Consti Week5

Embed Size (px)

Citation preview

  • 8/13/2019 Consti Week5

    1/34

    1

    FREEDOM OF EXPRESSION

    TELEBAP vs. COMELEC, G.R. NO. 132922, April 21, 1998 (289

    SCRA 337)

    Facts:

    TELEBAP and GMA Network together filed a petition to

    challenge the validity of Comelec Time due to the fact that

    said provisions: (1) have taken properties without due

    process of law and without just compensation; (2) it denied

    the radio and television broadcast companies the equal

    protection of the laws; and (3) that it is in excess of the power

    given to the Comelec to regulate the operation of media

    communication or information during election period.

    Held:

    Petitioners' argument is without merit, All broadcasting,

    whether by radio or by television stations, is licensed by the

    government. Airwave frequencies have to be allocated as

    there are more individuals who want to broadcast than there

    are frequencies to assign. 9 A franchise is thus a privilege

    subject, among other things, to amended by Congress in

    accordance with the constitutional provision that "any such

    franchise or right granted . . . shall be subject to amendment,

    alteration or repeal by the Congress when the common good

    so requires."

    Indeed, provisions for COMELEC Time have been made by

    amendment of the franchises of radio and television

    broadcast stations and, until the present case was brought,

    such provisions had not been thought of as taking property

    without just compensation. Art. XII, 11 of the Constitution

    authorizes the amendment of franchises for "the common

    good." What better measure can be conceived for the

    common good than one for free air time for the benefit not

    only of candidates but even more of the public, particularly

    the voters, so that they will be fully informed of the issues in

    an election? "[I]t is the right of the viewers and listeners, not

    the right of the broadcasters, which is paramount." 11

    Nor indeed can there be any constitutional objection to the

    requirement that broadcast stations give free air time. Even

    in the United States, there are responsible scholars who

    believe that government controls on broadcast media can

    constitutionally be instituted to ensure diversity of views and

    attention to public affairs to further the system of freeexpression. For this purpose, broadcast stations may be

    required to give free air time to candidates in an election.

    In truth, radio and television broadcasting companies, which

    are given franchises, do not own the airwaves and

    frequencies through which they transmit broadcast signals

    and images. They are merely given the temporary privilege of

    using them. Since a franchise is a mere privilege, the exercise

    of the privilege may reasonably be burdened with the

    performance by the grantee of some form of public service.

    ABS-CBN Broadcasting Corp v. COMELEC

    January 28, 2000

    FACTS: COMELEC issued a Resolution approving the

    issuance of a restraining order to stop ABS CBN or any other

    groups, its agents or representatives from conducting exit

    surveys. The Resolution was issued by

    the Comelec allegedly upon "information from a reliable

    source that ABS-CBN (Lopez Group) has prepared a project,

    with PR groups, to conduct radio-TV coverage of the elections

    and to make an exit survey of the vote during the elections

    for national officials particularly for President and Vice

    President, results of which shall be broadcasted

    immediately. The electoral body believed that such project

    might conflict with the official Comelec count, as well as the

    unofficial quick count of the National Movement for Free

    Elections (Namfrel). It also noted that it had not authorized or

    deputized ABS-CBN to undertake the exit survey.

    Two days before the elections on May 11, 1998, the

    Court issued the Temporary Restraining Order prayed for by

    petitioner ABS-CBN. The Comelec was directed to cease and

    desist, until further orders, from implementing the assailed

    Resolution or the restraining order issued pursuant thereto, if

    any. In fact, the exit polls were actually conducted andreported by media without any difficulty or problem.

    ISSUE: W/N the Comelec, in the exercise of its

    powers, can absolutely ban exit polls

    ABS-CBN: The holding of exit polls and the nationwide

    reporting of their results are valid exercises of the freedoms

    of speech and of the press

    COMELEC:

    1)The issuance thereof was "pursuant to its constitutional

    and statutory powers to promote a clean, honest, orderly and

    credible May 11, 1998 elections"; and "to protect, preserve

    and maintain the secrecy and sanctity of the ballot."

    2)It contends that "the conduct of exit surveys might unduly

    confuse and influence the voters," and that the surveys were

    designed "to condition the minds of people and cause

    confusion as to who are the winners and the losers in the

    election," which in turn may result in "violence and anarchy."

    3)"exit surveys indirectly violate the constitutional principle

    to preserve the sanctity of the ballots," as the "voters are

    lured to reveal the contents of ballots," in violation of Section2, Article V of the Constitution and relevant provisions of the

    Omnibus Election Code. It submits that the constitutionally

    protected freedoms invoked by petitioner "are not immune

  • 8/13/2019 Consti Week5

    2/34

    2

    to regulation by the State in the legitimate exercise of its

    police power," such as in the present case.

    4) "[p]ress freedom may be curtailed if the exercise thereof

    creates a clear and present danger to the community or it has

    a dangerous tendency." It then contends that "an exit poll has

    the tendency to sow confusion considering the randomness

    of selecting interviewees, which further make[s] the exit poll

    highly unreliable. The probability that the results of such exit

    poll may not be in harmony with the official count made bythe Comelec x x x is ever present. In other words, the exit poll

    has a clear and present danger of destroying the credibility

    and integrity of the electoral process."

    SUPREME COURT: The COMELEC Resolution on exit

    polls ban is nullified and set aside.

    1) Clear and present danger of destroying the integrity of

    electoral processes

    Speculative and Untenable. First, by the very nature of a

    survey, the interviewees or participants are selected at

    random, so that the results will as much as possible be

    representative or reflective of the general sentiment or view

    of the community or group polled. Second, the survey result

    is not meant to replace or be at par with the official Comelec

    count. It consists merely of the opinion of the polling group as

    to who the electorate in general has probably voted for,

    based on the limited data gathered from polled individuals.

    Finally, not at stake here are the credibility and the integrity

    of the elections, which are exercises that are separate and

    independent from the exit polls. The holding and the

    reporting of the results of exit polls cannot undermine those

    of the elections, since the former is only part of the latter. Ifat all, the outcome of one can only be indicative of the other.

    2) Overbroad

    The Comelec's concern with the possible noncommunicative

    effect of exit polls -- disorder and confusion in the voting

    centers -- does not justify a total ban on them. Undoubtedly,

    the assailed Comelec Resolution is too broad, since its

    application is without qualification as to whether the polling

    is disruptive or not.[44] Concededly, the Omnibus Election

    Code prohibits disruptive behavior around the voting

    centers.[45] There is no showing, however, that exit polls or

    the means to interview voters cause chaos in voting centers.

    Neither has any evidence been presented proving that the

    presence of exit poll reporters near an election precinct tends

    to create disorder or confuse the voters. M oreover, the

    prohibition incidentally prevents the collection of exit poll

    data and their use for any purpose. The valuable information

    and ideas that could be derived from them, based on the

    voters' answers to the survey questions will forever remain

    unknown and unexplored. Unless the ban is restrained,

    candidates, researchers, social scientists and the electorate in

    general would be deprived of studies on the impact of

    current events and of election-day and other factors on

    voters' choices.

    3) Violation of Ban Secrecy

    The contention of public respondent that exit polls indirectly

    transgress the sanctity and the secrecy of the ballot is off-

    tangent to the real issue. Petitioner does not seek access to

    the ballots cast by the voters. The ballot system of voting is

    not at issue here.

    The reason behind the principle of ballot secrecy is to avoid

    vote buying through voter identification. Thus, voters are

    prohibited from exhibiting the contents of their official ballots

    to other persons, from making copies thereof, or fromputting distinguishing marks thereon so as to be identified.

    Also proscribed is finding out the contents of the ballots cast

    by particular voters or disclosing those of disabled or illiterate

    voters who have been assisted. Clearly, what is forbidden is

    the association of voters with their respective votes, for the

    purpose of assuring that the votes have been cast in

    accordance with the instructions of a third party. This result

    cannot, however, be achieved merely through the voters'

    verbal and confidential disclosure to a pollster of whom they

    have voted for.

