to remove the tarpaulin for failure to comply with the size limitation had nothing to do with the tarpaulin's message,
and "petitioners could still say what they wanted to say by utilizing other forms of media without necessarily
infringing the mandates of the law."[26] Respondents cite constitutional provisions as basis for regulating the use of
election propaganda such as political equality and election spending minimization. [27]

We deny the Motion for Reconsideration.

On respondents' argument on the prematurity of filing the case before this Court, we discussed in our Decision that
Rule 64 is not the exclusive remedy for all Commission on Elections' acts as Rule 65 applies for grave abuse of
discretion resulting to ouster of jurisdiction.[28] The five (5) cases[29] again cited by respondents are not precedents
since these involve election protests or are disqualification cases filed by losing candidates against winning
candidates.[30]

Petitioners are not candidates. They are asserting their right to freedom of expression. [31] We acknowledged the
"chilling effect" of the assailed notice and letter on this constitutional right in our Decision, thus:
Nothing less than the electorate's political speech will be affected by the restrictions imposed by COMELEC.
Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with
the sovereign right to change the contours of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with which we protect this kind of speech
does not depend on our evaluation of the cogency of the message. Neither do we assess whether we should protect
speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects.
We protect both speech and medium because the quality of this freedom in practice will define the quality of
deliberation in our democratic society.

COMELEC's notice and letter affect preferred speech. Respondents' acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty of this case, it could result in a "chilling effect" that
would affect other citizens who want their voices heard on issues during the elections. Other citizens who wish to
express their views regarding the election and other related issues may choose not to, for fear of reprisal or sanction
by the COMELEC.

Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.[32]
The urgency posed by the circumstances during respondents' issuance of the assailed notice and letter—the then
issue on the RH Law as well as the then upcoming elections—also rendered compliance with the doctrine on
exhaustion of administrative remedies as unreasonable.[33]

All these circumstances surrounding this case led to this Court's pro hac vice ruling to allow due course to the
Petition.

The other arguments have also been considered and thoroughly addressed in our Decision.

This Court's Decision discussed that the tarpaulin consists of satire of political parties that "primarily advocates a
stand on a social issue; only secondarily—even almost incidentally—will cause the election or non-election of a
candidate."[34] It is not election propaganda as its messages are different from the usual declarative messages of
candidates. The tarpaulin is an expression with political consequences, and "[t]his court's construction of the
guarantee of freedom of expression has always been wary of censorship or subsequent punishment that entails
evaluation of the speaker's viewpoint or the content of one's speech."[35]

We recognize that there can be a type of speech by private citizens amounting to election paraphernalia that can be
validly regulated.[36] However, this is not the situation in this case. The twin tarpaulins consist of a social advocacy,
and the regulation, if applied in this case, fails the reasonability test. [37]
Lastly, the regulation is content-based. The Decision discussed that "[t]he form of expression is just as important as
the information conveyed that it forms part of the expression[,]"[38] and size does matter.[39]

WHEREFORE, the Motion for Reconsideration is DENIED with FINALITY.

SO ORDERED.

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.

Kincaid and Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

MALCOLM, J.:

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

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

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

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

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of
the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30; and
the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial
District requesting investigation, proper action, and report. The justice of the peace was notified and
denied the charges. The judge of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it
must be, and it is hereby, recommended to the Governor-General that the respondent be removed
from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is
ordered that the proceedings had in this case be transmitted to the Executive Secretary."

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

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

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

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

That this assertion of the undersigned is evidenced in a clear and positive manner by facts
so certain, so serious, and so denigrating which appear in the affidavits attached hereto, and
by other facts no less serious, but which the undersigned refrain from citing herein for the
sake of brevity and in order not to bother too much the attention of your Honor and due to
lack of sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this town to continue
in his office, the protection of the rights and interests of its inhabitants will be illusory and
utopic; rights and interest solemnly guaranteed by the Philippine Bill of Rights, and justice in
this town will not be administered in accordance with law.

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

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

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

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

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

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

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

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

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

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

6. The court erred in not acquitting the defendants.

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

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

With these facts pleading justification, before testing them by certain principles which make up the
law of libel and slander, we feel warranted in seizing the opportunity to intrude an introductory and
general discussion of freedom of speech and press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to clear up certain misapprehensions on the subject
and to place these basic rights in their proper light.

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

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

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

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

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

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

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

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

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

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

The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government for
a redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have demanded
protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.
 The doctrine of privileged communications rests upon public policy, 'which looks to the free
and unfettered administration of justice, though, as an incidental result, it may in some
instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott vs.
National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)

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

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

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

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

A privileged communication should not be subjected to microscopic examination to discover grounds

of malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over
privileged communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3
How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72;
Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various
citations; 25 Cyc. pages 385 et seq.)

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

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

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

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

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

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

Separate Opinions

CARSON, J., concurring:

I concur. I think it proper to observe, however, that in my opinion the Attorney-General is entirely
correct when he says that this case is substantially identical with the former "Bustos case (The
United States vs. Bustos, 13 Phil. Rep., 690). I believe that a careful reading of our decisions in
these cases is sufficient to demonstrate that fact. The truth is that the doctrine of the prevailing
opinion in the former Bustos case has long since been abandoned by this court; and in my opinion it
would make for the more efficient administration of the Libel Law in these Islands to say so, in so
many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U. S. vs. Contreras [1912], 23
Phil. Rep., 513; U. S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U. S. vs. Galeza [1915], 31 Phil.
Rep., 365.)

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
SALVADOR ALARCON, ET AL., accused.
FEDERICO MANGAHAS, respondent-appellant.

Araneta, Zaragoza & Araneta for appellant.

Assistant Solicitor-General Salvador Abad Santos for appellee.

LAUREL, J.:

As an aftermath of the decision rendered by the Court of first Instance of Pampanga in criminal case
No. 5733, The People of the Philippines vs. Salvador Alarcon, et al., convicting the accused therein
— except one — of the crime of robbery committed in band, a denunciatory letter, signed by Luis M.
Taruc, was addressed to His Excellency, the President of the Philippines. A copy of said letter found
its way to the herein respondent, Federico Mañgahas who, as columnist of the Tribune, a newspaper
of general circulation in the Philippines, quoted the letter in an article published by him in the issue of
that paper of September 23, 1937. The objectionable portion is inserted in the following petition of
the provincial fiscal of Pampanga, filed with the Court of First Instance of that province on
September 29, 1937:

PETICION PARA QUE FEDERICO MAÑGAHAS SEA CASTIGADO POR DESACATO

Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como motivos de accion,
restuosamente alega:

1.º Que el 23 de julio de 1937, el que suscribe presento una querella en la causa arriba titulada, por
el delito de ROBO EN CUADRILLA, habiendose celebrado la vista de esta causa durante los dias
28, 29 y 30 del mismo mes y año;

2.º Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision declarando culpables a los
cincuenta y dos acusados, y condenando al acusado Ricardo Serrano 1.º como jefe de la cuadrilla,
a una pena indeterminada no menor de cuatro meses de arresto mayor, ni mayor de cuatro años de
prision correccional, y a todos los demas acusados a una pena indeterminada no menor de cuatro
meses de arresto mayor, ni mayor de cuatro añ os de prision correccional, y a todos los demas
acusados a una pena indeterminada no menor de dos meses y un dia de arresto mayor, ni mayor
de tres años, ocho meses y un dia de prision correccional y al pago proporcional de las costas;
3.º Que el 9 de agosto de 1937, no estando conformes de esta decision, los referidos acusados
presentaron su escrito de apelacion para ante la Corte de Apelaciones;

4.º Que el 23 de septiembre de 1937, el recurrido Federico Mangahas escribio, redacto, imprimio y
publico e hizo que se publicara en el periodico diario The Tribune que se edite en la Ciudad de
Manila y de general circulacion en las Islas Filipinas, en su numero correspondiente a dicha fecha,
un articulo que hacia referencia a este Hon. Juzgado y a la actuacion de este en esta causa, cuyo
articulo en parte es del tenor siguiente:

'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and convicted on a trumped
up charge of robbery in band because they took each a few cavans of palay for which they issued
the corresponding receipts, from the bodega in the hacienda where they are working. These tenants
contend that they have the right to take the palay for their food as the hacienda owner has the
obligation to give them rations of palay for their maintenance and their families to be paid later with
their share of their crop. But this is not all. When the convicted tenants appealed the case and were
released on bail pending their appeal, court and public officials exerted pressure upon one of their
bondsmen, as this bondsman informed the tenants, to withdraw his bail for them, and the fifty-two
tenants were arrested again and put in jail.'
[Link]

5.º Que la publicacion de este articulo acotado constituye un verdadero desacato al Tribunal, porque
tiene por objeto obstaculizar la recta administracion de justicia, y tiende, ademas, a impresionar en
el animo del Tribunal y a ejercer influencia en la decision que se dictare en este causa;

6.º Que la publicacion de dicho articulo es igualmente un verdadero desacato a este Hon. Juzgado,
por ser completamente falsos y tendenciosos los hechos expuestos en el mismo como hechos
ejecutados por este Hon. Juzgado;

7.º Que el recurrido Federico Mangahas con dicho articulo acotado, voluntaria, maliciosa y
deliberadamente trato y se propuso atacar la honra, virtud y reputacion de este Hon. Juzgado
exponiendolo el menosprecio y ridiculo del publico por las imputaciones falsas, maliciosas y
difamatorias contenidas en dicho articulo.

Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico Mangahas, c/o
T.V.T. Publishing Corporation, Calle Florentino Torres, Manila, para que comparezca ante
este Hon. Juzgado y conteste a la presente peticion, y, previos los tramites legales, dicho
recurido sea castigado por desacato. Pide igualmente se sirva dictar cualquier otra
resolucion que en derecho proceda.

San Fernando, Pampanga, septiembre 23, 1937.

On the same date, the lower court ordered the respondent to appear and show cause. The
respondent appeared and filed an answer, alleging:

1. That he did not draft and write the paragraph above quoted in the petition of the Provincial
Fiscal, but the same is merely a part of a letter addressed to the President of the Philippines,
certified copy of which is hereto attached, and marked Exhibit "1."

2. That he caused the said letter to be copied without comments or remarks as may be seen
from the attached issue of the "The Tribune" on September 23, 1937, marked Exhibit "2."
 3. That in having the said letter copied it was not the intention, much less the purpose and
design of the respondent to attack the honor, virtue and reputation of this Honorable Court
but merely cited it as an instance of the popular tendency to resort to the President in
everything.

4. That far from reflecting on the honor, virtue and reputation of this Honorable Court, the
publication of the letter to the President simply constitutes an indirect criticism of the
methods of the Popular Front in building up its political prestige.

5. That the publication of the letter in question did not and does not embarrass, impede,
intimidate or influence this Honorable Court in the exercise of its judicial functions, or prevent
an impartial trial in this case, inasmuch as the case has already been decided.

6. That the respondent alleges that this case is no longer pending before this Hon. Court and
therefore the Court has lost its jurisdiction over it.

7. The respondents contends that the portion of the article quoted by the provincial fiscal in
his petition for contempt does not constitute contempt of court because it does not attack nor
question the judgment of the Court but only explain the side of the defendant.

8. "The general rule is that to constitute any publication a contempt it must have reference to
a matter then pending in court, and be of a character tending to the injury of pending
proceeding before if and of the subsequent proceeding. It is accordingly held that libelous
comments upon a sentence already passed in a criminal proceeding is not a contempt."
(Percival v. State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221; 68 L. R.A., 255.)

9. "But comment upon the lower court's decision was held not contemptous because relating
to a concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac., 673 and Dumhan v. State, 6
Iowa, 245; although the case was then pending on appeal." (68 L.R.A., 262.) (Underlining
ours.)

10. That the publication of the letter in question is in line with the constitutional guarantee of
freedom of the press.

On November 29, 2937, the lower court entered an order, the dispositive part of which read thus:

Considerando, sin embargo, todas las circunstancias del case, el Juzgado solamente
impone al recurrido una multa nominal de P25, o en case de insolvencia, cinco dias de
prision sin perjuico de la accion por libelo que el fiscal creyere conviniente incoar contra Luis
M. Taruc.

Asi se ordena.

Respondent Mañgahas appealed from this order to the Court of Appeals — which later certified the
case to this Court as involving only a question of law — assigning the following errors allegedly
committed by the trial court;

I. The lower court erred in finding the respondent guilty of contempt of court.

II. The lower court erred in considering the letter quoted in the article in question as falling
under the Rules on the Investigation of Judges of First Instance.
 III. The lower court erred in taking jurisdiction of the motion for contempt.

Consideration of the first error is all that is necessary as the same will lead incidentally to the
disposition of the other two.

The elements of contempt by newspaper publications are well defined by the cases adjudicated in
this as in other jurisdictions. Newspaper publications tending to impede, obstruct, embarrass, or
influence the courts in administering justice in a pending suit or proceeding constitutes criminal
contempt which is summarily punishable by the courts. The rule is otherwise after the cause is
ended. (In re Lozano and Quevedo, 54 Phil., 801; In re Abistado, 57 Phil., 668.) It must, however,
clearly appear that such publications do impede, interfere with, and embarrass the administration of
justice before the author of the publications should be held for contempt. (Nixon v. State 207 Ind.,
426, 193 N.E., 591, 97 A.L.R., 894.) What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to administer justice in the decision of a
pending case. There is no pending case to speak of when and once the court has come upon a
decision and has lost control either to reconsider or amend it. That, we believe, is the case at bar, for
here we have a concession that the letter complained of was published after the Court of First
Instance of Pampanga had decided the aforesaid criminal case for robbery in band, and after that
decision had been appealed to the Court of Appeals. The fact that a motion to reconsider its order
confiscating the bond of the accused therein was subsequently filed may be admitted; but, the
important consideration is that it was then without power to reopen or modify the decision which it
had rendered upon the merits of the case, and could not have been influenced by the questioned
publication.

If it be contended, however, that the publication of the questioned letter constitutes contempt of the
Court of Appeals where the appeal in the criminal case was then pending, as was the theory of the
provincial fiscal below which was accepted by the lower court, we take the view that in the
interrelation of the different courts forming our integrated judicial system, one court is not an agent or
representative of another and may not, for this reason, punish contempts in vindication of the
authority and decorum which are not its own. The appeal transfer the proceedings to the appellate
court, and this last word becomes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.

