ABS.docx

FREEDOM OF EXPRESSIONABS-CBN BROADCASTING vs COMELEC

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 and reported 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 Section 2, 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 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 by the Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

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 processesSpeculative 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. If at all, the outcome of one can only be indicative of the other.

2) OverbroadThe Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting centers --

does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.[45] There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.

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 from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their

1FREAH GENICE TOLOSA

respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.##

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.FACTS: Comelec came up with a resolution prohibiting the conduct of exit polls during elections for the reason that exit polls have the tendency to cause confusion.HELD: Conducting exit polls and reporting their results are valid exercises of freedom of speech and of the press. A limitation on them may be justified only by a danger of such substantive character that the state has a right to prevent. The concern of the Comelec cannot be justified since there is no showing that exit polls cause chaos in voting centers.

TELEBAP vs COMELEC Case DigestFacts: Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP) is an organization of lawyers of radio and television broadcasting companies. It was declared to be without legal standing to sue in this case as, among other reasons, it was not able to show that it was to suffer from actual or threatened injury as a result of the subject law. Petitioner GMA Network, on the other hand, had the requisite standing to bring the constitutional challenge. Petitioner operates radio and television broadcast stations in the Philippinesaffected by the enforcement of Section 92, B.P. No. 881.

Petitioners challenge the validity of Section 92, B.P. No. 881 which provides:“Comelec Time- The Commission shall procure radio and television time to be known as the “Comelec Time” which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of campaign.”

Petitioner contends that while Section 90 of the same law requires COMELEC to procure print space in newspapers and magazines with payment, Section 92 provides that air time shall be procured by COMELEC free of charge. Thus it contends that Section 92 singles out radio and television stations to provide free air time.

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992 presidential election and 1995 senatorial election and that it stands to suffer even more should it be required to do so again this year. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of air time to advertisers and to require these stations to provide free air time is to authorize unjust taking of private property. According to petitioners, in 1992 it lost P22,498,560.00 in providing free air time for one hour each day and, in this year’s elections, it stands to lost P58,980,850.00 in view of COMELEC’s requirement that it provide at least 30 minutes of prime time daily for such.

Issue:

Whether of not Section 92 of B.P. No. 881 denies radio and television broadcast companies the equal protection of the laws.

Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due process of law and without just compensation.

Held: Petitioner’s argument is without merit. All broadcasting, whether 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 that there are frequencies to assign. 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 to use them. Thus, such exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. In granting the privilege to operate broadcast stations and supervising radio and television stations, the state spends considerable public funds in licensing and supervising them.

The argument that the subject law singles out radio and television stations to provide free air time as against newspapers and magazines which require payment of just compensation for the print space they may provide is likewise without merit. Regulation of the broadcast industry requires spending of public funds which it does not do in the case of print media. To require the broadcast industry to provide free air time for COMELEC is a fair exchange for what the industry gets.

As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.

SWS vs Comelec

Social Weather Stations v. COMELECG.R. No. 147571 May 5, 2001

FACTS:


On the one hand, Social Weather Stations (SWS) is an institution conducting surveys in various fields. Kamahalan Publishing Corp., on the other hand, publishes the Manila Standard which is a newspaper of general circulation and features items of information including election surveys. Both SWS and Kamahalan are contesting the validity and enforcement of R.A. 9006 (Fair Election Act), especially section 5.4 which provides that surveys affecting national candidates shall not be published 15 days before an election and surveys affecting local candidates shall not be published 7 days before the election.

SWS wanted 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. Kamahalan, for its part, intends to publish election survey results up to the last day of the elections on May 14, 2001.

ISSUE:Whether or not the restriction on the publication of election survey constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint

RULING/RATIO:Yes, Section 5.4 of R.A. 9006 constitutes an unconstitutional abridgement of freedom of speech, expression, and the press.

The power of the COMELEC over media franchises is limited to ensuring equal opportunity, time, space, and the right to reply, as well as to fix reasonable rates of charge for the use of media facilities for public information and forms among candidates.

Here, the prohibition of speech is direct, absolute, and substantial. Nor does this section pass the O’brient test for content related regulation because (1) it suppresses one type of expression while allowing other types such as editorials, etc.; and (2) the restriction is greater than what is needed to protect government interest because the interest can e protected by narrower restrictions such as subsequent punishment.

Note: Justice Kapunan’s dissenting opinion basically says that the test of clear and present danger is inappropriate to use in order to test the validity of this section. Instead, he purports to engage in a form of balancing by weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights. However, he failed to show why, on the balance, the other considerations (for example, prevention of last minute pressure on voters) should outweigh the value of freedom of expression.

RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO, and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES,oppositors.

This is a motion for reconsideration of the decision denying petitioners request for permission to televise and broadcast live the trial of former President Estrada before the Sandiganbayan. The motion was filed by the Secretary of Justice, as one of the petitioners, who argues that there is really no conflict between the right of the people to public information and the freedom of the press, on the one hand, and, on the other, the right of the accused to a fair trial; that if there is a clash between these rights, it must be resolved in favor of the right of the people and the press because the people, as the repository of sovereignty, are entitled to information; and that live media coverage is a safeguard against attempts by any party to use the courts as instruments for the pursuit of selfish interests.