    In exit polls, the contents of the official ballot are not actually

    exposed. Furthermore, the revelation of whom an elector hasvoted for is not compulsory, but voluntary. Voters may also

    choose not to reveal their identities. Indeed, narrowly

    tailored countermeasures may be prescribed by the Comelec,

    so as to minimize or suppress incidental problems in the

    conduct of exit polls, without transgressing the fundamental

    rights of our people.##

    An exit poll is a species of electoral survey conducted by

    qualified individuals or groups of individuals for the purpose

    of determining the probable result of an election by

    confidentially asking randomly selected voters whom they

    have voted for, immediately after they have officially casttheir ballots. The results of the survey are announced to the

    public, usually through the mass media, to give an advance

    overview of how, in the opinion of the polling individuals or

    organizations, the electorate voted. In our electoral history,

    exit polls had not been resorted to until the recent May 11,

    1998 elections.

    SWS vs Comelec

    Facts: Petitioner SWS and KPC states that it wishes to conduct

    an election survey throughout the period of the elections and

    release to the media the results of such survey as well aspublish them directly. Petitioners argue that the restriction

    on the publication of election survey results constitutes a

  • 8/13/2019 Consti Week5

    3/34

    3

    prior restraint on the exercise of freedom of speech without

    any clear and present danger to justify such restraint.

    Issue: Are the Comelec Resolutions prohibiting the holding of

    pre-polls and exit polls and the dissemination of their results

    through mass media, valid and constitutional?

    Ruling: No. The Court held that Section (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 ofexpression 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.

    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.

    Government Service Insurance System and Winston F.

    Garcia vs. Dinnah Villaviza, et al. G.R. No. 180291 , July 27,

    2010.

    Freedom of speech. Government workers, whatever their

    rank, have as much right as any person in the land to voice

    out their protests against what they believe to be a violation

    of their rights and interests. Civil Service does not deprive

    them of their freedom of expression. It would be unfair to

    hold that by joining the government service, the members

    thereof have renounced or waived this basic liberty. This

    freedom can be reasonably regulated only but can never be

    taken away. Thus, Section 5 of Civil Service Commission

    Resolution No. 02-1316, which regulates the political rights of

    those in the government service, provides that the concerted

    activity or mass action proscribed must be coupled with the

    intent of effecting work stoppage or service disruption in

    order to realize their demands of force concession. Such

    limitation or qualification in the above rule is intended to

    temper and focus the application of the prohibition, as not all

    collective activity or mass undertaking of government

    employees is prohibited. Otherwise, government employees

    would be deprived of their constitutional right to freedom of

    expression. Respondents act of wearing similarly colored

    shirts, attending a public hearing for just over an hour at the

    office of the GSIS Investigation Unit, bringing with them

    recording gadgets, clenching their fists, and some even

    badmouthing the GSIS guards and GSIS President and General

    Manager Winston F. Garcia, are not constitutive of an (i)

    intent to effect work stoppage or service disruption and (ii)

    for the purpose of realizing their demands of force

    concession. These actuations did not amount to a prohibited

    concerted activity or mass action.

    SORIANO VS MTRCB

    The following is an update on the case of Bro. Eli Soriano

    versus Ma. Consoliza Laguardia and the Movie and Television

    Review and Classification Board (MTRCB). It begins with thepreachers account with a snippet from TOP magazine. It then

    leads to Erika T. Dys news on Supreme Courts en banc

    decision, and Newsbreak Purple S. Romeros voting report of

    the Supreme Court on the case. The focus is on the dissenting

    opinions of two justices: Justice Roberto A. Abad and Justice

    Antonio T. Carpio.The dissenting opinions carry facts of the

    case which can update the reader.

    Dissent means that judges that do not agree with the

    majority may write their own dissenting opinions to state

    their views.

    Justice Antonio Carpio

    Background:

    MTRCB suspended Bro. Sorianos television broadcasts after

    the same religious group, the Iglesia ni Cristo (INC), had filed

    practically the same complaints about the use of harsh words

    by Bro. Soriano or alleged bad words and defamation

    against the INC. Soriano contested the suspensions at the

    high court, complaining that the MTRCB violated his

    constitutional right to free religion, speech, and expression.

    The statements were merely in response to the detestable

    conduct of the ministers of the Iglesia ni Cristo hosting atelevision program entitled, Ang Tamang Daan, he said.

    In taking Ang Dating Daan off the air, the MTRCB cited

    Section 3 of Presidential Decree 1986, granting the Board the

    power to screen, review, and examine all movie and TV

    programs and to delete materials that it deems morally

    offensive.

    But Soriano countered that Section 3c of PD 1986 is

    unconstitutional in so far as it sanctions the censorship of

    religious TV programs as a form of subsequent punishment.

    [SOURCE: THE OLD PATH MAGAZINE. Vol. 1 No. 3 | 2005.http://www.angdatingdaan.org/publications/pub_top_2.htm

    %5D

    After four years, this report came out -

    The Supreme Court en banc, in an 11-4 vote, upheld the

    three-month suspension imposed by the Movie and

    Television Review and Classification Board on the TV program

    Ang Dating Daan, aired on UNTV 37, after its host, petitioner

    Eliseo S. Soriano, was found to have uttered offensive and

    obscene remarks during its August 10, 2004 broadcast.

    The majority, in a consolidated decision, speaking through

    Justice Presbitero J. Velasco, Jr., held that the suspension is

    not a prior restraint, but rather a form of permissible

    administrative sanction or subsequent punishment. In

  • 8/13/2019 Consti Week5

    4/34

    4

    affirming the power of the MTRCB to issue an order of

    suspension, the majority said that it is a sanction that the

    MTRCB may validly impose under its charter without running

    afoul of the free speech clause. *Source: Erika T. Dy. SC

    Upholds MTRCB Suspension of Ang Dating Daan. Supreme

    Court of the Philippines. April 30, 2009.]

    A researcher from Newsbreak had provided a capsule report

    of the voting of the High Court on this issue as followsHow

    the Supreme Court decided on

    Soriano v. Laguardia; Soriano v. MTRCB

    (on the suspension of Dating Daan preacher for uttering

    profanities on air against the Iglesia ni Cristo)

    Why is it important: The case raised questions on what

    constitutes prior restraint.

    The SC upheld the 3-month suspension of Dating Daan host

    Eliseo Soriano, who uttered profanities against the religious

    sect Iglesia ni Cristo on his show.

    The Movie and Television Review Classification Board first

    slapped Soriano with a 20-day preventive suspension upon

    preliminary probe. It then issued a 3-month suspension

    against Soriano after he was found guilty of expressing

    obscenities on air.

    The majority ruled that it is within the powers of the MTRCB

    to issue a preventive suspension.

    However, those who dissented, which included Chief Justice

    Reynato Puno, said that the sanction will extend to Sorianos

    future speech, and thus would constitute prior restraint.

    How they voted: De Castro concurred with the decision.

    Carpio and Carpio-Morales dissented. Brion and Corona voted

    to dismiss the petition. [Research by Purple S. Romero.

    Newsbreak.com]

    Here come now the excerpts from Law Monitor of the

    Supreme Court showing the dissenting opinions of Justice

    Roberto A. Abad and Justice Antonio T. Carpio.

    Saturday, June 5, 2010

    Supreme Court Decisions and Resolutions March 2010

    G.R. No. 164785/G.R. No. 165636. March 15, 2010

    Eliseo F. Soriano Vs. Ma. Consoliza P. Laguardia, etc. et

    al./Eliseo F. Soriano Vs. Movie and Television Review and

    Classification Board, et al.

    FREEDOM OF ASSEMBLY

    Bayan, et al., Vs. Eduardo Ermita, et al., G.R. No. 169838

    April 25, 2006 DIGEST

    Bayan, et al., Vs. Eduardo Ermita, et al.,

    G.R. No. 169838

    April 25, 2006

    Facts: The petitioners, Bayan, et al., alleged that they are

    citizens and taxpayers of the Philippines and that their right

    as organizations and individuals were violated when the rally

    they participated in on October 6, 2005 was violently

    dispersed by policemen implementing Batas Pambansa No.

    880.

    Petitioners contended 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. 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

    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. This petition and two other petitions were

    ordered to be consolidated on February 14, 2006. During the

    course of oral arguments, the 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.

    Issue: Whether the Calibrated Pre-emptive response and the

    Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12,

    13(a) and 14(a) violates Art. III Sec. 4 of the Philippine

    Constitution as it causes a disturbing effect on the exercise by

    the people of the right to peaceably assemble.