The Solicitor-General, in his brief, suggests that "even if there had been nothing more pending
before the trial court, this still had jurisdiction to punish the accused for contempt, for the reason that
the publication scandalized the court. (13 C.J., p. 37, 45; 6 R.C.L., 513.)" The rule suggested, which
has its origin at common law, is involved in some doubt under modern English law and in the United
States, "the weight of authority, however, is clearly to the effect that comment upon concluded cases
is unrestricted under our constitutional guaranty of the liberty of the press." (Annotations, 68 L.R.A.,
255.) Other considerations argue against our adoption of the suggested holding. As stated, the rule
imported into this jurisdiction is that "newspaper publications tending to impede, obstruct, embarrass,
or influence the courts in administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is otherwise after the case is
ended." (In re Lozano and Quevedo, supra; In re Abistado, supra.) In at least two instances, this
Court has exercised the power to punish for contempt "on the preservative and on the vindicative
principle" (Villavicencio vs. Lukban, 39 Phil., 778), "on the corrective and not on the retaliatory idea
of punishment". In re Lozano and Quevedo, supra.) Contempt of court is in the nature of a criminal
offense (Lee Yick Hon vs. Collector of Customs, 41 Phil., 548), and in considering the probable
effects of the article alleged to be contemptuous, every fair and reasonable inference consistent with
the theory of defendant's innocence will be indulged (State v. New Mexican Printing Co., 25 N. M.,
102, 177 p. 751), and where a reasonable doubt in fact or in law exists as to the guilt of one of
constructive contempt for interfering with the due administration of justice the doubt must be
resolved in his favor, and he must be acquitted. (State v. Hazeltine, 82 Wash., 81, 143 p. 436.) The
appealed order is hereby reversed, and the respondent acquitted, without pronouncement as to
costs. So ordered.

Avanceña, C.P., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

Separate Opinions

MORAN, C.J., dissenting:

Respondent Federico Mañgahas admitted having published in the September 23, 1937 issue of the
Tribune, a newspaper of general circulation in the Philippines, an article, the pertinent portion of
which reads as follows:

As the election draws near the tenants and workers who have joined the Popular Front
are persecuted and jailed by the authorities in Pampanga, in order to prevent them to take
part in the coming election.

Fifty-two tenants in Floridablanca, Pampanga, have been charged and convicted on a

trumped up charge of robbery in band because they issued the corresponding receipts, from
the bodega in the hacienda where they are working. These tenants contend that they have
the right to take the palay for their food as the hacienda owner has the obligation to give
them rations of palay for their maintenance and their families to be paid later with their share
of their crop. But this is not all. When the convicted tenants appealed the case and were
release from bail pending their appeal, court and public official exerted pressure upon one of
their bondsmen, as this bondsman informed the tenants, to withdraw his bail for them, and
the fifty-two tenants were arrested again and put in jail.

Other twenty-six tenants in Minalin, Pampanga, have just been arrested on the same charge
as those in Floridablanca. The case of the Minalin tenants was dismissed about three
months ago by the provincial fiscal, but it was lately revived in order to keep the tenants in
jail so that they may not be able to vote in the coming election.

The workers and peasants seeing their abuses have entirely lost their confidence in the so-
called courts of justice. Trials in court are farce and mockery for them, and they come to look
upon the courts and judges as mere tools in the hands of the Government of the ruling class
to oppress the workers and the poor. (Underscoring mine.)

Although the information quotes but a part of the foregoing article, as respondent has offered the
same in evidence, it may be inquired into in its entirety for the purpose of determining the true
meaning and scope of the offense charged.
Upon the authority of In re Lozano and Quevedo, 54 Phil., 801 and In re Abistado, 57 Phil., 668, the
majority ruled that the foregoing article, having been published after the criminal case for robbery in
band has been decided by the Court of First Instance of Pampanga and after the decision therein
has been appealed to the Court of Appeals, dos not constitute contempt of that court.

Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A
publication which tends to impede, obstruct, embarrass or influence the courts in administering
justice in a pending suit or proceeding, constitutes criminal contempt which is summarily punishable
by courts. This is the rule announced in the case relied upon by the majority. A publication which
tends to degrade the courts and to destroy public confidence in them or that which tends to bring
them in any way into dispute, constitutes likewise criminal contempt, and is equally punishable by
courts. In the language of the majority, what is sought, in the first kind of contempt, to be shielded
against the influence of newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice
is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or
to destroy public confidence in them. In the first there is no contempt where there is no action
pending, as there is no decision which might in any way be influenced by the newspaper publication.
In the second, the contempt exists, with or without a pending case, as what is sought to be protected
is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility if public
confidence in them is destroyed.

In the instant case, there can be no question that the publication is an attack upon the court itself
calculated to bring it into disfavor; and to the extent that it characterizes the trial therein as "farce and
mockery," it jeopardizes not only its dignity but also its very existence. To deny to the court the
power to punish such an attack is to deprive it of its very right to self-preservation.

It is true that the Constitution guarantees the freedom of speech and of the press. But license or
abuse of that freedom should not be confused with freedom in its true sense. Well-ordered liberty
demands no less unrelaxing vigilance against abuse of the sacred guaranties of the Constitution
than the fullest protection of their legitimate exercise. As important as is the maintenance of a free
press and the free exercise of the rights of the citizens is the maintenance of a judiciary unhampered
in its administration of justice and secure in its continuos enjoyment of public confidence. "The
administration of justice and freedom of the press, though separate and distinct are equally sacred,
and neither should be violated by the other. The press and the courts have correlative rights and
duties and should cooperate to uphold the principles of the Constitution and the laws, from which the
former receives its prerogatives and the latter its jurisdiction." (U.S. vs. Sullens, 36 Fed., 2d ed.,
230.) Democracy cannot long endure in a country where liberty is grossly misused any more than
where liberty is illegitimately abridged.

In State vs. Morrill, 16 Ark., 384, the court wisely observed:

Any citizen has the right to publish the proceedings and decisions of this court, and if he
deem it necessary for the public good, to comment upon them freely, discuss their
correctness, the fitness or unfitness of the judges for their stations, and the fidelity with which
they perform the important public trusts reposed in them, but he has no right to attempt, by
defamatory publications, to degrade the tribunal, destroy public confidence in it, and dispose
the community to disregard and set at naught its orders, judgments, and decrees. Such
publications are an abuse of the liberty of the press, and tend to sap the very foundation of
good order and well being in society, by obstructing the course of justice. If a judge is really
corrupt, and unworthy of the station which he holds, the constitution has provided an ample
remedy by impeachment or address, where he can meet his accuser face to face, and his
 conduct may undergo a full investigation. The liberty of the press is one thing, and licentious
scandal is another. . . .

If the contemptous publication made by the respondent herein were directed to this Court in
connection with a case already decided, the effect of the rule laid down by the majority is to deny this
Court the power to vindicate its dignity. The mischievous consequences that will follow from the
situation thus sought to be permitted, are both too obvious and odious to be stated. The
administration of justice, no matter how righteous, may be identified with all sorts of fancied scandal
for having lost their cases, will have every way to give their resentment. Respect and obedience to
law will ultimately be shattered, and as a consequence, the utility of the courts will completely
disappear.

It may said that respect to courts cannot be compelled and that the public confidence should be a
tribute to judicial worth, virtue and intelligence. But compelling respect to courts is one thing and
denying the courts the power to vindicate themselves when outraged is another. I know of no
principle of law that authorizes with impunity a discontented citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and judges. If he believes that a
judge is corrupt and that justice has somewhere been perverted law and order require that he follow
then processes provided by the Constitution and the statutes by instituting the corresponding
proceedings for impeachment or otherwise. As Mr. Justice Palmer, in speaking of the duty of courts
and court officers, has wisely said:

Would it be unjust to the person who are called upon to exercise these powers to compel
them to do so, and at the same time allow them to be maltreated or libeled because they did
so? How would a suitor like a juryman trying his case who might expect he would be
assaulted, beaten, his property destroyed, or his reputation blasted, in case he decided
against his opponent? Apply the same thing to judges, or the sheriff, and how long could
organized society hold together? . . . With reference to a judge, if he has acted corruptly, it is
worse than a mere contempt. But it is apparent it would not be right that the court of which he
is a member should determine this and consequently the law has provided a plain and easy
method of bringing him to justice by a petition to Parliament: . . . but, while the law authorizes
thus, it does not allow infamous charges to be made against him by persons, either in the
newspapers or otherwise, with reference to how he has or shall discharge the duties of his
office. It must be apparent to all right thinking men that, if such were allowed to be indulged
in, it must end in the in the usefulness of the court itself being destroyed, however righteous
its judges may act. From what I have said it must not be supposed that I think that the
decisions of the court, or the actions of the judges, or other persons composing the court,
are not to be discussed; on the contrary, I would allow the freest criticism of all such acts if
done in a fair spirit, only stopping at what must injure or destroy the court itself and bring the
administration of the law into disrepute, or be an outrage on the persons whose acts are
discussed, or when such discussion would interfere with the right decision of the cause
before the court. (Ex parte Baird, 27 N.B., 99.)

It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This
suggestion has, however, no rational basis in principle. In the first place, the outrage is not directed
to the judge as a private individual but to the judge as such or to the court as an organ of the
administration of justice. In the second place, public interests will gravely suffer where the judge, as
such, will, from time to time, be pulled down and disrobed of the judicial authority to face his
assailants on equal grounds and prosecute cases in his behalf as a private individual. The same
reasons of public policy which exempt a judge from civil liability in the exercise of his judicial
functions, most fundamental of which is the policy to confine his time exclusively to the discharge of
his public duties, applies here with equal, if not superior, force. (Hamilton v. Williams, 26 Ala. 529;
Busteed v. Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 13o; Coons v. State, 191 Ind. 580; 134
N. E. 194.) Besides, as chief Justice Kent said in Yates v. Lansing, 5 Johns, 2882;

Whenever we subject the established courts of the land to the degradation of private
prosecutions, we subdue their independence and destroy their authority. Instead of being
vulnerable before the public, they become contemptible, and we thereby embolden the
licentious to trample upon everything sacred in society, and to overturn those institutions
which have hitherto been deemed the best guardians of civil liberty.

I know that in the United States, publications about courts, after the conclusion of a pending case, no
matter how perverse or scandalous, are in many instances brought within the constitutional
protection of the liberty of the press. But while this rule may find justification in that country,
considering the American temper and psychology and the stability of its political institutions, it is
doubtful whether her a similar toleration of gross misuse of liberty of the press would, under our
circumstances, result in no untoward consequences to our structure of democracy yet in the process
of healthful development and growth.

I still admire the judiciary of England and the vigilance with which it guards the stability of its judicial
institutions. Mr. Justice Wilmot in king v. Almon; Wilmots Notes, p. 253, involving a publication
containing a diatribe against Lord Mansfield, said:

To be impartial, and to be universally thought so, are both absolutely necessary for giving justice that
free, open, and uninterrupted current which it has for many ages found all over this kingdom, and
which so eminently distinguishes and exalts it above all nations upon the earth . . . The constitution
had provided very apt and proper remedies for correcting and rectifying the involuntary mistakes of
judges, and for punishing and removing them for any voluntary perversions of justice. Nut, if their
authority is to be trampled upon by pamphleteers and newswriters, and the people are to be told that
the power given to the judges for their protection is prostituted to their destruction, the courts may
retain its power some little time; but I am sure it will instantly lose all its authority, and the power of
the court will not long survive the authority of it.

I therefore hold that the publication constitutes contempt of the trial court and vote accordingly to
affirm the order.

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
[Link] M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

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

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

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

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

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

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

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

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

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

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

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

Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution.
The story incorporates actual documentary footage filmed during the period which we
hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.
 David Williamson is Australia's leading playwright with some 14 hugely successful
plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films
(The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a

deep understanding of the Philippines, who has worked on the research for this
project for some 18 months. Together with Davi Wilhamgon they have developed a
script we believe accurately depicts the complex issues and events that occurred
during th period .

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

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

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

It appears that petitioners acceded to this demand and the name of private respondent Enrile was
deleted from the movie script, and petitioners proceeded to film the projected motion picture.

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

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

In an Order dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against
2

the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants,

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

xxx xxx xxx

(Emphasis supplied)

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

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

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

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

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

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

Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas
and the expression of the artistic impulse. Their effect on the perception by our
people of issues and public officials or public figures as well as the pre cultural traits
is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that
 they are designed to entertain as well as to inform' (Ibid, 501). There is no clear
dividing line between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free
expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech
and of expression. In our community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media facilities commonly require
to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exerciseof constitutionally protected om of
speech and of expression can only result in the drastic contraction of such constitutional liberties in
our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime

ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right
of privacy. It is left to case law, however, to mark out the precise scope and content of this right in
5

differing types of particular situations. The right of privacy or "the right to be let alone," like the right
6

of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. Succinctly put, the right of
7

privacy cannot be invoked resist publication and dissemination of matters of public interest. The 8

interest sought to be protected by the right of privacy is the right to be free

from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, on which private respondent relies heavily, recognized a right to
10

privacy in a context which included a claim to freedom of speech and of

expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family
of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a
motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party
for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for
whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men
were tried and convicted. In the judgment of the lower court enforcing the licensing agreement
11

against the licensee who had produced the motion picture and exhibited it but refused to pay the
stipulated royalties, the Court, through Justice Melencio-Herrera, said:

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

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

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

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

xxx xxx xxx

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

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

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

1. It may be observed at the outset that what is involved in the instant case is a prior and direct
restraint on the part of the respondent Judge upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any
kind imposed upon the movie producer who in fact completed and exhibited the film biography of
Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity
vitiates. The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent
14

liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary
Restraining Order one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private respondent nor the
respondent trial Judge knew what the completed film would precisely look like. There was, in other
words, no "clear and present danger" of any violation of any right to privacy that private respondent
could lawfully assert.

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

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

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

A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this
category are those who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainment. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.
 Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions" that
they had sought publicity and consented to it, and so could not complaint when they
received it; that their personalities and their affairs has already public, and could no
longer be regarded as their own private business; and that the press had a privilege,
under the Constitution, to inform the public about those who have become legitimate
matters of public interest. On one or another of these grounds, and sometimes all, it
was held that there was no liability when they were given additional publicity, as to
matters legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was
held to arise out of the desire and the right of the public to know what is going on in
the world, and the freedom of the press and other agencies of information to tell
it. "News" includes all events and items of information which are out of the ordinary
hum-drum routine, and which have 'that indefinable quality of information which
arouses public attention.' To a very great extent the press, with its experience or
instinct as to what its readers will want, has succeeded in making its own definination
of news, as a glance at any morning newspaper will sufficiently indicate. It includes
homicide and othe crimes, arrests and police raides, suicides, marriages and
divorces, accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other similar matters of
genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to information
or education, or even entertainment and amusement, by books, articles, pictures,
films and broadcasts concerning interesting phases of human activity in general, as
well as the reproduction of the public scene in newsreels and travelogues. In
determining where to draw the line, the courts were invited to exercise a species of
censorship over what the public may be permitted to read; and they were
understandably liberal in allowing the benefit of the doubt. 15

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

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

II

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

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

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

WHEREFORE,

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

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

SO ORDERED.

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,

vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.

BELLOSILLO, J.:

PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression be stirs and presents itself time
and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting
terrain, explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes
and bounds of its controversial domain. This, prominently, is one such case.

Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal
metamorphoses than his right to freely and openly express his views. Blackstone's pontifical
comment that "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous
libels are punished by English law ... the liberty of the press, properly understood, is by no means
infringed or violated," found kindred expression in the landmark opinion of England's Star Chamber
in the Libelis Famosis case in 1603. That case established two major propositions in the
1

prosecution of defamatory remarks: first, that libel against a public person is a greater offense than
one directed against an ordinary man, and second, that it is immaterial that the libel be true.

Until republicanism caught fire in early America, the view from the top on libel was no less dismal.
Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal
libel liability under the clear and present danger rule, to the other end of the spectrum in defense of
the constitutionally protected status of unpopular opinion in free society.