    Held: Section 4 of Article III of the Philippine Constitution

    provides that 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 right to peaceably assemble

    and petition for redress of grievances, together with freedom

    of speech, of expression, and of the press, is a right that

    enjoys dominance in the sphere of constitutional protection.

    For this rights represent the very basis of a functional

  • 8/13/2019 Consti Week5

    5/34

    5

    democratic polity, without which all the other rights would be

    meaningless and unprotected.

    However, it must be remembered that the right, while

    sacrosanct, is not absolute. It may be 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 thehealth, morals, peace, education, good order or safety, and

    general welfare of the people.

    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. B.P. No. 880 thus readily shows that it

    refers to all kinds of public assemblies 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 the words opinion,

    protesting, and influencing in of grievances come fromthe wording of the Constitution, so its use cannot be avoided.

    Finally, maximum tolerance is for the protection and benefit

    of all rallyist and is independent of the content of the

    expression 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 rights even under

    the Universal Declaration of Human Rights and The

    International Covenant on Civil and Political Rights.

    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

    plaza in every city or municipality that has not yet complied

    with section 15 of the law. Furthermore, Calibrated pre-

    emptive 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

    INTEGRATED BAR OF THE PHILIPPINES represented by its

    National President, Jose Anselmo I. Cadiz, H. HARRY L.

    ROQUE, and JOEL RUIZ BUTUYAN, Petitioners - versus -

    HONORABLE MANILA MAYOR JOSE LITO ATIENZA

    Respondent.

    G.R. No. 175241

    Promulgated February 24, 2010

    Petitioners Integrated Bar of the Philippines[1] (IBP) and

    lawyers H. Harry L. Roque and Joel R. Butuyan appeal the

    June 28, 2006 Decision[2] and the October 26, 2006

    Resolution[3] of the Court of Appeals that found no grave

    abuse of discretion on the part of respondent Jose Lito

    Atienza, the then mayor of Manila, in granting a permit to

    rally in a venue other than the one applied for by the IBP.

    On June 15, 2006, the IBP, through its then National

    President Jose Anselmo Cadiz (Cadiz), filed with the Office of

    the City Mayor of Manila a letter application[4] for a permit

    to rally at the foot of Mendiola Bridge on June 22, 2006 from

    2:30 p.m. to 5:30 p.m. to be participated in by IBP officers

    and members, law students and multi-sectoral organizations.

    Respondent issued a permit[5] dated June 16, 2006

    allowing the IBP to stage a rally on given date but indicated

    therein Plaza Miranda as the venue, instead of Mendiola

    Bridge, which permit the IBP received on June 19, 2006.

    Aggrieved, petitioners filed on June 21, 2006 before the

    Court of Appeals a petition for certiorari docketed as CA-G.R.

    SP No. 94949.[6] The petition having been unresolved within

    24 hours from its filing, petitioners filed before this Court on

    June 22, 2006 a petition for certiorari docketed as G.R. No.

    172951 which assailed the appellate courts inaction or

    refusal to resolve the petition within the period provided

    under the Public Assembly Act of 1985.[7]

    The Court, by Resolutions of July 26, 2006, August 30, 2006

    and November 20, 2006, respectively, denied the petition for

    being moot and academic, denied the relief that the petition

    be heard on the merits in view of the pendency of CA-G.R. SP

    No. 94949, and denied the motion for reconsideration.

    The rally pushed through on June 22, 2006 at Mendiola

    Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan

    whose contingent from the Manila Police District (MPD)

    earlier barred petitioners from proceeding thereto.

    Petitioners allege that the participants voluntarily dispersed

    after the peaceful conduct of the program.

    The MPD thereupon instituted on June 26, 2006 a

    criminal action,[8] docketed as I.S. No. 06I-12501, against

    Cadiz for violating the Public Assembly Act in staging a rally at

    a venue not indicated in the permit, to which charge Cadiz

    filed a Counter-Affidavit of August 3, 2006.

  • 8/13/2019 Consti Week5

    6/34

    6

    In the meantime, the appellate court ruled, in CA-G.R.

    SP No. 94949, by the first assailed issuance, that the petition

    became moot and lacked merit. The appellate court also

    denied petitioners motion for reconsideration by the second

    assailed issuance.

    Hence, the filing of the present petition for review on

    certiorari, to which respondent filed his Comment of

    November 18, 2008 which merited petitioners Reply of

    October 2, 2009.

    The main issue is whether the appellate court erred in

    holding that the mod ification of the venue in IBPs rally

    permit does not constitute grave abuse of discretion.

    Petitioners assert that the partial grant of the application

    runs contrary to the Pubic Assembly Act and violates their

    constitutional right to freedom of expression and public

    assembly.

    The Court shall first resolve the preliminary issue of

    mootness.

    Undoubtedly, the petition filed with the appellate court

    on June 21, 2006 became moot upon the passing of the date

    of the rally on June 22, 2006.

    A moot and academic case is one that ceases to present

    a justiciable controversy by virtue of supervening events, so

    that a declaration thereon would be of no practical use or

    value. Generally, courts decline jurisdiction over such case or

    dismiss it on ground of mootness. However, even in cases

    where supervening events had made the cases moot, this

    Court did not hesitate to resolve the legal or constitutional

    issues raised to formulate controlling principles to guide thebench, bar and public. Moreover, as an exception to the rule

    on mootness, courts will decide a question otherwise moot if

    it is capable of repetition, yet evading review.[9]

    In the present case, the question of the legality of a

    modification of a permit to rally will arise each time the terms

    of an intended rally are altered by the concerned official, yet

    it evades review, owing to the limited time in processing the

    application where the shortest allowable period is five days

    prior to the assembly. The susceptibility of recurrence

    compels the Court to definitively resolve the issue at hand.

    Respecting petitioners argument that the issues

    presented in CA-G.R. SP No. 94949 pose a prejudicial questionto the criminal case against Cadiz, the Court finds it improper

    to resolve the same in the present case.

    Under the Rules,[10] the existence of a prejudicial

    question is a ground in a petition to suspend proceedings in a

    criminal action. Since suspension of the proceedings in the

    criminal action may be made only upon petition and not at

    the instance of the judge or the investigating prosecutor,[11]

    the latter cannot take cognizance of a claim of prejudicial

    question without a petition to suspend being filed. Since a

    petition to suspend can be filed only in the criminal

    action,[12] the determination of the pendency of a prejudicialquestion should be made at the first instance in the criminal

    action, and not before this Court in an appeal from the civil

    action.

    In proceeding to resolve the petition on the merits, the

    appellate court found no grave abuse of discretion on the

    part of respondent because the Public Assembly Act does not

    categorically require respondent to specify in writing the

    imminent and grave danger of a substantive evil which

    warrants the denial or modification of the permit and merely

    mandates that the action taken shall be in writing and shall

    be served on respondent within 24 hours. The appellatecourt went on to hold that respondent is authorized to

    regulate the exercise of the freedom of expression and of

    public assembly which are not absolute, and that the

    challenged permit is consistent with Plaza Mirandas

    designation as a freedom park where protest rallies are

    allowed without permit.

    The Court finds for petitioners.

    Section 6 of the Public Assembly Act reads:

    Section 6. Action to be taken on the application -

    (a) It shall be the duty of the mayor or any official acting in hisbehalf 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 deemedto have been filed.

    (c) If the mayor is of the view that there is imminent and

    grave danger of a substantive evil warranting the denial or

    modification of the permit, he shall immediately inform the

    applicant who must be heard on the matter.

    (d) The action on the permit shall be in writing and served on

    the application [sic] within twenty-four hours.

    (e) If the mayor or any official acting in his behalf denies the

    application or modifies the terms thereof in his permit, the

    applicant may contest the decision in an appropriate court of

    law.

  • 8/13/2019 Consti Week5

    7/34

    7

    (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 decidedwithin twenty-four (24) hours from date of filing. Cases filed

    hereunder shall be immediately endorsed to the executive

    judge for disposition or, in his absence, to the next in rank.

    (h) In all cases, any decision may be appealed to the Supreme

    Court.

    (i) Telegraphic appeals to be followed by formal appeals are

    hereby allowed. (underscoring supplied)

    In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas

    (KMP) v. Ermita,[13] the Court reiterated:

    x x x Freedom of assembly connotes the right of the

    people to meet peaceably for consultation and discussion of

    matters of public concern. It is entitled to be accorded the

    utmost deference and respect. It is not to be limited, much

    less denied, except on a showing, as is the case with freedom

    of expression, of a clear and present danger of a substantive

    evil that the state has a right to prevent. Even prior to the

    1935 Constitution, Justice Malcolm had occasion to stress

    that it is a necessary consequence of our republican

    institutions and complements the right of free speech. To

    paraphrase the opinion of Justice Rutledge, speaking for the

    majority of the American Supreme Court in Thomas v. Collins,

    it was not by accident or coincidence that the rights to

    freedom of speech and of the press were coupled in a single

    guarantee with the rights of the people peaceably to

    assemble and to petition the government for redress of

    grievances. All these rights, while not identical, are

    inseparable. In every case, therefore, where there is a

    limitation placed on the exercise of this right, the judiciary is

    called upon to examine the effects of the challenged

    governmental actuation. The sole justification for a limitation

    on the exercise of this right, so fundamental to the

    maintenance of democratic institutions, is the danger, of a

    character both grave and imminent, of a serious evil to public

    safety, public morals, public health, or any other legitimate

    public interest.[14] (emphasis supplied)

    The Court in Bayan stated that the provisions of the

    Public Assembly Act of 1985 practically codified the 1983

    ruling in Reyes v. Bagatsing.[15] In ju xtaposing Sections 4 to 6

    of the Public Assembly Act with the pertinent portion of the

    Reyes case, the Court elucidated as follows:

    x x x [The public official concerned shall] appraise whether

    there may be valid objections to the grant of the permit or to

    its grant but at another public place. It is an indispensable

    condition to such refusal or modification that the clear andpresent danger test be the standard for the decision reached.

    If he is of the view that there is such an imminent and grave

    danger of a substantive evil, the applicants must be heard on

    the matter. Thereafter, his decision, whether favorable or

    adverse, must be transmitted to them at the earliest

    opportunity. Thus if so minded, they can have recourse to

    the proper judicial authority.[16] (italics and underscoring

    supplied)

    In modifying the permit outright, respondent gravely

    abused his discretion when he did not immediately inform

    the IBP who should have been heard first on the matter of hisperceived imminent and grave danger of a substantive evil

    that may warrant the changing of the venue. The

    opportunity to be heard precedes the action on the permit,

    since the applicant may directly go to court after an

    unfavorable action on the permit.

    Respondent failed to indicate how he had arrived at

    modifying the terms of the permit against the standard of a

    clear and present danger test which, it bears repeating, is an

    indispensable condition to such modification. Nothing in the

    issued permit adverts to an imminent and grave danger of a

    substantive evil, which blank denial or modification would,

    when granted imprimatur as the appellate court would haveit, render illusory any judicial scrutiny thereof.

    It is true that the licensing official, here respondent

    Mayor, is not devoid of discretion in determining whether or

    not a permit would be granted. It is not, however, unfettered

    discretion. While prudence requires that there be a realistic

    appraisal not of what may possibly occur but of what may

    probably occur, given all the relevant circumstances, still the

    assumptionespecially so where the assembly is scheduled

    for a specific public placeis 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 AmericanSupreme Court, is not to be "abridged on the plea that it may

    be exercised in some other place.*17+ (emphasis and

    underscoring supplied)

    Notably, respondent failed to indicate in his Comment any

    basis or explanation for his action. It smacks of whim and

    caprice for respondent to just impose a change of venue for

    an assembly that was slated for a specific public place. It is

    thus reversible error for the appellate court not to have

    found such grave abuse of discretion and , under specific

    statutory provision, not to have modified the permit in

    terms satisfactory to the applicant.*18+

    WHEREFORE, the assailed Decision and Resolution of the

    Court of Appeals in CA-G.R. SP No. 94949 are REVERSED. The

  • 8/13/2019 Consti Week5

    8/34

    8

    Court DECLARES that respondent committed grave abuse of

    discretion in modifying the rally permit issued on June 16,

    2006 insofar as it altered the venue from Mendiola Bridge to

    Plaza Miranda.

    BATAS PAMBANSA BLG. 880

    AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF

    THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE

    GOVERNMENT FOR OTHER PURPOSES

    Section 1. Title - This Act shall be known as "The Public

    Assembly Act of 1985."

    Section 2. Declaration of policy - The constitutional

    right of the people peaceably to assemble and petition the

    government for redress of grievances is essential and vital to

    the strength and stability of the State. To this end, the State

    shall ensure the free exercise of such right without prejudice

    to the rights of others to life, liberty and equal protection of

    the law.

    Section 3. Definition of terms - For purposes of thisAct:

    (a) "Public assembly" means any rally, demonstration, march,

    parade, procession or any other form of mass or concerted

    action held in a public place for the purpose of presenting a

    lawful cause; or expressing an opinion to the general public

    on any particular issue; or protesting or influencing any state

    of affairs whether political, economic or social; or petitioning

    the government for redress of grievances.

    The processions, rallies, parades, demonstrations, public

    meetings and assemblages for religious purposes shall be

    governed by local ordinances: Provided, however, That the

    declaration of policy as provided in Section 2 of this Act shall

    be faithfully observed.

    The definition herein contained shall not include picketing

    and other concerted action in strike areas by workers and

    employees resulting from a labor dispute as defined by the

    Labor Code, its implementing rules and regulations, and by

    the Batas Pambansa Bilang 227.

    (b) "Public place" shall include any highway, boulevard,

    avenue, road, street, bridge or other thoroughfare, park,

    plaza, square, and/or any open space of public ownership

    where the people are allowed access.

    (c) "Maximum tolerance" means the highest degree of

    restraint that the military, police and other peace keeping

    authorities shall observe during a public assembly or in the

    dispersal of the same.

    (d) "Modification of permit" shall include the change of the

    place and time of the public assembly, rerouting of the

    parade or street march, the volume of loud-speakers or

    sound system and similar changes.

    Section 4. Permit when required and when not

    required - A written permit shall be required for any person

    or persons to organize and hold a public assembly in a public

    place. However, no permit shall be required if the public

    assembly shall be done or made in a freedom park duly

    established by law or ordinance or in private property, in

    which case only the consent of the owner or the one entitled

    to its legal possession is required, or in the campus of a

    government-owned and operated educational institution

    which shall be subject to the rules and regulations of said

    educational institution. Political meetings or rallies held

    during any election campaign period as provided for by law

    are not covered by this Act.

    Section 5. Application requirements - All applications

    for a permit shall comply with the following guidelines:

    (a) The applications shall be in writing and shall include the

    names of the leaders or organizers; the purpose of such

    public assembly; the date, time and duration thereof, and

    place or streets to be used for the intended activity; and the

    probable number of persons participating, the transport and

    the public address systems to be used.

    (b) The application shall incorporate the duty and

    responsibility of applicant under Section 8 hereof.

    (c) The application shall be filed with the office of the mayor

    of the city or municipality in whose jurisdiction the intended

    activity is to be held, at least five (5) working days before the

    scheduled public assembly.

    (d) Upon receipt of the application, which must be duly

    acknowledged in writing, the office of the city or municipal

    mayor shall cause the same to immediately be posted at a

    conspicuous place in the city or municipal building.

    Section 6. Action to be taken on the application -

    (a) It shall be the duty of the mayor or any official acting in his

    behalf to issue or grant a permit unless there is clear and

    convincing evidence that the public assembly will create a

    clear and present danger to public order, public safety, public

    convenience, public morals or public health.

    (b) The mayor or any official acting in his behalf shall act on

    the application within two (2) working days from the date the

    application was filed, failing which, the permit shall be

    deemed granted. Should for any reason the mayor or any

    official acting in his behalf refuse to accept the application for

    a permit, said application shall be posted by the applicant on

    the premises of the office of the mayor and shall be deemed

    to have been filed.

    (c) If the mayor is of the view that there is imminent and

    grave danger of a substantive evil warranting the denial or

    modification of the permit, he shall immediately inform the

    applicant who must be heard on the matter.