Viewed in modern times and the current revolution in information and communication technology,
libel principles formulated at one time or another have waxed and waned through the years in the
constant ebb and flow of judicial review. At the very least, these principles have lost much of their
flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought
and discourse emanating from just about every source and direction, aided no less by an
increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and
sensibility on what may be considered as criminal illegitimate encroachments on the right of persons
to enjoy a good, honorable and reputable name. This may explain the imperceptible demise of
criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage
on one's reputation.

In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v.
Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners
Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing certain
articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc.
(PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and
Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs
the column Jaywalker.

Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman,
business consultant and journalist by profession. In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy.

During the congressional hearings on the transport crisis sometime in September 1988 undertaken
by the House Sub-Committee on Industrial Policy, those who attended agreed to organize the First
National Conference on Land Transportation (FNCLT) to be participated in by the private sector in
the transport industry and government agencies concerned in order to find ways and means to solve
the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill
that would embody a long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost around P1,815,000.00
would be funded through solicitations from various sponsors such as government agencies, private
organizations, transport firms, and individual delegates or participants.
2

On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco
Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the
business community for the support of the conference.

Between May and July 1989 a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an
"organizer of a conference" without naming or identifying private respondent. Neither did it refer to
the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of
petitioner together with the dates they were published. 3

31 May 1989

Another self-proclaimed "hero" of the EDSA Revolution goes around organizing

"seminars and conferences" for a huge fee. This is a simple ploy coated in jazzy
letterheads and slick prose. The "hero" has the gall to solicit fees from anybody with
bucks to spare. Recently, in his usual straightforward style, Transportation Secretary
Rainerio "Ray" Reyes, asked that his name, be stricken off from the letterheads the
"hero" has been using to implement one of his pet "seminars." Reyes said: "I would
like to reiterate my request that you delete my name." Note that Ray Reyes is an
honest man who would confront anybody eyeball to eyeball without blinking.

9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of

the names of President Aquino and Secretary Ray Reyes. The conference program
being circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be
unmasked as a moneymaking gimmick.

19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom,
Dick and Harry and to almost all government agencies. And the letterheads carried
the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out front Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the
waste basket. Now, if the 3,000 persons and agencies approached by the organizer
shelled out 1,000 each, that's easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which the
Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment license
application of the P100,000 donor.

21 June 1989

A "conference organizer" associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about the
man's dubious deals. His notoriety, in according to reliable sources, has reached the
Premier Guest House where his name is spoken like dung.

xxx xxx xxx

The first information says that the "organizer" tried to mulct half a million pesos from
a garment producer and exporter who was being investigated for violation of the
rules of the Garments, Textile, Embroidery and Apparel Board. The "organizer" told
the garment exporter that the case could be fixed for a sum of P500,000.00. The
organizer got the shock of his life when the exporter told him: "If I have that amount. I
will hire the best lawyers, not you." The organizer left in a huff, his thick face very
pale.

xxx xxx xxx

Friends in government and the private sector have promised the Jaywalker more
"dope" on the "organizer." It seems that he was not only indiscreet; he even failed to
cover his tracks. You will be hearing more of the "organizer's" exploits from this
corner soon.

22 June 1989

The scheming "organizer" we have been writing about seems to have been
spreading his wings too far. A congressional source has informed the Jaywalker that
the schemer once worked for a congressman from the North as some sort of a
consultant on economic affairs. The first thing the "organizer" did was to initiate
hearings and round-the-table discussions with people from the business, export and
— his favorite — the garments sector.

xxx xxx xxx

The "organizer's" principal gamely went along, thinking that his "consultant" had
nothing but the good of these sectors in mind. It was only later that he realized that
the "consultant" was acting with a burst of energy "in aid of extortion." The
"consultant" was fired.
 xxx xxx xxx

There seems to be no end to what a man could do to pursue his dubious ways. He
has tried to operate under a guise of a well-meaning, reformist. He has intellectual
pretensions — and sometimes he succeeds in getting his thoughts in the inside
pages of some newspapers, with the aid of some naive newspaper people. He has
been turning out a lot of funny-looking advice on investments, export growth, and the
like.

xxx xxx xxx

A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the
Cabinet man might not get his wish. There is one "organizer" who, even if physically
banned, call still concoct ways of doing his thing. Without a tinge of remorse, the
"organizer" could fill up his letterheads with, names of Cabinet members,
congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.

3 July 1989

A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in, the affair were mostly leaders of jeepney
drivers' groups. None of the government officials involved in regulating public
transportation was there. The big names in the industry also did not participate. With
such a poor attendance, one wonders why the conference organizers went ahead
with the affair and tried so hard to convince 3,000 companies and individuals to
contribute to the affair.

xxx xxx xxx

The conference was doomed from the start. It was bound to fail. The personalities
who count in the field of transpiration refused to attend the affair or withdrew their
support after finding out the background of the organizer of the conference. How
could a conference on transportation succeed without the participation of the big
names in the industry and government policy-makers?

Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he
was the "organizer" alluded to in petitioner Borjal's columns. In a subsequent letter to The Philippine
4

Star, private respondent refuted the matters contained in petitioner Borjal's columns and openly
challenged him in this manner —

To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso
of FNCLT money. On the other hand, if I can prove that Borjal has used his column
as a "hammer" to get clients for his PR Firm, AA Borjal Associates, he should resign
from the STAR and never again write a column. Is it a deal? 5

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of
leverage to obtain contracts for his public relations firm, AA Borjal Associates. In turn, petitioner
6
Borjal published a rejoinder to the challenge of private respondent not only to protect his name and
honor but also to refute the claim that he was using his column for character assassination. 7

Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for
libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August
1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and later by the Office of the
President.

On 31 October 1990 private respondent instituted against petitioners a civil action for damages
based on libel subject of the instant case. In their answer, petitioners interposed compulsory
8

counterclaims for actual, moral and exemplary damages, plus attorney's fees and costs. After due
consideration, the trial court decided in favor of private respondent Wenceslao and ordered
petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and
compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorney's fees, and to pay the costs of suit.

The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing
him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals who
has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that
petitioner's claim of privilege communication was unavailing since the privileged character of the
articles was lost by their publication in a newspaper of general circulation; that petitioner could have
performed his officer as a newspaperman without necessarily transgressing the rights of Wenceslao
by calling the attention of the government offices concerned to examine the authority by which
Wenceslao acted, warning the public against contributing to a conference that, according to his
perception, lacked the univocal indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and,
that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual
pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair
comment from actionable defamation.

Private respondent manifested his desire to appeal that portion of the appellate court's decision
which reduced the amount of damages awarded him by filing with this Court a Petition for Extension
of Time to File Petition and a Motion for Suspension of Time to File Petition. However, in a
9

Resolution dated 27 May 1996, the Second Division denied both motions: the first, for being
premature, and the second, for being a wrong remedy.

On 20 November 1996 when the First Division consolidated and transferred the present case to the
Second Division, there was no longer any case thereat with which to consolidate this case since
G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months earlier.

On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the
motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners
contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was
sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious
consideration to the findings of the Department of Justice and the Office of the President that private
respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely prima facie evidence which
is significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the
subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the
"public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned
articles lost their privileged character because of their publication in a newspaper of general
circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners
although he failed to prove actual malice on their part, and that the prosecutors of the City of Manila,
the Department of Justice, and eventually, the Office of the President, had already resolved that
there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that
Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners
pray for the reversal of the appellate court's ruling, the dismissal of the complaint against them for
lack of merit, and the award of damages on their counterclaim.

The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named. It is also not sufficient that the offended
party recognized himself as the person attacked or defamed, but it must be shown that at least a
third person could identify him as the object of the libelous publication. Regrettably, these requisites
10

have not been complied with in the case at bar.

In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently
identified Wenceslao as the "conference organizer." It cited the First National Conference on Land
Transportation, the letterheads used listing different telephone numbers, the donation of
P100,000.00 from Juliano Lim and the reference to the '"organizer of the conference" — the very
same appellation employed in all the column items — as having sufficiently established the identity
of private respondent Wenceslao for those who knew about the FNCLT who were present at its
inception, and who had pledged their assistance to it.

We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned
articles written by Borjal do not identify private respondent Wenceslao as the organizer of the
conference. The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the person referred to therein.
Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and
anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a
matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National
Conference on Land Transportation whose principal organizers are not specified" (emphasis
supplied). Neither did the FNCLT letterheads disclose the identity of the conference organizer
11 12

since these contained only an enumeration of names where private respondent Francisco
Wenceslao was described as Executive Director and Spokesman and not as a conference
organizer. The printout and tentative program of the conference were devoid of any indication of
13 14 15

Wenceslao as organizer. The printout which contained an article entitled "Who Organized the
NCLT?" did not even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director," and not as organizer.

No less than private respondent himself admitted that the FNCLT had several organizers and that he
was only a part of the organization, thus —

I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings. 16

Significantly, private respondent himself entertained doubt that he was the person spoken of in
Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the
one referred to in the subject articles. His letter to the editor published in the 4 June 1989 issue of
17

The Philippine Star even showed private respondent Wenceslao's uncertainty —

Although he used a subterfuge, I was almost certain that Art Borjal referred to the
First National Conference on Land Transportation (June 29-30) and me in the
second paragraph of his May 31 column . . . 18

Identification is grossly inadequate when even the alleged offended party is himself unsure that he
was the object of the verbal attack. It is well to note that the revelation of the identity of the person
alluded to came not from petitioner Borjal but from private respondent himself; when he supplied the
information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he
was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in
blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the
case falls.

The above disquisitions notwithstanding, and on the assumption arguendo that private respondent
has been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to
resolve the other issues and pass upon the pertinent findings of the courts a quo.

The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether
the disputed articles constitute privileged communications as to exempt the author from liability.

The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are
privileged in character under the provisions of Art. 354 of The Revised Penal Code which state —

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to

be malicious, even if it be true, if no good intention and justifiable motive for making it
is shown, except in the following cases:

1) A private communication made by any person to another in the performance of

any legal, moral or social duty; and,

2) A fair and true report, made in good faith, without any comments or remarks, of
any judicial or other official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

Respondent court explained that the writings in question did not fall under any of the exceptions
described in the above-quoted article since these were neither "private communications" nor "fair
and true report . . . without any comments or remarks." But this is incorrect.

A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely

privileged communications are those which are not actionable even if the author has acted in bad
faith. An example is found in Sec. 11, [Link], of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon
the other hand, qualifiedly privileged communications containing defamatory imputations are not
actionable unless found to have been made without good intention justifiable motive. To this genre
belong "private communications" and "fair and true report without any comments or remarks."

Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The
Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the
nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and
of the press. As early as 1918, in United States v. Cañete, this Court ruled that publications which
19 20

are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it
express recognition in the statute punishing libels.

The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde
v. Gutierrez and reiterated in Santos v. Court of Appeals —
21 22

To be more specific, no culpability could be imputed to petitioners for the alleged

offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection of public opinion. The
inevitable and incontestable result has been the development and adoption of the
doctrine of privilege."

The doctrine formulated in these two (2) cases resonates the rule that privileged communications
must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of
free speech as essential to collective self-determination and eschews the strictly libertarian view that
it is protective solely of self-expression which, in the words of Yale Sterling Professor Owen
Fiss, makes its appeal to the individualistic ethos that so dominates our popular and political
23

culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the
penal provision exempting from liability only private communications and fair and true report without
comments or remarks defeats, rather than promotes, the objective of the rule on privileged
communications, sadly contriving as it does, to suppress the healthy effloresence of public debate
and opinion as shining linchpins of truly democratic societies.

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from
the facts.
21

There is no denying that the questioned articles dealt with matters of public interest. In his testimony,
private respondent spelled out the objectives of the conference thus —

. . . The principal conference objective is to come up with a draft of an Omnibus Bill

that will embody a long term land transportation policy for presentation to Congress
in its next regular session in July. Since last January, the National Conference on
Land Transportation (NCLT), the conference secretariat, has been enlisting support
from all sectors to ensure the success of the project.
25
Private respondent likewise testified that the FNCLT was raising funds through solicitation from the
public -

Q: Now, in this first letter, you have attached a budget and it says
here that in this seminar of the First National Conference on Land
Transportation, you will need around One million eight hundred
fifteen thousand pesos, is that right?

A: That was the budget estimate, sir.

Q: How do you intend as executive officer, to raise this fund of your

seminar?

A: Well, from sponsors such as government agencies and private

sectors or organizations as well as individual transport firms and from
individual delegates/participants.26

The declared objective of the conference, the composition of its members and participants, and the
manner by which it was intended to be funded no doubt lend to its activities as being genuinely
imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the
transportation laws of the country and seeking to source its funds for the project from the public at
large cannot dissociate itself from the public character of its mission. As such, it cannot but invite
close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the
activity and of the qualifications and integrity of the personalities behind it.

This in effect is the strong message in New York Times v. Sullivan which the appellate court failed
27

to consider or, for that matter, to heed. It insisted that private respondent was not, properly speaking,
a "public official" nor a "public figure," which is why the defamatory imputations against him had
nothing to do with his task of organizing the FNCLT.

New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of
the bloody rioting in the American South over racial segregation. The then City Commissioner L. B.
Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political
advertisement espousing racial equality and describing police atrocities committed against students
inside a college campus. As commissioner having charge over police actions Sullivan felt that he
was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New
York Times on the basis of what he believed were libelous utterances against him.

The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan
holding that honest criticisms on the conduct of public officials and public figures are insulated from
libel judgments. The guarantees of freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not.

The raison d' être for the New York Times doctrine was that to require critics of official conduct to
guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-
censorship, since would be critics would be deterred from, voicing out their criticisms even if such
were believed to be true, or were in fact true, because of doubt whether it could be proved or
because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the purview of the New York
Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v.
Capulong as —
29

. . . . a person who, by his accomplishments, fame, mode of living, or by adopting a

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

The FNCLT was air undertaking infused with public interest. It was promoted as a joint project of the
government and the private sector, and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in
the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not
validly be the subject of a public comment even if he was not a public official or at least a public
figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public
or general interest, it cannot suddenly became less so merely because a private individual is
involved or because in some sense the individual did not voluntarily choose to become involved. The
public's primary interest is in the event; the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the participant's prior anonymity or notoriety.
30

There is no denying that the questioned articles dealt with matters of public interest. A reading of the
imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore
upon the latter's official conduct and his moral and mental fitness as Executive Director of the
FNCLT. The nature and functions of his position which included solicitation of funds, dissemination
of information about the FNCLT in order to generate interest in the conference, and the management
and coordination of the various activities of the conference demanded from him utmost honesty,
integrity and competence. These are matters about which the public has the right to be informed,
taking into account the very public character of the conference itself.

Concededly, petitioner Borjal may have gone overboard in the language employed describing the
"organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that
he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no
matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be
defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York
Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government
and public officials.
31

The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the
privileged character of a communication destroys the presumption of malice. The onus of proving
32

actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. 33

Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation
of the person defamed, and implies an intention to do ulterior and unjustifiable harm. Malice is bad
34

faith or bad motive. It is the essence of the crime of libel.