    (d) The action on the permit shall be in writing and served on

    the application within twenty-four hours.

  • 8/13/2019 Consti Week5

    9/34

    9

    (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 decisiongranting such permit or modifying it in terms satisfactory to

    the applicant shall, be immediately executory.

    (g) All cases filed in court under this Section shall be decided

    within twenty-four (24) hours from date of filing. Cases filed

    hereunder shall be immediately endorsed to the executive

    judge for disposition or, in his absence, to the next in rank.

    (h) In all cases, any decision may be appealed to the Supreme

    Court.

    (i) Telegraphic appeals to be followed by formal appeals are

    hereby allowed.

    Section 7. Use of public thoroughfare - Should the

    proposed public assembly involve the use, for an appreciable

    length of time, of any public highway, boulevard, avenue,

    road or street, the mayor or any official acting in his behalf

    may, to prevent grave public inconvenience, designate the

    route thereof which is convenient to the participants or

    reroute the vehicular traffic to another direction so that there

    will be no serious or undue interference with the free flow of

    commerce and trade.

    Section 8. Responsibility of applicant - It shall be the

    duty and responsibility of the leaders and organizers of a

    public assembly to take all reasonable measures and steps tothe end that the intended public assembly shall be conducted

    peacefully in accordance with the terms of the permit. These

    shall include but not be limited to the following:

    (a) To inform the participants of their responsibility under the

    permit;

    (b) To police the ranks of the demonstrators in order to

    prevent non-demonstrators from disrupting the lawful

    activities of the public assembly;

    (c) To confer with local government officials concerned and

    law enforcers to the end that the public assembly may be

    held peacefully;

    (d) To see to it that the public assembly undertaken shall not

    go beyond the time stated in the permit; and

    (e) To take positive steps that demonstrators do not molest

    any person or do any act unduly interfering with the rights of

    other persons not participating in the public assembly.

    Section 9. Non-interference by law enforcement

    authorities - Law enforcement agencies shall not interfere

    with the holding of a public assembly. However, to

    adequately ensure public safety, a law enforcement

    contingent under the command of a responsible police officer

    may be detailed and stationed in a place at least one hundred

    (100) meter away from the area of activity ready to maintain

    peace and order at all times.

    Section 10. Police assistance when requested - It shall

    be imperative for law enforcement agencies, when their

    assistance is requested by the leaders or organizers, to

    perform their duties always mindful that their responsibility

    to provide proper protection to those exercising their right

    peaceably to assemble and the freedom of expression is

    primordial. Towards this end, law enforcement agencies shall

    observe the following guidelines:

    (a) Members of the law enforcement contingent who deal

    with the demonstrators shall be in complete uniform withtheir nameplates and units to which they belong displayed

    prominently on the front and dorsal parts of their uniform

    and must observe the policy of "maximum tolerance" as

    herein defined;

    (b) The members of the law enforcement contingent shall not

    carry any kind of firearms but may be equipped with baton or

    riot sticks, shields, crash helmets with visor, gas masks, boots

    or ankle high shoes with shin guards;

    (c) Tear gas, smoke grenades, water cannons, or any similar

    anti-riot device shall not be used unless the public assembly is

    attended by actual violence or serious threats of violence, or

    deliberate destruction of property.

    Section 11. Dispersal of public assembly with permit -

    No public assembly with a permit shall be dispersed.

    However, when an assembly becomes violent, the police may

    disperse such public assembly as follows:

    (a) At the first sign of impending violence, the ranking officer

    of the law enforcement contingent shall call the attention of

    the leaders of the public assembly and ask the latter to

    prevent any possible disturbance;

    (b) If actual violence starts to a point where rocks or other

    harmful objects from the participants are thrown at the

    police or at the non-participants, or at any property causing

    damage to such property, the ranking officer of the law

    enforcement contingent shall audibly warn the participants

    that if the disturbance persists, the public assembly will be

    dispersed;

    (c) If the violence or disturbances prevailing as stated in the

    preceding subparagraph should not stop or abate, the ranking

    officer of the law enforcement contingent shall audibly issue

    a warning to the participants of the public assembly, and

    after allowing a reasonable period of time to lapse, shall

    immediately order it to forthwith disperse;

    (d) No arrest of any leader, organizer or participant shall also

    be made during the public assembly unless he violates duringthe 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:

  • 8/13/2019 Consti Week5

    10/34

    10

    (e) Isolated acts or incidents of disorder or branch of the

    peace during the public assembly shall not constitute a group

    for dispersal.

    Section 12. Dispersal of public assembly without permit

    - When the public assembly is held without a permit where a

    permit is required, the said public assembly may be

    peacefully dispersed.

    Section 13. Prohibited acts - The following shall

    constitute violations of this Act:

    (a) The holding of any public assembly as defined in this Act

    by any leader or organizer without having first secured that

    written permit where a permit is required from the office

    concerned, or the use of such permit for such purposes in any

    place other than those set out in said permit: Provided,

    however, That no person can be punished or held criminally

    liable for participating in or attending an otherwise peaceful

    assembly;

    (b) Arbitrary and unjustified denial or modification of a

    permit in violation of the provisions of this Act by the mayor

    or any other official acting in his behalf.

    (c) The unjustified and arbitrary refusal to accept or

    acknowledge receipt of the application for a permit by the

    mayor or any official acting in his behalf;

    (d) Obstructing, impeding, disrupting or otherwise denying

    the exercise of the right to peaceful assembly;

    (e) The unnecessary firing of firearms by a member of any law

    enforcement agency or any person to disperse the public

    assembly;

    (f) Acts in violation of Section 10 hereof;

    (g) Acts described hereunder if committed within one

    hundred (100) meters from the area of activity of the public

    assembly or on the occasion thereof;

    1. the carrying of a deadly or offensive weapon or device such

    as firearm, pillbox, bomb, and the like;

    2. the carrying of a bladed weapon and the like;

    3 the malicious burning of any object in the streets or

    thoroughfares;

    4. the carrying of firearms by members of the law

    enforcement unit;

    5. the interfering with or intentionally disturbing the holdingof a public assembly by the use of a motor vehicle, its horns

    and loud sound systems.

    Section 14. Penalties - Any person found guilty and

    convicted of any of the prohibited acts defined in the

    immediately preceding Section shall be punished as follows:

    (a) violation of subparagraph (a) shall be punished by

    imprisonment of one month and one day to six months;

    (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4,

    subparagraph (g) shall be punished by imprisonment of six

    months and one day to six years;

    (c) violation of item 1, subparagraph (g) shall be punished by

    imprisonment of six months and one day to six years without

    prejudice to prosecution under Presidential Decree No. 1866;

    (d) violations of item 2, item 3, or item 5 of subparagraph (g)

    shall be punished by imprisonment of one day to thirty days.

    Section 15. Freedom parks - Every city and municipality

    in the country shall within six months after the effectivity of

    this Act establish or designate at least one suitable "freedom

    park" or mall in their respective jurisdictions which, as far as

    practicable, shall be centrally located within the poblacion

    where demonstrations and meetings may be held at any timewithout the need of any prior permit.

    In the cities and municipalities of Metropolitan Manila, the

    respective mayors shall establish the freedom parks within

    the period of six months from the effectivity of this Act.

    Section 16. Constitutionality - Should any provision of

    this Act be declared invalid or unconstitutional, the validity or

    constitutionality of the other provisions shall not be affected

    thereby.

    Section 17. Repealing clause - All laws, decrees, letters

    of instructions, resolutions, orders, ordinances or partsthereof which are inconsistent with the provisions of this Act

    are hereby repealed, amended, or modified accordingly.

    Section 18. Effectivity - This Act shall take effect upon

    its approval.

    Approved, October 22, 1985.

    FREEDOM OF RELIGION

    Alejandro Estrada vs. Soledad Escritor A.M. No. P-02-1651

    June 22, 2006

    BILL OF RIGHTS

    Alejandro Estrada vs. Soledad EscritorA.M. No. P-02-1651June

    22, 2006

    FACTS:

    An administrative complaint was filed by Estrada

    against Escritor before Branch 253 of the RTC of Las Pinas City

    for living with a man not her husband and having borne a

    child within this live-in arrangement. Escritor is the court

    interpreter of RTC Branch 253. Estrada believes that Escritor

    is committing an immoral act that tarnishes the image of the

    court, thus she should not be allowed to remain employed

    therein as it might appear that the court condones her act.

    She was charged with committing disgraceful and immoral

    conduct under Book V, Title I, Section 46 (b) (5) of theRevised Administrative Code.

    Escritor was already a widow when she entered the

    judiciary in 1999. She started living with Luciano Qu ilapio, Jr.

    without the benefit of marriage more than twenty years ago

  • 8/13/2019 Consti Week5

    11/34

    11

    when her husband was still alive but living with another

    woman. They have a son. After ten years of living together,

    she executed on July 28, 1991 a Declaration of Pledging

    Faithfulness in conformity with their religious beliefs and has

    the approval of her congregation, the Jehovahs Witnesses

    and the Watch Tower and Bible Tract Society.

    Once all legal impediments for the couple are lifted, the

    validity of the declarations ceases and the couple should

    legalize their union. Insofar as the congregation is concerned,

    there is nothing immoral about the conjugal arrangement and

    they remain members in good standing in the congregation.Escritor appears to be sincere in her religious belief

    and practice and is not merely using the Declaration of

    Pledging Faithfulness to avoid punishment for immorality.

    Ministers from her congregation testified on the authenticity

    of this practice and that this is to make the union of their

    members under such circumstances honorable before God

    and men.

    The court could not rule on the issue of whether or not

    Escritor was to be held administratively liable so the case was

    remanded to the Office of the Court Administrator (OCA) and

    ordered the Office of the Solicitor General (OSG) to intervene

    in the case.

    ISSUE:

    Whether or not Escritors religious belief and practiceshould warrant her claim of religious freedom under Article

    III, Section 5 of the Constitution.

    HELD:

    The administrative complaint was dismissed. The OSG

    categorically concedes that the sincerity and centrality of

    Escritors claimed religious belief and practice are beyond

    serious doubt. Her request to be exempt from attending the

    flag ceremony on the ground of the Jehovahs Witnesses

    contrary belief and practice was duly noted. The OSG failed to

    demonstrate the gravest abuses, endangering paramount

    interests which could limit or override Escritors

    fundamental right to religious freedom.

    In this particular case and under these distinct

    circumstances, Escritors conjugal arrangement cannot be

    penalized as she has made out a case for exemption from the

    law based on her fundamental right to freedom of religion.

    Man stands accountable to an authority higher than the

    state.

    Soriano vs. La Guardia

    Soriano vs. La Guardia

    G.R. No. 164785. April 29, 2009

    Facts:

    On August 10, 2004, at around 10:00 p.m., petitioner, as hostof the program Ang Dating Daan, aired on UNTV 37, made

    obscene remarks against INC. Two days after, before the

    MTRCB, separate but almost identical affidavit-complaints

    were lodged by Jessie L. Galapon and seven other private

    respondents, all members of the Iglesia ni Cristo (INC),

    against petitioner in connection with the above broadcast.

    Respondent Michael M. Sandoval, who felt directly alluded to

    in petitioners remark, was then a minister of INC and a

    regular host of the TV program Ang Tamang Daan.

    Issue:

    Whether or not Sorianos statements during the televised

    Ang Dating Daan part of the religious discourse and within

    the protection of Section 5, Art.III.

    Held:No. Under the circumstances obtaining in this case, therefore,

    and considering the adverse effect of petitioners utterances

    on the viewers fundamental rights as well as petitioners

    clear violation of his duty as a public trustee, the MTRCB

    properly suspended him from appearing in Ang Dating Daan

    for three months. Furthermore, it cannot be properly

    asserted that petitioners suspension was an undue

    curtailment of his right to free speech either as a prior

    restraint or as a subsequent punishment. Aside from the

    reasons given above (re the paramount of viewers rights, the

    public trusteeship character of a broadcasters role and the

    power of the State to regulate broadcast media), a

    requirement that indecent language be avoided has itsprimary effect on the form, rather than the content, of

    serious communication. There are few, if any, thoughts that

    cannot be expressed by the use of less offensive language.

    G.R. No. 164785 March 15, 2010

    ELISEO F. SORIANO, Petitioner,

    vs.

    MA. CONSOLIZA P. LAGUARDIA, in her capacity as

    Chairperson of the Movie and Television Review and

    Classification Board, MOVIE AND TELEVISION REVIEW AND

    CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M.

    DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,

    CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M.

    SANDOVAL, and ROLDAN A. GAVINO, Respondents.

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

    G.R. No. 165636

    ELISEO F. SORIANO, Petitioner,

    vs.

    MOVIE AND TELEVISION REVIEW AND CLASSIFICATION

    BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL

    R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV,

    and FLORIMONDO C. ROUS, in their capacity as members of

    the Hearing and Adjudication Committee of the MTRCB,

    JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.

    HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE

    S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A.

    GAVINO, in their capacity as complainants before the

    MTRCB, Respondents.

    In these two petitions for certiorari and prohibition under

    Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set

    aside an order and a decision of the Movie and Television

    Review and Classification Board (MTRCB) in connection with

    certain utterances he made in his television show, Ang Dating

    Daan.

    Facts of the Case

    On August 10, 2004, at around 10:00 p.m., petitioner, ashost of the program Ang Dating Daan, aired on UNTV 37,

    made the following remarks:

    Lehitimong anak ng demonyo; sinungaling;

  • 8/13/2019 Consti Week5

    12/34

    12

    Gago ka talaga Michael, masahol ka pa sa putang babae o di

    ba. Yung putang babae ang gumagana lang doon yung ibaba,

    [dito] kay Michael ang gumagana ang itaas, o di ba! O,

    masahol pa sa putang babae yan. Sabi ng lola ko masahol pa

    sa putang babae yan. Sobra ang kasinungalingan ng mga

    demonyong ito.[1] x x x

    Two days after, before the MTRCB, separate but almost

    identical affidavit-complaints were lodged by Jessie L.

    Galapon and seven other private respondents, all members ofthe Iglesia ni Cristo (INC),[2] against petitioner in connection

    with the above broadcast. Respondent Michael M. Sandoval,

    who felt directly alluded to in petitioners remark, was then a

    minister of INC and a regular host of the TV program Ang

    Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a

    notice of the hearing on August 16, 2004 in relation to the

    alleged use of some cuss words in the August 10, 2004

    episode of Ang Dating Daan.[4]

    After a preliminary conference in which petitioner appeared,

    the MTRCB, by Order of August 16, 2004, preventively

    suspended the showing of Ang Dating Daan program for 20

    days, in accordance with Section 3(d) of Presidential Decree

    No. (PD) 1986, creating the MTRCB, in relation to Sec. 3,

    Chapter XIII of the 2004 Implementing Rules and Regulations(IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of

    Procedure.[5] The same order also set the case for

    preliminary investigation.

    The following day, petitioner sought reconsideration of the

    preventive suspension order, praying that Chairperson

    Consoliza P. Laguardia and two other members of the

    adjudication board recuse themselves from hearing the

    case.[6] Two days after, however, petitioner sought to

    withdraw[7] his motion for reconsideration, followed by the

    filing with this Court of a petition for certiorari and

    prohibition,[8] docketed as G.R. No. 164785, to nullify the

    preventive suspension order thus issued.

    On September 27, 2004, in Adm. Case No. 01-04, the MTRCB

    issued a decision, disposing as follows:

    WHEREFORE, in view of all the foregoing, a Decision is

    hereby rendered, finding respondent Soriano liable for his

    utterances and thereby imposing on him a penalty of three

    (3) months suspension from his program, Ang Dating Daan.

    Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV

    Channel 37 and its owner, PBC, are hereby exonerated for

    lack of evidence.

    SO ORDERED.[9]

    Petitioner then filed this petition for certiorari and

    prohibition with prayer for injunctive relief, docketed as G.R.

    No. 165636.

    In a Resolution dated April 4, 2005, the Court consolidated

    G.R. No. 164785 with G.R. No. 165636.