35 36

In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in
question petitioner Borjal acted with malice?

Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was
animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written
and published without good motives or justifiable ends. On the other hand, we find petitioner Borjal
to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he perceived to be a public deception.
Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and
reputation, but we do not consider that petitioner Borjal has violated that right in this case nor
abused his press freedom.

Furthermore, to be considered malicious, the libelous statements must be shown to have been
written or published with the knowledge that they are false or in reckless disregard of whether they
are false or not. "Reckless disregard of what is false or not" means that the defendant entertains
37

serious doubt as to the truth of the publication, or that he possesses a high degree of awareness of
38

their probable falsity. 39

The articles subject of the instant case can hardly be said to have been written with knowledge that
these are false or in reckless disregard of what is false or not. This is not to say however that the
very serious allegations of petitioner Borjal assumed by private respondent to be directed against
him are true. But we nevertheless find these at least to have been based on reasonable grounds
formed after the columnist conducted several personal interviews and after considering the varied
documentary evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head
of the Garments and Textile Export Board (GTEB), to expedite the processing and release of the
import approval and certificate of availability of a garment firm in exchange for the monetary
contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo
explaining the procedure of the GTEB in processing applications and clarifying that all applicants
were treated
equally; (b) that Antonio Periquet was designated Chairman of the Executive Committee of the
40

FNCLT notwithstanding that he had previously declined the offer; and, (c) that despite the fact that
41

then President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to
be guest speakers in the conference, their names were still included in the, printout of the
FNCLT. Added to these are the admissions of private respondent that: (a) he assisted Juliano Lim
42

in his application for a quota allocation with the GTEB in exchange for monetary contributions to the
FNCLT; (b) he included the name of then Secretary of Transportation Rainerio Reyes in the
43

promotional materials of the conference notwithstanding the latter's refusal to lend his name to and
participate in the FNCLT; and, (c) he used different letterheads and telephone numbers.
44 45

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly
free expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held -
46 47

A newspaper especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with
minimum fear of being hauled to court by one group or another on criminal or civil
charges for libel, so long as the newspaper respects and keeps within the standards
of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine
requires that liability for defamation of a public official or public figure may not be imposed in the
absence of proof of "actual malice" on the part of the person making the libelous statement.

At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. v. Bustos, that "the interest of society and the maintenance of good
48

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 may be assuaged by the balm of a clear conscience. A public official must not be too thin-
skinned with reference to comments upon his official acts."

The foregoing disposition renders the second and seventh assigned errors moot and academic,
hence, we find no necessity to pass upon them.

We must however take this opportunity to likewise remind media practitioners of the high ethical
standards attached to and demanded by their noble profession. The danger of an unbridled irrational
exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in
willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the
right and the regression of human society into a veritable Hobbesian state of nature where life is
short, nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in
speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and
action, genuine freedom being that which is limned by the freedom of others. If there is freedom of
the press, ought there not also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has
warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a powerful instrument of
injustice."
49

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely
flourishes and operates. For we have always strongly maintained, as we do now, that freedom of
expression is man's birthright -constitutionally protected and guaranteed, and that it has become the
singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is
also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an restricted hunting license to prey on the ordinary citizen. 50

On petitioners' counterclaim for damages, we find the evidence too meager to sustain any award.
Indeed, private respondent cannot be said to have instituted the present suit in abuse of the legal
processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages.
On the contrary, private respondent acted within his rights to protect his honor from what he
perceived to be malicious imputations against him. Proof and motive that the institution of the action
was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to impose a penalty on
the right to litigate, nor should counsel's fees be awarded every time a party wins a suit.51

For, concluding with the wisdom in Warren v. Pulitzer Publishing

Co. —
52

Every man has a right to discuss matters of public interest. A clergyman with his
flock, an admiral with his fleet, a general with his army, a judge with his jury; we are,
all of us, the subject of public discussion. The view of our court has been thus stated:
"It is only in despotisms that one must speak sub rosa, or in whispers, with bated
breath, around the corner, or in the dark on a subject touching the common welfare.
It is the brightest jewel in the crown of the law to speak and maintain the golden
mean between defamation, on one hand, and a healthy and robust right of free public
discussion, on the other.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996
and its Resolution of 12 September 1996 denying reconsideration are, REVERSED and SET ASIDE,
and the complaint for damages against petitioners is DISMISSED. Petitioners' counterclaim for
damages is likewise DISMISSED for lack of merit. No costs. 1âwphi1.nêt

SO ORDERED.

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate
the boundaries of the protected area of the cognate rights to free speech and peaceable
assembly, against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired
1

Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from
the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once
there, and in an open space of public property, a short program would be held. During the course of
2

the oral argument, it was stated that after the delivery of two brief speeches, a petition based on the
3

resolution adopted on the last day by the International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so that it may be delivered
to the United States Ambassador. The march would be attended by the local and foreign participants
of such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the organization to hold a rally. On October
25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General
Eduardo G. Montenegro. It turned out that on October 19, such permit was denied. Petitioner was
5

unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was
due to police intelligence reports which strongly militate against the advisability of issuing such
permit at this time and at the place applied for." To be more specific, reference was made to
6

persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a large number of people is expected to
attend." Respondent Mayor suggested, however, in accordance with the recommendation of the
7

police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or
any other enclosed area where the safety of the participants themselves and the general public may
be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The
Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the
Court granting the mandatory injunction prayed for on the ground that there was no showing of the
existence of a clear and present danger of a substantive evil that could justify the denial of a permit.
On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground
that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is without
prejudice to a more extended opinion." Hence this detailed exposition of the Court's stand on the
9

matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit:
"No law shall be passed abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances." Free speech, like
10

free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. There is to be then no previous restraint on the
11

communication of views or subsequent liability whether in libel suits, prosecution for sedition, or
12 13

action for damages, or contempt proceedings unless there be a clear and present danger of a
14 15

substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right
16

people to meet peaceably for consultation and discussion of matters Of public concern. It is entitled
17

to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on
a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Maicolm had
18

occasion to stress that it is a necessary consequence of our republican institutions and complements
the right of free speech. To paraphrase opinion of Justice Rutledge speaking for the majority of
19

the American Supreme Court Thomas v. Collins, it was not by accident or coincidence that the right
20

to freedom of speech and of the press were toupled in a single guarantee with the and to petition the
rights of the people peaceably to assemble and to petition the government for redress of grievances.
All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation
placed on the exercise of this right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a limitation on the exercise of this right,
so fundamental to the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.
21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was
22

rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate
of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful
means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means
more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult
attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided.
The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will
23

mark the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement, and the greater
the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the constitutional
24

right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To
give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the
high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice
Roberts in Hague v. CIO: Whenever the title of streets and parks may rest, they have immemorially
25

been held in trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such use of
the streets and public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied. The above excerpt was quoted with approval in Primicias v.
26

Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," a 1915
27 28

decision, where this Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is not the
29

only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be
granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy,
hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt
on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that
case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor
shall first be explained from the selectmen of the town or from licensing committee,' was construed
by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States,
in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme
Court, held that 'a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the statute is construed by the
state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with a view to conserving
the public convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, ... " Nor should the point made by Chief
30

Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by
the Constitution, imply the existence of an organized society maintaining public order without which
liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a restriction
of the use of highways in that relation is designed to promote the public convenience in the interest
of all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based
on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a
signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with the Secretary General of the
United Nations on November 15. As of that date then, it was binding on the Philippines. The second
paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate
steps to protect the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity. " The Constitution "adopts the
32

generally accepted principles of international law as part of the law of the land. ..." To the extent
33

that the Vienna Convention is a restatement of the generally accepted principles of international law,
it should be a part of the law of the land. That being the case, if there were a clear and present
34

danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal point would
be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified,
or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown
then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on
the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing
the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the
absence of a clear and present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of
Human Rights. The participants to such assembly, composed primarily of those in attendance at
35

the International Conference for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the
gates of the United States Embassy located at the same street. To repeat, it is settled law that as to
public places, especially so as to parks and streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit, whether an individual or a group. If it were, then
the freedom of access becomes discriminatory access, giving rise to an equal protection question.
The principle under American doctrines was given utterance by Chief Justice Hughes in these
words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is
not as to the auspices under which the meeting is held but as to its purpose; not as to The relations
of the speakers, but whether their utterances transcend the bounds of the freedom of speech which
the Constitution protects." There could be danger to public peace and safety if such a gathering
36

were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty
parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption — especially so where the assembly is scheduled for a specific public — place is that
the permit must be for the assembly being held there. The exercise of such a right, in the language
of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that
it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas and Pagkakaisa
38

ng Manggagawang Pilipino (PMP.) v. Bagatsing, called for application. While the General rule is
39

that a permit should recognize the right of the applicants to hold their assembly at a public place of
their choice, another place may be designated by the licensing authority if it be shown that there is a
clear and present danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was
satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it
should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a
position to cope with such emergency should it arise That is to comply with its duty to extend
protection to the participants of such peaceable assembly. Also from him came the commendable
admission that there were the least five previous demonstrations at the Bayview hotel Area and
Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was
made clear by petitioner, through counsel, that no act offensive to the dignity of the United States
Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all
the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " Assistant
40

Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and
alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice
Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police
protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even
more so than on the other departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to
the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas,
that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There
was no showing, however, that the distance between the chancery and the embassy gate is less
than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application of such
ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there
was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated,
Should it come, then the qualification and observation of Justices Makasiar and Plana certainly
cannot be summarily brushed aside. The high estate accorded the rights to free speech and
peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of
the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in
this case, the proposed march and rally being scheduled for the next day after the hearing, this
Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of
October 25, 1983. It may be noted that the peaceful character of the peace march and rally on
October 26 was not marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national government and the
citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.
Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso that "the
1

right to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that
"the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do, precedence and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph
1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and
present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a
previous restraint or censorship that the licensing authority does not rely solely on his own appraisal
of what public welfare, peace or safety may require. To justify such a limitation there must be proof
of such weight and sufficiency to satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice
Brandeis in his concurring opinion in Whitney vs. California. 2
têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced.
There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *
 Moreover, even imminent danger cannot justify resort to prohibition of these
functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so stringent
that it would be inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence or in destruction
of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to
prevent crimes are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that
it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their right to peaceable assembly and
freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization cited in Fugoso is worth repeating:
3
têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void
upon its face. It does not make comfort or convenience in the use of streets or parks
the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the
participants "staying at a discreet distance, but ever ready and alert to perform their duty." But
should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall
former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, that such instances of "disorderly conduct by individual members of a
4

crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqwâ£

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 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 tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and 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.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this would in
no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire
on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and
suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however
to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked
by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.
AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso that "the
1

right to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that
"the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do, precedence and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph
1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and
present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a
previous restraint or censorship that the licensing authority does not rely solely on his own appraisal
of what public welfare, peace or safety may require. To justify such a limitation there must be proof
of such weight and sufficiency to satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice
Brandeis in his concurring opinion in Whitney vs. California. 2
têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
 the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced.
There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these

functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so stringent
that it would be inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence or in destruction
of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to
prevent crimes are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that
it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their right to peaceable assembly and
freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization cited in Fugoso is worth repeating:
3
têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void
upon its face. It does not make comfort or convenience in the use of streets or parks
the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the
participants "staying at a discreet distance, but ever ready and alert to perform their duty." But
should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall
former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, that such instances of "disorderly conduct by individual members of a
4

crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqwâ£

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 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 tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and 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.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this would in
no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire
on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and
suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however
to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked
by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of
the Court of Appeals, rejecting his appeal from the decision of the Regional Trial Court, dismissing
1

his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable
searches and seizures of the Constitution, as well as its prohibition against deprivation of property
without due process of law. There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor

of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan
Police Force of Manila, seized and confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and indecent and later
burned the seized materials in public at the University belt along C.M. Recto Avenue,
Manila, in the presence of Mayor Bagatsing and several officers and members of
various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of
the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin
and/or restrain said defendants and their agents from confiscating plaintiffs
magazines or from otherwise preventing the sale or circulation thereof claiming that
the magazine is a decent, artistic and educational magazine which is not per
se obscene, and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be
granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction
in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign.
The Court granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor

Bagatsing admitted the confiscation and burning of obscence reading materials on
December 1 and 3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that the said confiscation
and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In opposing the
plaintiffs application for a writ of preliminary injunction, defendant pointed out that in
that anti- smut campaign conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and peddlers who voluntarily
surrendered their reading materials, and that the plaintiffs establishment was not
raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as to "whether or not the defendants
and/or their agents can without a court order confiscate or seize plaintiffs magazine
before any judicial finding is made on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January

3,1984, the plaintiff filed an urgent motion for issuance of another restraining order,
which was opposed by defendant on the ground that issuance of a second
restraining order would violate the Resolution of the Supreme Court dated January
11, 1983, providing for the Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary restraining order shall be
effective only for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in

support of his opposition to the issuance of a writ of preliminary injunction.
 On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned
by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of Preliminary Injunction shall be
resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed
his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and
plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying
the motion for a writ of preliminary injunction, and dismissing the case for lack of
merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art.
IV), and the protection afforded by the constitution against unreasonable searches
and seizure (Sec. 3, [Link]). It must be equally conceded, however, that freedom of
the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art.
201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well
settled is the rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or seizure,
(People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or
movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they
are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.
4

The Court states at the outset that it is not the first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs.
Kottinger, the Court laid down the test, in determining the existence of obscenity, as follows:
5

"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." "Another test," so Kottinger further declares, "is that which
6

shocks the ordinary and common sense of men as an indecency. " Kottinger hastened to say,
7

however, that "[w]hether 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
8

of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When does
a publication have a corrupting tendency, or when can it be said to be offensive to human
sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting
influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave
the final say to a hypothetical "community standard" — whatever that is — and that the question
must supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article
201 of the Revised Penal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit 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
for 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.11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for commercial purposes," the pictures are not
12

entitled to any constitutional protection.

It was People v. Padan y Alova , however, that introduced to Philippine jurisprudence the
13

"redeeming" element that should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an 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. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by "artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes," could the same legitimately lay
15

claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art],
and painters and sculptors might find inspiration," in it, would it cease to be a case of obscenity?
16

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has
permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is
art.

In a much later decision, Gonzalez v. Kalaw Katigbak, the Court, following trends in the United
17

States, adopted the test: "Whether to the average person, applying contemporary standards, the
dominant theme of the material taken as a whole appeals to prurient interest." Kalaw-
18

Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the final
arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of
obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator (with ample sarcasm),
has been as "unstable as it is unintelligible." 19

Memoirs v. Massachusettes, a 1966 decision, which characterized obscenity as one "utterly without
20

any redeeming social value," marked yet another development.