    In G.R. No. 164785, petitioner raises the following

    issues:

    THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY

    RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST

    THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL

    AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESS OF

    JURISDICTION

    (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT

    PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION

    ORDERS;

    (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT

    BENCH;

    (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER

    THE LAW;

    (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION;

    AND

    (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND

    EXPRESSION.[10]

    In G.R. No. 165636, petitioner relies on the following

    grounds:

    SECTION 3(C) OF [PD] 1986, IS PATENTLY

    UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS

    OF JURISDICTION x x x CONSIDERING THAT:

    ISECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,

    UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE

    OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT

    PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT

    CURTAILING THE SAME; CONSEQUENTLY, THE

    IMPLEMENTING RULES AND REGULATIONS, RULES OF

    PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT

    THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND

    ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE

    CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT

    BENCH;

    II

    SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,

    UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEEOF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER

    THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE,

    AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.,

    DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19

    OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS

    APPLIED IN THE CASE AT BENCH; AND

    III

    [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT

    PROVIDE FOR A SUFFICIENT STANDARD FOR ITS

    IMPLEMENTATION THEREBY RESULTING IN AN UNDUE

    DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT

    DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF

    ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OFPROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT

    THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND

    ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE

  • 8/13/2019 Consti Week5

    13/34

    13

    CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT

    BENCH[11]

    G.R. No. 164785

    We shall first dispose of the issues in G.R. No. 164785,

    regarding the assailed order of preventive suspension,

    although its implementability had already been overtaken

    and veritably been rendered moot by the equally assailed

    September 27, 2004 decision.

    It is petitioners threshold posture that the preventive

    suspension imposed against him and the relevant IRR

    provision authorizing it are invalid inasmuch as PD 1986 does

    not expressly authorize the MTRCB to issue preventive

    suspension.

    Petitioners contention is untenable.

    Administrative agencies have powers and functions which

    may be administrative, investigatory, regulatory, quasi-

    legislative, or quasi-judicial, or a mix of the five, as may be

    conferred by the Constitution or by statute.[12] They have in

    fine only such powers or authority as are granted or

    delegated, expressly or impliedly, by law.[13] And indetermining whether an agency has certain powers, the

    inquiry should be from the law itself. But once ascertained as

    existing, the authority given should be liberally construed.[14]

    A perusal of the MTRCBs basic mandate under PD 1986

    reveals the possession by the agency of the authority, albeit

    impliedly, to issue the challenged order of preventive

    suspension. And this authority stems naturally from, and is

    necessary for the exercise of, its power of regulation and

    supervision.

    Sec. 3 of PD 1986 pertinently provides the following:

    Section 3. Powers and Functions.The BOARD shall

    have the following functions, powers and duties:

    x x x x

    c) To approve or disapprove, delete objectionable portions

    from and/or prohibit the x x x production, x x x exhibition

    and/or television broadcast of the motion pictures, television

    programs and publicity materials subject of the preceding

    paragraph, which, in the judgment of the board applying

    contemporary Filipino cultural values as standard, are

    objectionable for being immoral, indecent, contrary to law

    and/or good customs, injurious to the prestige of the

    Republic of the Philippines or its people, or with a dangerous

    tendency to encourage the commission of violence or of

    wrong or crime such as but not limited to:x x x x

    vi) Those which are libelous or defamatory to the good name

    and reputation of any person, whether living or dead;

    x x x x

    (d) To supervise, regulate, and grant, deny or cancel,

    permits for the x x x production, copying, distribution, sale,

    lease, exhibition, and/or television broadcast of all motion

    pictures, television programs and publicity materials, to the

    end that no such pictures, programs and materials as are

    determined by the BOARD to be objectionable in accordance

    with paragraph (c) hereof shall be x x x produced, copied,

    reproduced, distributed, sold, leased, exhibited and/or

    broadcast by television;

    x x x xk) To exercise such powers and functions as may be

    necessary or incidental to the attainment of the purposes and

    objectives of this Act x x x. (Emphasis added.)

    The issuance of a preventive suspension comes well within

    the scope of the MTRCBs authority and functions expressly

    set forth in PD 1986, more particularly under its Sec. 3(d), as

    quoted above, which empowers the MTRCB to supervise,

    regulate, and grant, deny or cancel, permits for the x x x

    exhibition, and/or television broadcast of all motion pictures,

    television programs and publicity materials, to the end that

    no such pictures, programs and materials as are determined

    by the BOARD to be objectionable in accordance withparagraph (c) hereof shall be x x x exhibited and/or broadcast

    by television.

    Surely, the power to issue preventive suspension forms part

    of the MTRCBs express regulatory and supervisory statutory

    mandate and its investigatory and disciplinary authority

    subsumed in or implied from such mandate. Any other

    construal would render its power to regulate, supervise, or

    discipline illusory.

    Preventive suspension, it ought to be noted, is not a penalty

    by itself, being merely a preliminary step in an administrative

    investigation.[15] And the power to discipline and impose

    penalties, if granted, carries with it the power to investigateadministrative complaints and, during such investigation, to

    preventively suspend the person subject of the

    complaint.[16]

    To reiterate, preventive suspension authority of the MTRCB

    springs from its powers conferred under PD 1986. The MTRCB

    did not, as petitioner insinuates, empower itself to impose

    preventive suspension through the medium of the IRR of PD

    1986. It is true that the matter of imposing preventive

    suspension is embodied only in the IRR of PD 1986. Sec. 3,

    Chapter XIII of the IRR provides:

    Sec. 3. PRE VENTION SUSPENSION ORDER.Any time during

    the pendency of the case, and in order to prevent or stopfurther violations or for the interest and welfare of the public,

    the Chairman of the Board may issue a Preventive Suspension

    Order mandating the preventive x x x suspension of the

    permit/permits involved, and/or closure of the x x x television

    network, cable TV station x x x provided that the

    temporary/preventive order thus issued shall have a life of

    not more than twenty (20) days from the date of issuance.

    But the mere absence of a provision on preventive

    suspension in PD 1986, without more, would not work to

    deprive the MTRCB a basic disciplinary tool, such as

    preventive suspension. Recall that the MTRCB is expressly

    empowered by statute to regulate and supervise televisionprograms to obviate the exhibition or broadcast of, among

    others, indecent or immoral materials and to impose

    sanctions for violations and, corollarily, to prevent further

    violations as it investigates. Contrary to petitioners assertion,

  • 8/13/2019 Consti Week5

    14/34

    14

    the aforequoted Sec. 3 of the IRR neither amended PD 1986

    nor extended the effect of the law. Neither did the MTRCB,

    by imposing the assailed preventive suspension, outrun its

    authority under the law. Far from it. The preventive

    suspension was actually done in furtherance of the law,

    imposed pursuant, to repeat, to the MTRCBs duty of

    regulating or supervising television programs, pending a

    determination of whether or not there has actually been a

    violation. In the final analysis, Sec. 3, Chapter XIII of the 2004

    IRR merely formalized a power which PD 1986 bestowed,

    albeit impliedly, on MTRCB.

    Sec. 3(c) and (d) of PD 1986 finds application to the present

    case, sufficient to authorize the MTRCBs assailed action.

    Petitioners restrictive reading of PD 1986, limiting the

    MTRCB to functions within the literal confines of the law,

    would give the agency little leeway to operate, stifling and

    rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends

    to grant the MTRCB a wide room for flexibility in its

    operation. Sec. 3(k), we reiterate, provides, To exercise such

    powers and functions as may be necessary or incidental to

    the attainment of the purposes and objectives of this Act x x

    x. Indeed, the power to impose preventive suspension is

    one of the implied powers of MTRCB. As distinguished from

    express powers, implied powers are those that can beinferred or are implicit in the wordings or conferred by

    necessary or fair implication of the enabling act.[17] As we

    held in Angara v. Electoral Commission, when a general grant

    of power is conferred or a duty enjoined, every particular

    power necessary for the exercise of one or the performance

    of the other is also conferred by necessary implication.[18]

    Clearly, the power to impose preventive suspension pending

    investigation is one of the implied or inherent powers of

    MTRCB.

    We cannot agree with petitioners assertion that the

    aforequoted IRR provision on preventive suspension is

    applicable only to motion pictures and publicity materials.The scope of the MTRCBs authority extends beyond motion

    pictures. What the acronym MTRCB stands for would suggest

    as much. And while the law makes specific reference to the

    closure of a television network, the suspension of a television

    program is a far less punitive measure that can be

    undertaken, with the purpose of stopping further violations

    of PD 1986. Again, the MTRCB would regretfully be rendered

    ineffective should it be subject to the restrictions petitioner

    envisages.

    Just as untenable is petitioners argument on the nullity of

    the preventive suspension order on the ground of lack of

    hearing. As it were, the MTRCB handed out the assailed order

    after petitioner, in response to a written notice, appeared

    before that Board for a hearing on private respondents

    complaint. No less than petitioner admitted that the order

    was issued after the adjournment of the hearing,[19] proving

    that he had already appeared before the MTRCB. Under Sec.

    3, Chapter XIII of the IRR of PD 1986, preventive suspension

    shall issue *a+ny time during the pendency of the case. In

    this particular case, it was done after MTRCB duly apprised

    petitioner of his having possibly violated PD 1986[20] and of

    administrative complaints that had been filed against him for

    such violation.[21]

    At any event, that preventive suspension can validly be

    meted out even without a hearing.[22]

    Petitioner next faults the MTRCB for denying him his right tothe equal protection of the law, arguing that, owing to the

    preventive suspension order, he was unable to answer the

    criticisms coming from the INC ministers.

    Petitioners position does not persuade. The equal protection

    clause demands that all persons subject to legislation should

    be treated alike, under like circumstances and conditions

    both in the privileges conferred and liabilities imposed.*23+

    It guards against undue favor and individual privilege as well

    as hostile discrimination.[24] Surely, petitioner cannot, under

    the premises, place himself in the same shoes as the INC

    ministers, who, for one, are not facing administrative

    complaints before the MTRCB. For another, he offers noproof that the said ministers, in their TV programs, use

    language similar to that which he used in his own,

    necessitating the MTRCBs disciplinary action. If the

    immediate result of the preventive suspension order is that

    petitioner remains temporarily gagged and is unable to

    answer his critics, this does not become a deprivation of the

    equal protection guarantee. The Court need not belabor the

    fact that the circumstances of petitioner, as host of Ang

    Dating Daan, on one hand, and the INC ministers, as hosts of

    Ang Tamang Daan, on the other, are, within the purview of

    this case, simply too different to even consider whether or

    not there is a prima facie indication of oppressive inequality.

    Petitioner next injects the notion of religious freedom,

    submitting that what he uttered was religious speech, adding

    that words like putang babae were said in exercise of his

    religious freedom.

    The argument has no merit.

    The Court is at a loss to understand how petitioners

    utterances in question can come within the pale of Sec. 5,

    Article III of the 1987 Constitution on religious freedom. The

    section reads as follows:

    No law shall be made respecting the establishment of a

    religion, or prohibiting the free exercise thereof. The free

    exercise and enjoyment of religious profession and worship,

    without discrimination or preference, shall forever beallowed. No religious test shall be required for the exercise of

    civil or political rights.

    There is nothing in petitioners statements subject of the

    complaints expressing any particular religious belief, nothing

    furthering his avowed evangelical mission. The fact that he

    came out with his statements in a televised bible exposition

    program does not automatically accord them the character of

    a religious discourse. Plain and simple insults directed at

    another person cannot be elevated to the status of religious

    speech. Even petitioners attempts to place his words in

    context show that he was moved by anger and the need to

    seek retribution, not by any religious conviction. His claim,assuming its veracity, that some INC ministers distorted his

    statements respecting amounts Ang Dating Daan owed to a

    TV station does not convert the foul language used in

    retaliation as religious speech. We cannot accept that

  • 8/13/2019 Consti Week5

    15/34

    15

    petitioner made his statements in defense of his reputation

    and religion, as they constitute no intelligible defense or

    refutation of the alleged lies being spread by a rival religious

    group. They simply illustrate that petitioner had descended to

    the level of name-calling and foul-language discourse.

    Petitioner could have chosen to contradict and disprove his

    detractors, but opted for the low road.

    Petitioner, as a final point in G.R. No. 164785, would have

    the Court nullify the 20-day preventive suspension order,

    being, as insisted, an unconstitutional abridgement of the

    freedom of speech and expression and an impermissible prior

    restraint. The main issue tendered respecting the adverted

    violation and the arguments holding such issue dovetails with

    those challenging the three-month suspension imposed

    under the assailed September 27, 2004 MTRCB decision

    subject of review under G.R. No. 165636. Both overlapping

    issues and arguments shall be jointly addressed.

    G.R. No. 165636

    Petitioner urges the striking down of the decision suspending

    him from hosting Ang Dating Daan for three months on the

    main ground that the decision violates, apart from his

    religious freedom, his freedom of speech and expressionguaranteed under Sec. 4, Art. III of the Constitution, which

    reads:

    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 grievance.

    He would also have the Court declare PD 1986, its Sec. 3(c) in

    particular, unconstitutional for reasons articulated in this

    petition.

    We are not persuaded as shall be explained shortly. But first,we restate certain general concepts and principles underlying

    the freedom of speech and expression.

    It is settled that expressions by means of newspapers, radio,

    television, and motion pictures come within the broad

    protection of the free speech and expression clause.[25]

    Each method though, because of its dissimilar presence in the

    lives of people and accessibility to children, tends to present

    its own problems in the area of free speech protection, with

    broadcast media, of all forms of communication, enjoying a

    lesser degree of protection.[26] Just as settled is the rule that

    restrictions, be it in the form of prior restraint, e.g., judicial

    injunction against publication or threat of cancellation of

    license/franchise, or subsequent liability, whether in libel and

    damage suits, prosecution for sedition, or contempt

    proceedings, are anathema to the freedom of expression.

    Prior restraint means official government restrictions on the

    press or other forms of expression in advance of actual

    publication or dissemination.[27] The freedom of expression,

    as with the other freedoms encased in the Bill of Rights, is,

    however, not absolute. It may be regulated to some extent to

    serve important public interests, some forms of speech not

    being protected. As has been held, the limits of the freedom

    of expression are reached when the expression touches upon

    matters of essentially private concern.[28] In the oft-quoted

    expression of Justice Holmes, the constitutional guarantee

    obviously was not intended to give immunity for every

    possible use of language.*29+ From Lucas v. Royo comes thisline: *T+he freedom to express ones sentiments and belief

    does not grant one the license to vilify in public the honor

    and integrity of another. Any sentiments must be expressed

    within the proper forum and with proper regard for the rights

    of others.*30+

    Indeed, as noted in Chaplinsky v. State of New

    Hampshire,*31+ there are certain well-defined and narrowly

    limited classes of speech that are harmful, the prevention and

    punishment of which has never been thought to raise any

    Constitutional problems. In net effect, some forms of speech

    are not protected by the Constitution, meaning that

    restrictions on unprotected speech may be decreed withoutrunning afoul of the freedom of speech clause.[32] A speech

    would fall under the unprotected type if the utterances

    involved are no essential part of any exposition of ideas, and

    are of such slight social value as a step of truth that any

    benefit that may be derived from them is clearly outweighed

    by the social interest in order and morality.*33+ Being of

    little or no value, there is, in dealing with or regulating them,

    no imperative call for the application of the clear and present

    danger rule or the balancing-of-interest test, they being

    essentially modes of weighing competing values,[34] or, with

    like effect, determining which of the clashing interests should

    be advanced.

    Petitioner asserts that his utterance in question is a

    protected form of speech.

    The Court rules otherwise. It has been established in this

    jurisdiction that unprotected speech or low -value expression

    refers to libelous statements, obscenity or pornography, false

    or misleading advertisement, insulting or fighting words,

    i.e., those which by their very utterance inflict injury or tend

    to incite an immediate breach of peace and expression

    endangering national security.

    The Court finds that petitioners statement can be treated as

    obscene, at least with respect to the average child. Hence, it

    is, in that context, unprotected speech. In Fernando v. Court

    of Appeals, the Court expressed difficulty in formulating a

    definition of obscenity that would apply to all cases, butnonetheless stated the ensuing observations on the matter:

    There is no perfect definition of obscenity but the latest

    word is that of Miller v. California which established basic

    guidelines, to wit: (a) whether to the average person,

    applying contemporary standards would find the work, taken

    as a whole, appeals to the prurient interest; (b