21

The latest word, however, is Miller v. California, which expressly abandoned Massachusettes, and
22

established "basic guidelines," to wit: "(a) whether 'the average person, applying contemporary
23

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."
24

(A year later, the American Supreme Court decided Hamling v. United States which 25

repeated Miller, and Jenkins v. Georgia, yet another reiteration of Miller. Jenkins, curiously,
26

acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film highlighted contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the
problem . Apparently, the courts have assumed that "obscenity" is not included in the guaranty of
27

free speech, an assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here
is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever
do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject
— as in all speech — to regulation in the interests of [society as a whole] — but not in the interest of
a uniform vision of how human sexuality should be regarded and portrayed." 28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their works are considered important literature
today. Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's
29

most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and women that have probably compounded the
problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an
easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment over
the discouraging trend in American decisional law on obscenity as well as his pessimism on whether
or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced
with the problem, which, after all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its
protection. In free expression cases, this Court has consistently been on the side of the exercise of
the right, barring a "clear and present danger" that would warrant State interference and action. But, 30

so we asserted in Reyes v. Bagatsing, "the burden to show the existence of grave and imminent
31

danger that would justify adverse action ... lies on the. . . authorit[ies]."
32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of
such clear and present danger." "It is essential for the validity of ... previous restraint or censorship
33

that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or
safety may require." 34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear
and present danger test." 35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we
may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is,
as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must
come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a
ban and to warrant confiscation of the literature for which mandatory injunction had been sought
below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to
be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search
warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the
state has the right to protect society from pornographic literature that is offensive to public
morals." Neither do we. But it brings us back to square one: were the "literature" so confiscated
36

"pornographic"? That we have laws punishing the author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969)," is also fine, but the question, again, is: Has the petitioner been found guilty under the
37

statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to
seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, We
38

defined police power as "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ." Presidential Decrees Nos. 960 and 969 are,
39

arguably, police power measures, but they are not, by themselves, authorities for high-handed acts.
They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances
(Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the
right against unreasonable searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature,

films, prints, engravings, sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be

destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal,
the obscene/immoral literature, films, prints, engravings, sculptures, paintings or
other materials and articles involved in the violation referred to in Section 1 (referring
to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be
destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may,
within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to
the Secretary of National Defense for review. The decision of the Secretary of
National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended
by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations
of Section I hereof, the penalty as provided herein shall be imposed in the maximum
 period and, in addition, the accessory penalties provided for in the Revised Penal
Code, as amended, shall likewise be imposed . 40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, We counter-
43

minded the orders of the Regional Trial Court authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or
invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an

offense may be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed. Here, no party has been charged, nor are such
charges being readied against any party, under Article 201, as amended, of the Revised Penal
Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free
the accused of all criminal responsibility because there had been no warrant," and that "violation of
45

penal law [must] be punished." For starters, there is no "accused" here to speak of, who ought to
46

be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a
result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of
penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner
rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in
their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;
 3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound
discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search
warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or
not the properties seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or
remedies against abuse of official power under the Civil Code" or the Revised Penal code .
47 48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and
SET ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been
destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and
academic.

SO ORDERED.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

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 news- worthy items of information including election
surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing
§5.4 of RA. 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 be-
fore 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").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

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 be-
fore 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 tile 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.
1âwphi1.nêt

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 RA. 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, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting
the publication of election survey results affecting candidates within the prescribed periods of fifteen
(15) days immediately preceding a national election seven (7) days before a local election. Because
of tile preferred status of tile constitutional rights of speech, expression, and he 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 in enforcement of such restraint.
"'3 There, 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 tile 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 "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 last-minute 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. In 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 - 78,
according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on
the publication of election surveys. At best this survey is inconclusive. It is note worthy 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 content neutral
regulations and is said to have "become canonical in the review of such laws."9 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 Expression 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 related 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 takers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by
referring 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 -
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 §5.4Iays on protected speech. 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 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 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 "dagdag-bawas." 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 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 resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain 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 COMELEC's claim that this
petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the
constitutionality of various election laws, rules, and regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED. 1âwphi1.nêt

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.

FERIA, J.:

This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of
the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel
the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for redress to grievances on the
groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after
mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947,
without prejudice to writing later an extended and reasoned decision.

The right of freedom of speech and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
Constitutions of democratic countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing
their legislative bodies, called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of
the City of Manila, which according to section 2439 of the Administrative Code is the legislative body
of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays,
disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks,
cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to
enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."

Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844
and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace,
and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any
public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with
other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation
engaged in any lawful assembly." And section 1119 provides the following:

"SEC. 1119 Free for use of public — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or exercise during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."

As there is no express and separate provision in the Revised Ordinance of the City regulating the
holding of public meeting or assembly at any street or public places, the provisions of saif section
1119 regarding the holding of any parade or procession in any street or public paces may be applied
by analogy to meeting and assembly in any street or public places.

Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is
vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places of the City of
Manila; and the other is that the applicant has the right to a permit which shall be granted by the
Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with the view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is construe the provisions of the said ordinance to mean that it does not confer
upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the
meeting may be held.

Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that
"no parade or procession upon any ground abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the select men of the town or from licensing committee,"
was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of the
United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the
State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade
or procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as
the statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration, the time, place, and manner of the parade and procession,
with a view to conserving the public convenience and of affording an opportunity to provide proper
policing and are not invested with arbitrary discretion to issue or refuse license, ... ."

We can not adopt the alternative construction or constru the ordinance under consideration as
conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount
to authorizing him to prohibit the use of the streets and other public places for holding of meetings,
parades or processions, because such a construction would make the ordinance invalid and void or
violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the
use of streets, parks, and the other public places, and the word "regulate," as used in section 2444
of the Revised Administrative Code, means and includes the power to control, to govern, and to
restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong
Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it
does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are
executive and one of them is "to comply with and enforce and give the necessary orders for the
faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised
Administrative Code), the ligislative police power of the Municipal Board to enact ordinances
regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets
and other public places, can not be delgated to the Mayor or any other officer by conferring upon him
unregulated discretion or without laying down rules to guide and control his action by which its
impartial execution can be secured or partiality and oppression prevented.

In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under
Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public
streets, the council has no power to ordain that no processions shall be allowed upon the streets
until a permit shall be obtained from the superintendent of police, leaving the issuance of such
permits to his discretion, since the powers conferred on the council cannot be delegated by them.

The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104,
held the following:

"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also,
in substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under it,
when there was nothing in the ordinance to guide or cintrol his action, and it was held void
because "it lays down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or nonaction may
 proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other
improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a legal discretion, to be
exercised within the limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a petty tyrant."

In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons,
or associations or organizations shall march, parade, ride or drive, in ou upon or through the public
streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held by the Supreme Court
of Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held:

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it
is not plainly unconstitutional, as only conferring such power over the subjects referred to as
will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under the constitution than under the
common law."

"It is quite possible that some things have a greater tendency to produce danger and
disorder in cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogther can be granted at all. . . . ."

"It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day or
reasonable hours at night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social demonstrations are resorted to for
the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce
some effect on the public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in furthering them. ... When
people assemble in riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors become punishable. . . ."

"It is only when political, religious, social, or other demonstrations create public disturbances,
or operate as a nuisance, or create or manifestly threaten some tangible public or private
mischief, that the law interferes."

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance
which made it unlawful for any person, society or club, or association of any kind, to parade any of
the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The appellants were members of
the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding
the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on
official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble
and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights
of a free people. The spirit of our free institutions allows great latitude in public parades and
emonstrations whether religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes in politics or religion,
and permit like parades of those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions
violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of
city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation.
The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of
Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg,
which provides: "That it shall be unlawful for any person or persons or association to use the street
of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining
a permit from the Chief of Police of the City of Walsenburg so to do," held the following:

"[1] The power of municipalities, under our state law, to regulate the use of public streets is
conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of
the United States to use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the general, be abridged or
denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S.
Ct., 954, 964; 83 Law, ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S.
Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The
authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good order
upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all,
it cannot be disregarded by the attempted excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
excercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58
S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of the municipal corporation to say who
shall, who shall not, be accorded the privilege of parading on its public streets. No standard
of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief
of police may for any reason which he may entertain arbitrarily deny this privelege to any
group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

"In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."

The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U.
S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of
a permit for a public assembly in or upon the public streets, highways, public parks, or public
buildings of the city and authorizing the director of public safety, for the purpose of preventing riots,
disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the
facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a
permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of
the conclusion said:

". . . Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides
that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes,
cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by the Municipal Board
requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of
the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent
from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in
constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of streets
and other public places has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that
the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same
power, specially if we take into account that its exercise may be in conflict with the exercise of the
same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred,
upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from
ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such
grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other
public places for processions, parades, or meetings, would be null and void, for the same reasons
stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra,
wherein the question involved was also the validity of a similar statute of New Hamsphire. Because
the same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer are
applicable to a law or statute that confers unlimited power to any officer either of the municipal or
state governments. Under our democratic system of government no such unlimited power may be
validly granted to any officer of the government, except perhaps in cases of national emergency. As
stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is
a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a petty tyrant."

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code
apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but
evidently the quotation of said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered.
The popular meeting or assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power
to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have
the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor
by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the
doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist
Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite
rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."

The reason alleged by the respondent in his defense for refusing the permit is, "that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that passions,
specially on the part of the losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the
refusal of the permit can not be given any consideration. As stated in the portion of the decision in
Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience
in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse
the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable
objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and
JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National
Capital Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA
UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity as the President of the
Gregorio Araneta University Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B.
MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University
Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security
Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc
Committee of the Gregorio Araneta University Foundation, respondents.

Honesto N. Salcedo for petitioners.

The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.:

The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free
speech is the grievance alleged by petitioners, students of the Gregorio Araneta University
Foundation, in this certiorari, prohibition and mandamus proceeding. The principal respondents are
Anastacio D. Ramento, Director of the National Capital Region of the Ministry of Education, Culture
and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent
Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal assembly and
suspending them is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of
respondent University. They sought and were granted by tile 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 basketball
court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at
the second 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 formed 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 mandamus with damages against private respondents and before 2

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. Hence this petition.

On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-
parte motion for the immediate issuance of a temporary mandatory order filed by counsel for
petitioners, dated November 12, 1982, the Court Resolved to ISSUE A TEMPORARY
RESTRAINING ORDER enjoining all respondents or any person or persons acting in their place or
stead from enforcing the order of the Ministry of' Education and Culture dated October 20, 1982
finding the petitioners guilty of the charges against them and suspending them for one (1) academic
year with a stern warning that a commission of the same or another offense will be dealt with utmost
severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing
them to enroll, if so minded. 3

Both public and private respondents submitted their comments. Private respondents prayed for the
dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the
temporary restraining order dated November 16, 1982." Public respondent Ramento, on the other
4

hand, through the Office of the Solicitor General, prayed for the dismissal of the petition based on
the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the
MECS did not commit any error, much less abused his discretion, when he affirmed the decision of
respondent University finding petitioners guilty of violations of the provisions of the Manual of
Regulations for Private Schools and the Revised Student's Code of Discipline .and ordering their
suspension for one (1) academic school year. However, since said suspension has not been
enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to
finish their courses, and allowing petitioners Lee and Jalos to continue their schooling, if they so
desire, this proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private
respondents, the case was ready for decision.

This petition may be considered moot and academic if viewed solely from the fact that by virtue of
the temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing
semester, with three of them doing so and with the other two equally entitled to do so. Moreover,
there is the added circumstance of more than a year having passed since October 20, 1982 when
respondent Ramento issued the challenged decision suspending them for one year. Nonetheless,
with its validity having been put in issue, for being violative of the constitutional rights of freedom of
peaceable assembly and free speech, there is need to pass squarely on the question raised.

This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free
speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being
unduly severe. It is true that petitioners held the rally at a place other than that specified in the permit
and continued it longer than the time allowed. Undeniably too, they did disturb the classes and
caused the work of the non-academic personnel to be left undone. Such undesirable consequence
could have been avoided by their holding the assembly in the basketball court as indicated in the
permit. Nonetheless, suspending them for one year is out of proportion to their misdeed. The petition
must be granted and the decision of respondent Ramento nullified, a much lesser penalty being
appropriate.

1. As is quite clear from the opinion in Reyes v. Bagatsing, the invocation of the right to freedom of
6

peaceable assembly carries with it the implication that the right to free speech has likewise been
disregarded. Both are embraced in the concept of freedom of expression which is Identified with the
liberty to discuss publicly and truthfully, any matter of public interest without censorship or
punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and
present danger of a substantive evil that the state has a right to prevent." 7

2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public
park to the gates of the united States Embassy, hardly two blocks away, where in an open space of
public property, a short program would be held. Necessarily then, the question of the use of a public
park and of the streets leading to the United States Embassy was before this Court. We held that
streets and parks have immemorially been held in trust for the use of the public and have been used
for purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8

3. The situation here is different. The assembly was to be held not in a public place but in private
premises, property of respondent University. There is in the Reyes opinion as part of the summary
this relevant excerpt: "The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is
required." Petitioners did seek such consent. It was granted. According to the petition: "On August
9

27, 1982, by virtue of a permit granted to them by the school administration, the Supreme Student
Council where your petitioners are among the officers, held a General Assembly at the VMAS
basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent
University as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to
peaceable assembly and its cognate right of free speech.

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, 12 "shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13 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 formulation in the 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 an inevitable part of the process of attending school; it is also an important 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." 14

5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to
peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their continuing their demonstration in a
place other than that specified in the permit for a longer period and their making use of megaphones therein, resulting in the disruption of
classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly.

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 views 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 (iisang malaking suliranin.") 15 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."). 16 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."

7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to
peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly before the
municipal council of San Carlos, Occidental Negros, started its session, some five hundred residents of the municipality assembled near the
municipal building, and, upon the opening of the session, a substantial number of such persons barged into the council chamber, demanding
that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed
substitutes. The municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was
fairly orderly and well-behaved except in so far as their pressing into the council chamber during a session of that body could be called
disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno Apurado and many
other participants were indicted and convicted of sedition in that they allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "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 form of punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the
line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A careful
reading of this decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held
by the students under the leadership of petitioners.

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. On those facts, however, an
20

admonition, even a censure-certainly not a suspension-could be the appropriate penalty. Private

respondents could and did take umbrage at the fact that in view of such infraction considering the
places where and the time when the demonstration took place-there was a disruption of the classes
and stoppage of work of the non-academic personnel. They would not be unjustified then if they did
take a much more serious view of the matter. Even then a one-year period of suspension is much
too severe. While the discretion of both respondent University and respondent Ramento is
recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept
of proportionality between the offense connoted and the sanction imposed is not followed, an
element of arbitrariness intrudes. That would give rise to a due process question. To avoid this
constitutional objection, it is the holding of this Court that a one-week suspension would be
punishment enough.

9. One last matter. The objection was raised that petitioners failed to exhaust administrative
remedies. That is true, but hardly decisive. Here, a purely legal question is presented. Such being
the case, especially so where a decision on a question of law is imperatively called for, and time
being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What
cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free
speech are invoked by petitioners. Moreover, there was, and very likely there will continue to be in
the future, militancy and assertiveness of students on issues that they consider of great importance,
whether concerning their welfare or the general public. That they have a right to do as citizens
entitled to all the protection in the Bill of Rights.

10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, for this
21

Court to lay down the principles for the guidance of school authorities and students alike. The rights
to peaceable assembly and free speech are guaranteed students of educational institutions.
Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not
to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear
and present danger to a substantive evil that the state, has a right to present. As a corollary, the
utmost leeway and scope is accorded the content of the placards displayed or utterances made. The
peaceable character of an assembly could be lost, however, by an advocacy of disorder under the
name of dissent, whatever grievances that may be aired being susceptible to correction through the
ways of the law. If the assembly is to be held in school premises, permit must be sought from its
school authorities, who are devoid of the power to deny such request arbitrarily or unreasonably. In
granting such permit, there may be conditions as to the time and place of the assembly to avoid
disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento
imposing a one-year suspension is nullified and set aside. The temporary restraining order issued by
this Court in the resolution of November 18, 1982 is made permanent. As of that date, petitioners
had been suspended for more than a week. In that sense, the one-week penalty had been served.
No costs.

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, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER

DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, LEA POCONG, ENRICO RAYMUNDO,
MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA
ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES,
ECHELITA CALMA, JESUSA CARAIG, CECILIA 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 GARCENILA, CORAZON GONZALES, VIOLETA
GUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA,
TERESITA LAGUMBAY, TERESTTA 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 FETAL ALVERO, 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.

BELLOSILLO, J.:

These consolidated petitions are among several petitions filed with this Court arising from the
1

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. Cariño of the Department of Education, Culture and Sports (DECS), in decisions
issued by him which uniformly read —

This is a mutu-propio administrative complaint separately filed by the Secretary of

Education, Culture and Sports against the following public school teachers . . . .
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 in
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
Septmber 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, 114435-5506, and 116312-19, which were all referred to
2 3 4

the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 and there re-docketed
5

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 rendered a joint decision
6

in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of merit. The appellate court ruled
7

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, and Sec. 32, Rule XIV of the Omnibus
8

Rules Implementing Book V of E. O. No. 292. Their motion for reconsideration having been denied
on 15 May 1997, petitioners then appealed by certiorari to this Court on 26 June 1997, docketed as
9

G.R. No. 129221.

Meanwhile, on 24 April 1998 the Tenth Division of the Court of

Appeals rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise
10

dismissing the petitions for lack of merit. The appellate court rejected petitioners' contention that
11

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. wherein this Court ruled
12

that the public school teachers' mass actions of September/October 1990 were "to all intents and
purposes a strike . . . 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' [Link] 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, petitioners then filed a petition for review on certiorari with this Court
13

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. Stare decisis et non quieta
14

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., and Alliance of Concerned Teachers v. Hon. Isidro Cariño that the mass actions of
16 17

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, we denied the
18

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., invoked by petitioners, we have likewise already ruled in the Rolando Gan case that the
20 21

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 by denying a similar petition filed
23

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 we added that the persistent refusal of
24

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 we resolved the issue in the negative on the ground that the
25

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. Hence, being legal, the
26

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 and Bautista v. Peralta being cases which involved the unjustified immediate execution of
27 28

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 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. Being found liable for a lesser offense is not equivalent to
29

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 we again denied the claim for back wages of teachers found to have given
31

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 backwages 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.

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,

FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO)
is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills
Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and
members of the petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang
on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the
workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts
(from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties — parties —

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
 excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV: NO LOCKOUT — NO STRIKE'. All those who will not follow
this warning of the Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized
for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners
and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6
in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24,
rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief
Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4,
1969; that the said mass demonstration was a valid exercise of their constitutional freedom of
speech against the alleged abuses of some Pasig policemen; and that their mass demonstration
was not a declaration of strike because it was not directed against the respondent firm (Annex "D",
pp. 31-34, rec.)

After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining
in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly
responsible for perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59,
rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is
contrary to law and the evidence, as well as asked for ten (10) days within which to file their
arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp.
57-60, rec. )

In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17
(should be September 15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September
27, 1969, within which to file their motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo, which held among others, that a motion for extension of the five-day period for the filing of a
1

motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp.
61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary
period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on
October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released on October 24,
1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of
Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion
for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an
appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the
order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration
on time was due to excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said
president and clerk (Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated October 9, 1969,
herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L",
pp. 88-89, rec.).

There is need of briefly restating basic concepts and principles which underlie the issues posed by
the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person." 2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no patience with general principles." 3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections." Laski proclaimed that "the happiness of the individual, not the well-being of the State,
4
was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits
to the authority it was entitled to exercise." 5

(3) The freedoms of expression and of assembly as well as the right to petition are included among
the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the majority who refuse to
listen. And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the
6

liberties of one are not safe unless the liberties of all are protected.
7

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property
rights is recognized. Because these freedoms are "delicate and vulnerable, as well as supremely
8

precious in our society" and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity."9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political
institutions; and such priority "gives these liberties the sanctity and the sanction not permitting
10

dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose —
that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights. On the other hand, a constitutional or valid infringement
12

of human rights requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been stressed in the
main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the
opinion in Imbong vs. Ferrer. It should be added that Mr. Justice Barredo in Gonzales vs.
13

Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan, believes that the freedoms of speech and of the press as well as of peaceful assembly
14

and of petition for redress of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall be
governed," even as Mr. Justice Castro relies on the balancing-of-interests test. Chief Justice
15 16

Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. —
whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger. 17

II
The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage
of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective
bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and
tested by foregoing principles governing a democratic society, such conclusion cannot be sustained.
The demonstration held petitioners on March 4, 1969 before Malacañang was against alleged
abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of
their right of assembly and petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what they believe
were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect
herein petitioner Union and its members fro the harassment of local police officers. It was to the
interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its employees with the local
police. Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the
local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its
own employees all the more weakened the position of its laborers the alleged oppressive police who
might have been all the more emboldened thereby subject its lowly employees to further indignities.

In seeking sanctuary behind their freedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the
Constitution — the untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their
property rights. Such apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees' pathetic situation was a stark
reality — abused, harassment and persecuted as they believed they were by the peace officers of
the municipality. As above intimated, the condition in which the employees found themselves vis-a-
vis the local police of Pasig, was a matter that vitally affected their right to individual existence as
well as that of their families. Material loss can be repaired or adequately compensated. The
debasement of the human being broken in morale and brutalized in spirit-can never be fully
evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly
and of petition for redress of grievances — over property rights has been sustained. Emphatic18

reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and
worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes
Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the dismissal from employment of
the demonstrating employees, stretches unduly the compass of the collective bargaining agreement,
is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the
constitutional guarantees of free expression, of peaceful assembly and of petition. 19

The collective bargaining agreement which fixes the working shifts of the employees, according to
the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration against police abuses during
working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have been legally
enjoined by any court, such an injunction would be trenching upon the freedom expression of the
workers, even if it legally appears to be illegal picketing or strike. The respondent Court of
20

Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration
of a strike "as the same not rooted in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M.
to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely
the complete unity of the Union members as well as their total presence at the demonstration site in
order to generate the maximum sympathy for the validity of their cause but also immediately action
on the part of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression. If
21

demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will enervate their position and abet continued
alleged police persecution. At any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made arrangements to counteract or prevent
whatever losses it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the
company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration held against the
Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is
as unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of
the respondent firm to permit all its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to
engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police
abuses, denial of which was interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged police indignities. The
insistence on the part of the respondent firm that the workers for the morning and regular shift
should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal protection as
the concerted action of employees in giving publicity to a letter complaint charging bank president
with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban
employees. We further ruled in the Republic Savings Bank case, supra, that for the employees to
23

come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875,
"it is not necessary that union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests.
24

As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court
dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is
an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who
without previous leave of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more important to them because they
had the courage to proceed with the demonstration, despite such threat of dismissal. The most that
could happen to them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day salary hoping that their demonstration would
bring about the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right to petition
for redress.

Because the respondent company ostensibly did not find it necessary to demand from the workers
proof of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that
the evidence of such abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local police officers
involved.

On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not
present evidence as to whether it lost expected profits for failure to comply with purchase orders on
that day; or that penalties were exacted from it by customers whose orders could not be filled that
day of the demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products were
damaged due to absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for unrealized profits or
damages it might have sustained by reason of the absence of its workers for only one day.

IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the
workers for proceeding with the demonstration and consequently being absent from work,
constitutes a denial of social justice likewise assured by the fundamental law to these lowly
employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social
justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall
afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is
under obligation at all times to give meaning and substance to these constitutional guarantees in
favor of the working man; for otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations
is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental
agency designed therefor, failed to implement this policy and failed to keep faith with its avowed
mission — its raison d'etre — as ordained and directed by the Constitution.

It has been likewise established that a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a
criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the
remedy to obtain the release of an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-incrimination; or who is denied the
25

right to present evidence in his defense as a deprivation of his liberty without due process of
law, even after the accused has already served sentence for twenty-two years.
26 27

Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights and
aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the
municipal police. Having violated these basic human rights of the laborers, the Court of Industrial
Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a
nullity. Recognition and protection of such freedoms are imperative on all public offices including the
courts as well as private citizens and corporations, the exercise and enjoyment of which must not
28

be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a
purely delegate legislative power, when even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights. There is no time limit to the exercise of the
freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised
when exigent and expedient whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by
rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for
time. And in such a contest between an employer and its laborer, the latter eventually loses because
he cannot employ the best an dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal
services. -a 28

VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ
should filed within five (5) days from notice thereof and that the arguments in support of said motion
shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16).
As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations
pursuant to a legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim
that they could have filed it on September 28, 1969, but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of
the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail
over constitutional rights? The answer should be obvious in the light of the aforecited cases. To
accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and regulations, but
also does violence to natural reason and logic. The dominance and superiority of the constitutional
right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed.
Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or
strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is
beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re
hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based
on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and
facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which
to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations
(Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of
such supporting arguments counted from the filing of the motion for reconsideration. Herein
petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the reglementary period
(Annex "J", pp. 74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or
where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided
for by the Court of Industrial Relations rules, the order or decision subject of -a reconsideration
29

becomes final and unappealable. But in all these cases, the constitutional rights of free expression,
free assembly and petition were not involved.

It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in
such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the determination of the constitutional issue is necessary to
a decision of the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made. It is thus seen that a procedural rule of
30

Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the
procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the institution of the unfair labor
practice charged against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is
a most compelling reason to deny application of a Court of Industrial Relations rule which impinges
on such human rights. -a30

It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules
or to except a particular case from its operation, whenever the purposes of justice require." -b Mr.
30

Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. -c reiterated this principle
30

and added that

Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to do
justice, in any case, without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this Court may treat an
appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of jurisdiction. We can then
and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down in
an appeal acts without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a court a quo which cannot
be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do
not entertain, on whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses, this Court would
still be on firm legal grounds should it choose to reverse said decision here and
now even if such errors can be considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). -d30

Insistence on the application of the questioned Court industrial Relations rule in this particular case
at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein
laborers, whose basic human freedoms, including the right to survive, must be according supremacy
over the property rights of their employer firm which has been given a full hearing on this case,
especially when, as in the case at bar, no actual material damage has be demonstrated as having
been inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the Constitution renders
more imperative the suspension of a Court of Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the
organic law. It should be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations rules with
reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.
charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo,
speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., -e thus:
30

As to the point that the evidence being offered by the petitioners in the motion for
new trial is not "newly discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion is not binding upon the
Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall adopt its, rules or procedure and shall have such
other powers as generally pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or controversy and in
exercising any duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard to technicalities
or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be deemed necessary
or expedient for the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We
believe that this provision is ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners constitute a minority was
founded on fact, without regard to the technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case
is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to them by the fundamental law, simply because
their counsel — erroneously believing that he received a copy of the decision on September 23,
1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to be instruments
of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence
on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, -f Stated:
30

As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315
[1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil.
Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant consideration from courts." (Ibid.,
p, 322.) To that norm, this Court has remained committed. The late Justice Recto in
 Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a
litigant in altar of sophisticated technicalities with impairment of the sacred principles
of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not to
be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... -g
30

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the
dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh
for a one-day absence from work. The respondent Court itself recognized the severity of such a
sanction when it did not include the dismissal of the other 393 employees who are members of the
same Union and who participated in the demonstration against the Pasig police. As a matter of fact,
upon the intercession of the Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm
insinuates that not all the 400 or so employee participated in the demonstration, for which reason
only the Union and its thirteen (13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in
operation that day and did not sustain any damage.

The appropriate penalty — if it deserves any penalty at all — should have been simply to charge
said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the
petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their
wages for their daily sustenance as well as that of their respective families aside from the fact that it
is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of Government, but from men of goodwill — good men who
allow their proper concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.

... The Motives of these men are often commendable. What we must remember,
however, is that preservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppress or be a reformer or an outlaw.
The only protection against misguided zeal is a constant alertness of the infractions
of the guarantees of liberty contained in our Constitution. Each surrender of liberty to
 the demands of the moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must be observe. 31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete lack of
sympathetic understanding of the plight of its laborers who claim that they are being subjected to
indignities by the local police, It was more expedient for the firm to conserve its income or profits
than to assist its employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency
resorted to by the respondent company assaulted the immunities and welfare of its employees. It
was pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., where the petitioner
32

Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to
the Bank president demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank employees." Therein,
thru Mr. Justice Castro, We ruled:

It will avail the Bank none to gloat over this admission of the respondents. Assuming
that the latter acted in their individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted activity for mutual
aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some
members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act. It is not necessary
that union activity be involved or that collective bargaining be contemplated. (Annot.,
6 A.L.R. 2d 416 [1949]).

xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right
of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB
324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine
Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
 undenied. The Industrial Peace Act does not touch the normal exercise of the right of
the employer to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair
labor practice within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president
no less, such recognition and protection for free speech, free assembly and right to petition are
rendered all the more justifiable and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of
their separation from the service until re instated, minus one day's pay and whatever earnings they
might have realized from other sources during their separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

Zaldivar, Castro, Fernando and Esguerra, JJ., concur.

Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the
decision under review is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation
existing and operating under and by virtue of the laws of the Philippines with
corporate address at 666 Muelle de Binondo, Manila, which is the employer of
respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM — 2:00 PM workers as well
as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration
and stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV "NO LOCKOUT — NO STRIKE". All those who will not follow
this warning of the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
 plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the
process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly those in the

first shift, in violation of the existing collective bargaining agreement and without filing
the necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby ordered to cease
and desist from further committing the same and its representatives namely:
respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act,
are hereby considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on
September 23, 1969, there seems to be no serious question that they were actually served therewith
on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their
Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day.
(See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were
notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners'
motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided
for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were
filed five (5) days after the expiration of the period therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent private firm,
namely, that in view of the failure of petitioners to file not only their motion for reconsideration but
also their arguments in support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations wherein it was ruled that:
1

August 6, 1963. Petitioner received a copy of the decision of the then Associate
Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this
opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its arguments in support
of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion
seeking reconsideration.

September 16, 1963. CIR en banc resolved to dismiss the motion for
reconsideration. Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment — not merely an interlocutory
order — there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in
ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and
thereby rendered an incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report would still have
to be submitted to the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay in the decision
did not make it incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no
longer, be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this Court both
answer the question in the affirmative.
Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment
of the trial judge must do so within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows Section 16 which says that
the motion must be submitted with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes
a movant that "(f)ailure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out of the answer
and/or the supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in support of said motion
were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject of
reconsideration comes final. And so also, where the arguments in support of the
motion for reconsideration are filed beyond the ten-day reglementary period, the pre
forma motion for reconsideration although seasonably filed must nevertheless be
denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time, the order or
decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court
in the case before us. On August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider — without
arguments in support thereof — of August 12 was filed on time. For, August 11, the
end of the five-day reglementary period to file a motion for reconsideration, was a
Sunday. But, actually, the written arguments in support of the said motion were
submitted to the court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed out of time —
five (5) days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of
time within which to present its arguments in support of its motion. Counsel in his
petition before this Court pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not enable him to do
so within the stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the
motion for expansion of time was filed only on August 21, that is, one day before the
due date which is August 22. It was petitioner's duty to see to it that the court act on
this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the disposition of

cases", CIR "has a standing rule against the extension of the ten-day period for filing
 supporting arguments". That no-extension policy should have placed petitioner on
guard. It should not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the arguments only on
August 27, 1953, knowing full well that by that time the reglementary period had
expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing
the motion for reconsideration on the ground that the supporting arguments were
filed out of time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review
the same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way
modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances,
so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners
themselves and in the light of its attendant circumstances, this case does not call for the resolution
of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly
when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest
attention of this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be protected by the
courts only when their jurisdiction over the subject matter is unquestionably established and the
applicable rules of procedure consistent with substantive and procedural due process are observed.
No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often
fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a possible denial of due process. I have not come
across any instance, and none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the ground that the same has
the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or
reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does
uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres which, in principle,
2

served as its precedent, for the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence
to establish his defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases are a far cry from the
one now before Us. Here, petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations
and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to
such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned decision of the
respondent court as being null and void because it sanctioned a denial of a valued constitutional
liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the
Motion for Reconsideration filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and
narrow technical rules of procedure without taking into account justice, equity and
substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in
their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to

peaceably assemble and petition the government for redress of grievances constitute
bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the
union was guilty of bargaining in bad faith meriting the dismissal of the persons
allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one
way or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad
faith and consequently dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on record; that the dismissal of
leaders was discriminatory.
As a result of exercising the constitutional rights of freedom to assemble and petition
the duly constituted authorities for redress of their grievances, the petitioners were
charged and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out
by the records. It was not even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the "no-lockout — no
strike" clause of the collective bargaining agreement. However, this allegation and
proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:

'The company alleges that the walkout because of the demonstration

is tantamount to a declaration of a strike. We do not think so, as the
same is not rooted in any industrial dispute although there is a
concerted act and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in

bad faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work
will not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the
first shift shall be excluded in the demonstration is not tantamount to bargaining in
bad faith because the company knew that the officers of the union belonged to the
first shift, and that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its officers to lead and
join the demonstration because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the
CBA is a conclusion of facts, opinionated and not borne by any evidence on record.
The demonstration did not practically change the terms or conditions of employment
because it was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in bad faith, when
upon representation of the Bureau of Labor not to dismiss the employees
demonstrating, the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge and consequently
dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in
the demonstration and yet, the respondent court selected the eight officers to be
dismissed from the union thus losing their status as employees of the respondent
company. The respondent court should have taken into account that the company's
action in allowing the return of more or less three hundred ninety two (392)
 employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the
opinion stated in the decision by the court, while there is a collective bargaining
agreement, the union cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a
bad precedent because it will appear that the rights of the union is solely dependent
upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88,
33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in
bad faith and consequently lost their status as employees of the respondent
company did not meet the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on
"illegal strike" and therefore in violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly
submit, that the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings, petitioners
should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the
petitioners as having "bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble

peaceably to air grievances against the duly constituted authorities as guaranteed in
our Constitution is subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These
fundamental rights of the petitioners were not taken into consideration in the
deliberation of the case by the respondent court;
Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due
process. They do not posit that the decision of the industrial court is null and void on that
constitutional ground. True it is that they fault the respondent court for having priced the provisions
of the collective bargaining agreement herein involved over and above their constitutional right to
peaceably assemble and petition for redress of their grievances against the abuses of the Pasig
police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners themselves consider the
alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the
main opinion projects. For this Court to roundly and indignantly condemn private respondent now for
the grievous violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been duly presented
to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be heard in regard to such
supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by

finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did
err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot
rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in
the premises. The unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were allowed to reopen them at any
time in the future".
3

I only have to add to this that the fact that the error is in the interpretation, construction or application
of a constitutional precept not constituting a denial of due process, should not make any difference.
Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an
ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms.
In both instances, there is injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments. I dare say this must be the
reason why, as I have already noted, the main opinion does not cite any constitutional provision, law
or rule or any judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render
valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges
and Universities vs. Secretary of Education, following Santiago vs. Far Eastern Broadcasting, is that
4 5

"it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous
resolution by a court of a constitutional issue not amounting to a denial of due process renders its
judgment or decision null and void, and, therefore, subject to attack even after said judgment or
decision has become final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the
fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only
6

to realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the
manner provided in the law of the Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them, those governing
appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a
judgment of the industrial court is already final and executory, this Court would be devoid of power
and authority to review, much less alter or modify the same, absent any denial of due process or
fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving
the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in
this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of
Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case, We have
no choice but to follow, that is, that in view of reconsideration but even their argument supporting the
same within the prescribed period, "the judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their
judgments are made contingent on the correctness thereof from the constitutional standpoint, and
that in truth, whether or not they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as changeable as the
members themselves are changed, I cannot conceive of anything more pernicious and destructive to
a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be
set aside or reopened in instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code. And just to emphasize the policy of the law of
7

respecting judgments once they have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors, it is only when the fraud is extrinsic and not
8

intrinsic that final and executory judgments may be set aside, and this only when the remedy is
9

sought within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become
final, the winning party be not, through a mere subterfuge, deprived of the fruits of
the verdict. Courts must therefore guard against any scheme calculated to bring
about that result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
 object for which courts were instituted was to put an end to controversies. To fulfill
this purpose and to do so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus
keep causes ever within his power, to determine and redetermine them term after
term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize that my position in
this opinion does not detract a whit from the soundness, authority and binding force
of existing doctrines enjoining any such modifications. The public policy of
maintaining faith and respect in judicial decisions, which inform said doctrines, is
admittedly of the highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of Judge Tengco but the
decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have
been, and, by opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of this Court, not
that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court,
wherein the Court refused to be constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those decisions, some of which were penned
by me. I am certain, however, that in none of those precedents did this Court disturb a judgment
already final and executory. It too obvious to require extended elucidation or even reference any
precedent or authority that the principle of immutability of final judgments is not a mere technicality,
and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes
far as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations
Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore
is beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-
hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial Relations Rule insofar as circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the
date on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six (6) copies, duly verified
under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments
supporting the same. If the arguments can not be submitted simultaneously with said
motions, upon notice Court, the movant shall file same within ten (10) days from the
date of the filing of his motion for reconsideration. The adverse party shall also file
his answer within ten (10) days from the receipt by him of a copy of the arguments
submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal
of the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings
in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more
than a pro-forma motion for reconsideration without any argument or lengthy discussion and with
barely a brief statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws and authorities, in
the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is
to apprise everyone concerned within the shortest possible time that a reconsideration is to sought,
and thereby enable the parties concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best interests of justice and concerned
that the attitude of each party at every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In
fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

 COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with
law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective

arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the
Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be

admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such a motion is to
me simply incomprehensible. What worse in this case is that petitioners have not
even taken the trouble of giving an explanation of their inability to comply with the
rule. Not only that, petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered for such delay is
that both the President of the Union and the office clerk who took charge of the
matter forgot to do what they were instructed to do by counsel, which, according to
this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural requirements prescribed by
the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such nonchalance
and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation
they have the effect of either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final judgment is deprived of
jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed
period. On the other hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right
of a party may be lost by prescription, and be has no reason to complain because public policy
demands that rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of
petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the
purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have
grave doubts as to whether we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in
order to hasten the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their
failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary
period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake
committed by the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in
brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite
previous instructions and of the said office employee having also coincidentally forgotten "to do the
work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy
at all can be evoked these allegations, for, under probably more justification circumstances, this
Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for
his failure to perfect in due time appeal from the judgment of the Municipal Court,
that counsel's clerk forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical acceptance of this kind
of common place excuses, in the face of the Supreme Court's repeated rulings that
they are neither credible nor constitutive of excusable negligence (Gaerlan vs.
Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a grave abuse of
discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the
present case has already become final and executory, nay, not without the fault of the petitioners,
hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond
recall, I vote to dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court
ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in
bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding
that it concededly was not a declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly constituted grave abuse of
discretion in fact and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike"
clause as would warrant the union leaders' dismissal, since as found by respondent court itself the
mass demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having
been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union president should likewise be set aside as a
manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration due to such negligence — which
was not acted upon by respondent court — should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their summary dismissal from
employment, simply because they sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having included the first shift workers in the
mass demonstration against its wishes was but an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional
injunction to afford protection to labor be given true substance and meaning. No person may be
deprived of such basic rights without due process — which is but "responsiveness to the supremacy
of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in
the judgment for petitioners as set forth in the main opinion.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the
decision under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation

existing and operating under and by virtue of the laws of the Philippines with
corporate address at 666 Muelle de Binondo, Manila, which is the employer of
respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM — 2:00 PM workers as well
as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM
in the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
 L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration
and stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked.
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV "NO LOCKOUT — NO STRIKE". All those who will not follow
this warning of the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the
process paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly those in the

first shift, in violation of the existing collective bargaining agreement and without filing
 the necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby ordered to cease
and desist from further committing the same and its representatives namely:
respondent Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Monsod who are directly responsible for perpetrating this unfair labor practice act,
are hereby considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on
September 23, 1969, there seems to be no serious question that they were actually served therewith
on September 22, 1969. In fact, petitioners admitted this date of notice in paragraph 2 of their
Petition for Relief dated October 30, 1969 and filed with the industrial court on the following day.
(See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were
notified of the court's decision, that petitioners filed their motion for reconsideration with the industrial
court; as it is also not disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners'
motion for reconsideration was filed two (2) days after the lapse of the five (5) day period provided
for the filing thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were
filed five (5) days after the expiration of the period therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent private firm,
namely, that in view of the failure of petitioners to file not only their motion for reconsideration but
also their arguments in support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering and issuing its impugned
order of October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision
of this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations wherein it was ruled that:
1

August 6, 1963. Petitioner received a copy of the decision of the then Associate
Judge Arsenio I. Martinez, the dispositive part of which was set forth earlier in this
opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its arguments in support
of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion
seeking reconsideration.

September 16, 1963. CIR en banc resolved to dismiss the motion for
reconsideration. Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment — not merely an interlocutory
order — there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in
ordering the Chief of the Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its judicial functions and
thereby rendered an incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report would still have
to be submitted to the Industrial Court for its approval, by the very terms of the order
itself. That there was no specification of the amount of overtime pay in the decision
did not make it incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no
longer, be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this Court both
answer the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment
of the trial judge must do so within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows Section 16 which says that
the motion must be submitted with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days from the date of
the filing of his motion for reconsideration.' Section 17 of the same rules admonishes
a movant that "(f)ailure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking out of the answer
and/or the supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in support of said motion
were or were not filed on time. Pangasinan Employees Laborers & Tenants
Association (PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject of
 reconsideration comes final. And so also, where the arguments in support of the
motion for reconsideration are filed beyond the ten-day reglementary period, the pre
forma motion for reconsideration although seasonably filed must nevertheless be
denied. This in essence is our ruling in Local 7, Press & Printing Free Workers
(FFW) vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is denied upon the
ground that the arguments in support thereof were filed out of time, the order or
decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court
in the case before us. On August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider — without
arguments in support thereof — of August 12 was filed on time. For, August 11, the
end of the five-day reglementary period to file a motion for reconsideration, was a
Sunday. But, actually, the written arguments in support of the said motion were
submitted to the court on August 27. The period from August 12 to August 27, is a
space of fifteen (15) days. Surely enough, said arguments were filed out of time —
five (5) days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of
time within which to present its arguments in support of its motion. Counsel in his
petition before this Court pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not enable him to do
so within the stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the
motion for expansion of time was filed only on August 21, that is, one day before the
due date which is August 22. It was petitioner's duty to see to it that the court act on
this motion forthwith or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the disposition of

cases", CIR "has a standing rule against the extension of the ten-day period for filing
supporting arguments". That no-extension policy should have placed petitioner on
guard. It should not have simply folded its arms, sit by supinely and relied on the
court's generosity. To compound petitioner's neglect, it filed the arguments only on
August 27, 1953, knowing full well that by that time the reglementary period had
expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing
the motion for reconsideration on the ground that the supporting arguments were
filed out of time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review
the same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way
modified, much less revoked or reversed by this Court, the main opinion has chosen not only to go
into the merits of petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances,
so scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners
themselves and in the light of its attendant circumstances, this case does not call for the resolution
of any constitutional issue. Admittedly, the invocation of any constitutional guarantee, particularly
when it directly affects individual freedoms enshrined in the bill of rights, deserves the closest
attention of this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be protected by the
courts only when their jurisdiction over the subject matter is unquestionably established and the
applicable rules of procedure consistent with substantive and procedural due process are observed.
No doubt no constitutional right can be sacrificed in the altar of procedural technicalities, very often
fittingly downgraded as niceties but as far as I know, this principle is applied to annul or set aside
final judgments only in cases wherein there is a possible denial of due process. I have not come
across any instance, and none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the ground that the same has
the effect of sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or
reason of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally
established and accepted as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers no
rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned almost in passing, does
uphold the proposition that "relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs. Homeres which, in principle,
2

served as its precedent, for the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be allowed to present evidence
to establish his defense after his demurrer to the People's evidence was denied.

As may be seen, however, the constitutional issues involved in those cases are a far cry from the
one now before Us. Here, petitioners do not claim they were denied due process. Nor do they
pretend that in denying their motion for reconsideration, "the respondent Court of Industrial Relations
and private firm trenched upon any of their constitutional immunities ...," contrary to the statement to
such effect in the main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned decision of the
respondent court as being null and void because it sanctioned a denial of a valued constitutional
liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the
Motion for Reconsideration filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and
narrow technical rules of procedure without taking into account justice, equity and
substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in
their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to

peaceably assemble and petition the government for redress of grievances constitute
bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the
union was guilty of bargaining in bad faith meriting the dismissal of the persons
allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one
way or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad
faith and consequently dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on record; that the dismissal of
leaders was discriminatory.

As a result of exercising the constitutional rights of freedom to assemble and petition

the duly constituted authorities for redress of their grievances, the petitioners were
charged and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out
by the records. It was not even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of the "no-lockout — no
strike" clause of the collective bargaining agreement. However, this allegation and
proof submitted by the respondent company were practically resolved when the
respondent court in the same decision stated categorically:

'The company alleges that the walkout because of the demonstration

is tantamount to a declaration of a strike. We do not think so, as the
same is not rooted in any industrial dispute although there is a
concerted act and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in

bad faith is not tenable because:
First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work
will not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the
first shift shall be excluded in the demonstration is not tantamount to bargaining in
bad faith because the company knew that the officers of the union belonged to the
first shift, and that the union cannot go and lead the demonstration without their
officers. It must be stated that the company intends to prohibit its officers to lead and
join the demonstration because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the
CBA is a conclusion of facts, opinionated and not borne by any evidence on record.
The demonstration did not practically change the terms or conditions of employment
because it was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in bad faith, when
upon representation of the Bureau of Labor not to dismiss the employees
demonstrating, the company tacitly approved the same and yet while the
demonstration was in progress, the company filed a ULP Charge and consequently
dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in
the demonstration and yet, the respondent court selected the eight officers to be
dismissed from the union thus losing their status as employees of the respondent
company. The respondent court should have taken into account that the company's
action in allowing the return of more or less three hundred ninety two (392)
employees/members of the union is an act of condonation and the dismissal of the
eight (8) officers is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958). Seemingly, from the
opinion stated in the decision by the court, while there is a collective bargaining
agreement, the union cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to demonstrate and the
statutory rights of a union to strike as provided for in Republic Act 875. This creates a
bad precedent because it will appear that the rights of the union is solely dependent
upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88,
33 S. Ct. 185, 57 Law ed. 431.) Only by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February
27, 1940.)
 The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in
bad faith and consequently lost their status as employees of the respondent
company did not meet the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the petitioners amounted to on
"illegal strike" and therefore in violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully reiterate and humbly
submit, that the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings, petitioners
should have been absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of bounds by declaring the
petitioners as having "bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble

peaceably to air grievances against the duly constituted authorities as guaranteed in
our Constitution is subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners to free speech and
assembly is paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and void. These
fundamental rights of the petitioners were not taken into consideration in the
deliberation of the case by the respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due
process. They do not posit that the decision of the industrial court is null and void on that
constitutional ground. True it is that they fault the respondent court for having priced the provisions
of the collective bargaining agreement herein involved over and above their constitutional right to
peaceably assemble and petition for redress of their grievances against the abuses of the Pasig
police, but in no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners themselves consider the
alleged flaw in the court's action as a mere error of judgment rather than that of jurisdiction which the
main opinion projects. For this Court to roundly and indignantly condemn private respondent now for
the grievous violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been duly presented
to Us and properly argued, is to my mind unfair and unjust, for the simple reason that the manner
this case was brought to Us does not afford it the opportunity to be heard in regard to such
supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by

finding petitioners guilty of bargaining in bad faith when the charge against them alleged in the
complaint was for having conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the trial judge did
err in not giving preferential importance to the fundamental freedoms invoked by the petitioners over
the management and proprietary attributes claimed by the respondent private firm — still, We cannot
rightly hold that such disregard of petitioners' priceless liberties divested His Honor of jurisdiction in
the premises. The unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were allowed to reopen them at any
time in the future".
3

I only have to add to this that the fact that the error is in the interpretation, construction or application
of a constitutional precept not constituting a denial of due process, should not make any difference.
Juridically, a party cannot be less injured by an overlooked or erroneously sanctioned violation of an
ordinary statute than by a misconstrued or constitutional injunction affecting his individual, freedoms.
In both instances, there is injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments. I dare say this must be the
reason why, as I have already noted, the main opinion does not cite any constitutional provision, law
or rule or any judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of jurisdiction to render
valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges
and Universities vs. Secretary of Education, following Santiago vs. Far Eastern Broadcasting, is that
4 5

"it is one of our (the Supreme Court's) decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will not consider it". In the case at
bar, the petitioners have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous
resolution by a court of a constitutional issue not amounting to a denial of due process renders its
judgment or decision null and void, and, therefore, subject to attack even after said judgment or
decision has become final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence always comes to the
fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of
the Philippines (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only
6

to realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the
manner provided in the law of the Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them, those governing
appeals from the Court of Industrial Relations involved herein. Consequently, if by law or rule, a
judgment of the industrial court is already final and executory, this Court would be devoid of power
and authority to review, much less alter or modify the same, absent any denial of due process or
fatal defect of jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically raised by the party
concerned, which, to be sure, could be enough reason to dissuade Us from taking pains in resolving
the same; rather, the real problem here is whether or not We have jurisdiction to entertain it. And, in
this regard, as already stated earlier, no less than Justice Conrado Sanchez, the writer of
Chavez, supra., which is being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case, We have
no choice but to follow, that is, that in view of reconsideration but even their argument supporting the
same within the prescribed period, "the judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their
judgments are made contingent on the correctness thereof from the constitutional standpoint, and
that in truth, whether or not they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as changeable as the
members themselves are changed, I cannot conceive of anything more pernicious and destructive to
a trustful administration of justice than the idea that, even without any showing of denial of due
process or want of jurisdiction of the court, a final and executory judgment of such court may still be
set aside or reopened in instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code. And just to emphasize the policy of the law of
7

respecting judgments once they have become final, even as this Court has ruled that final decisions
are mute in the presence of fraud which the law abhors, it is only when the fraud is extrinsic and not
8

intrinsic that final and executory judgments may be set aside, and this only when the remedy is
9

sought within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become
final, the winning party be not, through a mere subterfuge, deprived of the fruits of
the verdict. Courts must therefore guard against any scheme calculated to bring
about that result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end to controversies. To fulfill
this purpose and to do so speedily, certain time limits, more or less arbitrary, have to
be set up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus
keep causes ever within his power, to determine and redetermine them term after
term, to bandy his judgments about from one party to the other, and to change his
conclusions as freely and as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize that my position in
this opinion does not detract a whit from the soundness, authority and binding force
of existing doctrines enjoining any such modifications. The public policy of
maintaining faith and respect in judicial decisions, which inform said doctrines, is
 admittedly of the highest order. I am not advocating any departure from them. Nor
am I trying to put forth for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of Judge Tengco but the
decision of this Court in G.R. No. L-20950, as it is and not as I believe it should have
been, and, by opinion, I would like to guide the court a quo as to what, in my own
view, is the true and correct meaning and implications of decision of this Court, not
that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court,
wherein the Court refused to be constrained by technical rules of procedure in its determination to
accord substantial justice to the parties I still believe in those decisions, some of which were penned
by me. I am certain, however, that in none of those precedents did this Court disturb a judgment
already final and executory. It too obvious to require extended elucidation or even reference any
precedent or authority that the principle of immutability of final judgments is not a mere technicality,
and if it may considered to be in a sense a procedural rule, it is one that is founded on public policy
and cannot, therefore, yield to the ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes
far as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point
of nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations
Rule, promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore
is beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieve workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeal
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re-
hearing or reconsideration (Sec. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial Relations Rule insofar as circumstances of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a
critical view of the rule in question. Said rule provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the
date on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six (6) copies, duly verified
under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments
supporting the same. If the arguments can not be submitted simultaneously with said
motions, upon notice Court, the movant shall file same within ten (10) days from the
date of the filing of his motion for reconsideration. The adverse party shall also file
his answer within ten (10) days from the receipt by him of a copy of the arguments
submitted by the movant.
 Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall issue the
corresponding order or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal
of the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings
in the industrial court well knows, precisely permits the party aggrieved by a judgment to file no more
than a pro-forma motion for reconsideration without any argument or lengthy discussion and with
barely a brief statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws and authorities, in
the written arguments the be filed (10) days later. In truth, such a pro-forma motion has to effect of
just advising the court and the other party that the movant does not agree with the judgment due to
fundamental defects stated in brief and general terms. Evidently, the purpose of this requirement is
to apprise everyone concerned within the shortest possible time that a reconsideration is to sought,
and thereby enable the parties concerned to make whatever adjustments may be warranted by the
situation, in the meanwhile that the litigation is prolonged. It must borne in mind that cases in the
industrial court may involve affect the operation of vital industries in which labor-management
problems might require day-to-day solutions and it is to the best interests of justice and concerned
that the attitude of each party at every imports juncture of the case be known to the other so that
both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In
fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with
law, evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective

arguments within ten (10) days pursuant to Section 15, 16 & 17 as amended of the
Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be

admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such a motion is to
me simply incomprehensible. What worse in this case is that petitioners have not
even taken the trouble of giving an explanation of their inability to comply with the
rule. Not only that, petitioners were also late five (5) days in filing their written
arguments in support of their motion, and, the only excuse offered for such delay is
that both the President of the Union and the office clerk who took charge of the
 matter forgot to do what they were instructed to do by counsel, which, according to
this Court, as I shall explain anon "is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe the procedural requirements prescribed by
the Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such nonchalance
and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation
they have the effect of either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final judgment is deprived of
jurisdiction or authority to alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are substantive. Now, the
twin predicates of prescription are inaction or abandonment and the passage of time or a prescribed
period. On the other hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained. The most valuable right
of a party may be lost by prescription, and be has no reason to complain because public policy
demands that rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of
petitioners. Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the
purposes of this case the rules aforequoted of the Court of Industrial Relations. Besides, I have
grave doubts as to whether we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive Department Withal, if, in
order to hasten the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage
their Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their
failure to file "Arguments in Support of their Motion for Reconsideration within the reglementary
period or five (5), if not seven (7), days late "was due to excusable negligence and honest mistake
committed by the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and K-2) which in
brief, consisted allegedly of the President's having forgotten his appointment with his lawyer "despite
previous instructions and of the said office employee having also coincidentally forgotten "to do the
work instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy
at all can be evoked these allegations, for, under probably more justification circumstances, this
Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for
his failure to perfect in due time appeal from the judgment of the Municipal Court,
that counsel's clerk forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The uncritical acceptance of this kind
of common place excuses, in the face of the Supreme Court's repeated rulings that
they are neither credible nor constitutive of excusable negligence (Gaerlan vs.
Bernal, L-4039, 29 January 1952; Mercado vs. Judge Domingo, L-19457, December
1966) is certainly such whimsical exercise of judgment to be a grave abuse of
discretion. (Philippine Air Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the
present case has already become final and executory, nay, not without the fault of the petitioners,
hence, no matter how erroneous from the constitutional viewpoint it may be, it is already beyond
recall, I vote to dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against
alleged abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under pain of dismissal, the industrial court
ordered the dismissal from employment of the eight individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in
bad faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding
that it concededly was not a declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly constituted grave abuse of
discretion in fact and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution"
and the union up to the day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike"
clause as would warrant the union leaders' dismissal, since as found by respondent court itself the
mass demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having
been filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to
the negligence of petitioners' counsel and/or the union president should likewise be set aside as a
manifest act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration due to such negligence — which
was not acted upon by respondent court — should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their summary dismissal from
employment, simply because they sought in good faith to exercise basic human rights guaranteed
them by the Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main opinion's premise
that its insistence on dismissal of the union leaders for having included the first shift workers in the
mass demonstration against its wishes was but an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional
injunction to afford protection to labor be given true substance and meaning. No person may be
deprived of such basic rights without due process — which is but "responsiveness to the supremacy
of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided ... Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in
the judgment for petitioners as set forth in the main opinion
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose
Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

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

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

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

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
 The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

 (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;
 (c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;
 (d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:
 (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
 public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:
 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already
upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a
permit should not be granted for the proposed march and rally starting from a public park
that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a specific public place – is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."
 xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, -- even more so than on the other
departments – rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x
x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not
required.-- A written permit shall be
125 SCRA 553, 569) required for any person or persons to
organize and hold a public assembly in a
8. By way of a summary. The applicants for public place. However, no permit shall be
a permit to hold an assembly should inform required if the public assembly shall be
the licensing authority of the date, the done or made in a freedom park duly
public place where and the time when it will established by law or ordinance or in
take place. If it were a private place, only private property, in which case only the
the consent of the owner or the one entitled consent of the owner or the one entitled to
to its legal possession is required. Such its legal possession is required, or in the
application should be filed well ahead in campus of a government-owned and
time to enable the public official concerned operated educational institution which shall
to appraise whether there may be valid be subject to the rules and regulations of
objections to the grant of the permit or to its said educational institution. Political
grant but at another public place. It is an meetings or rallies held during any election
indispensable condition to such refusal or campaign period as provided for by law are
modification that the clear and present not covered by this Act.
danger test be the standard for the decision
reached. If he is of the view that there is Sec. 5. Application requirements.-- All
such an imminent and grave danger of a applications for a permit shall comply with
substantive evil, the applicants must be the following guidelines:
heard on the matter. Thereafter, his
decision, whether favorable or adverse, (a) The applications shall be in
must be transmitted to them at the earliest writing and shall include the names
opportunity. Thus if so minded, they can of the leaders or organizers; the
have recourse to the proper judicial purpose of such public assembly;
authority. the date, time and duration thereof,
and place or streets to be used for
the intended activity; and the
probable number of persons
participating, the transport and the
public address systems to be used.

(b) The application shall incorporate

the duty and responsibility of
applicant under Section 8 hereof.

(c) The application shall be filed

with the office of the mayor of the
city or municipality in whose
jurisdiction the intended activity is to
be held, at least five (5) working
days before the scheduled public
assembly.

(d) Upon receipt of the application,

which must be duly acknowledged
in writing, the office of the city or
municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or
municipal building.

Sec. 6. Action to be taken on the

application. –

(a) It shall be the duty of the mayor

or any official acting in his behalf to
issue or grant a permit unless there
is clear and convincing evidence
that the public assembly will create
a clear and present danger to public
order, public safety, public
convenience, public morals or
public health.

(b) The mayor or any official acting

in his behalf shall act on the
application within two (2) working
days from the date the application
was filed, failing which, the permit
shall be deemed granted. Should
for any reason the mayor or any
official acting in his behalf refuse to
accept the application for a permit,
said application shall be posted by
the applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.

(c) If the mayor is of the view that

there is imminent and grave danger
of a substantive evil warranting the
denial or modification of the permit,
he shall immediately inform the
applicant who must be heard on the
matter.

(d) The action on the permit shall

be in writing and served on the
applica[nt] within twenty-four hours.

(e) If the mayor or any official acting

in his behalf denies the application
or modifies the terms thereof in his
permit, the applicant may contest
the decision in an appropriate court
of law.

(f) In case suit is brought before the

Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional
Trial Court, or the Intermediate
Appellate Court, its decisions may
be appealed to the appropriate
court within forty-eight (48) hours
after receipt of the same. No appeal
bond and record on appeal shall be
required. A decision granting such
permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this

section shall be decided within
twenty-four (24) hours from date of
 filing. Cases filed hereunder shall
be immediately endorsed to the
executive judge for disposition or, in
his absence, to the next in rank.

(h) In all cases, any decision may

be appealed to the Supreme Court.

(i) Telegraphic appeals to be

followed by formal appeals are
hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.
 3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common

interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with
the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
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agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightened scrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.