On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and radio coverage of his trial on the ground that its allowance will violate the sub judicerule and that, based on his experience with the impeachment trial, live media coverage will only pave the way for so-called "expert commentary" which can trigger massive demonstrations aimed at pressuring the Sandiganbayan to render a decision one way or the other. Mr. Estrada contends that the right of the people to information may be served through other means less distracting, degrading, and prejudicial than live TV and radio coverage.

The Court has considered the arguments of the parties on this important issue and, after due deliberation, finds no reason to alter or in any way modify its decision prohibiting live or real time broadcast by radio or television of the trial of the former president. By a vote of nine (9) to six (6) of its members,[1] the Court denies the motion for reconsideration of the Secretary of Justice.

In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices, [2] has resolved to order the audio-visual recording of the trial for documentary purposes.Seven (7) Justices[3] vote against the audio-visual recording of the trial.

What follows is the opinion of the majority.

Considering the significance of the trial before the Sandiganbayan of former President Estrada and the importance of preserving the records thereof, the Court believes that there should be an audio-visual recording of the proceedings. The recordings will not be for live or real time broadcast but for documentary purposes. Only later will they be available for public showing, after the Sandiganbayan shall have promulgated its decision in every case to which the recording pertains. The master film shall be deposited in the National Museum and the Records Management and Archives Office for historical preservation and exhibition pursuant to law.[4]

For the purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom and the movement of TV crews will be regulated, consistent with the dignity and solemnity of the proceedings. The trial shall be recorded in its entirety, except such portions thereof as the Sandiganbayan may decide should not be held public pursuant to Rule 119, 21 of the Revised Rules of Criminal Procedure. No comment shall be included in the documentary except annotations which may be necessary to explain certain scenes which are depicted.The audio-visual recordings shall be made under the supervision and control of the Sandiganbayan or its Division as the case may be.

There are several reasons for such televised recording. First, the hearings are of historic significance. They are an affirmation of our commitment to the rule that "the King is under no man, but he is under God and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern to our people who have a fundamental right to know how their


http://sc.judiciary.gov.ph/jurisprudence/2001/sep2001/am_01_4_03_sc.htm#_edn4




government is conducted. This right can be enhanced by audio-visual presentation. Third, audio-visual presentation is essential for the education and civic training of the people.

Above all, there is the need to keep audio-visual records of the hearings for documentary purposes. The recordings will be useful in preserving the essence of the proceedings in a way that the cold print cannot quite do because it cannot capture the sights and sounds of events. They will be primarily for the use of appellate courts in the event a review of the proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes necessary. The accuracy of the transcripts of stenographic notes taken during the trial can be checked by reference to the tapes.

On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in the proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles whether as counsel, witnesses, court personnel, or judges will be allayed. The possibility that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or even prevent, the just determination of the cases can be minimized. The possibility that judgment will be rendered by the popular tribunal before the court of justice can render its own will be avoided.

At the same time, concerns about the regularity and fairness of the trial - which, it may be assumed, is the concern of those opposed to, as much as of those in favor of, televised trials - will be addressed since the tapes will not be released for public showing until after the decision of the cases by the Sandiganbayan. By delaying the release of the tapes, much of the problem posed by real time TV and radio broadcast will be avoided.

Thus, many important purposes for preserving the record of the trials can be served by audio-visual recordings without impairing the right of the accused to a fair trial.

Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer Productions Pty. Ltd. v. Capulong,[5] this Court set aside a lower court's injunction restraining the filming of "Four Day Revolution," a documentary film depicting, among other things, the role of then Minister of National Defense Juan Ponce Enrile in the 1986 EDSA people power. This Court held: "A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character."[6]

No one can prevent the making of a movie based on the trial. But, at least, if a documentary record is made of the proceedings, any movie that may later be produced can be checked for its accuracy against such documentary and any attempt to distort the truth can thus be averted.

Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes clbres was made way back in 1971 by Paul Freund of the Harvard Law School. As he explained:

In fairness let me refer to an American experience many of my lay friends found similarly moving. An educational television network filmed a trial in Denver of a Black Panther leader on charges of resisting arrest, and broadcast the document in full, in four installments, several months after the case was concluded - concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect for the painstaking way in which the truth was searched for, for the ways whereby law copes with uncertainties and ambiguities through presumptions and burden of proof, and the sense of gravity with which judge and jury carried out their responsibilities.

I agree in general with the exclusion of television from the courtroom, for the familiar good reasons. And yet the use of television at a trial for documentary purposes, not for the broadcast of live news, and with the safeguards of completeness and consent, is an educational experiment that I would be prepared to welcome. Properly safeguarded and with suitable commentary, the depiction of an actual trial is an agency of enlightenment that could have few equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our educational system, is now a desperate need.[7]

Professor Freund's observation is as valid today as when it was made thirty years ago. It is perceptive for its recognition of the serious risks posed to the fair administration of justice by live TV and radio broadcasts, especially when emotions are running high on the issues stirred by a case, while at the same time acknowledging the necessity of keeping audio-visual recordings of the proceedings of celebrated cases, for public information and exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former President Estrada before the Sandiganbayan is hereby ordered to be made, for the account of the Sandiganbayan, under the following conditions: (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING SYSTEM, INC., Petitioners, vs.

HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents.

Facts:

Petitioners operate and run Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station, and Star FM DWIT Cauayan, an FM radio broadcast station, in Cauayan Citry, Isabela. Back in 1996, Newsounds commenced relocation of its broadcasting station,





management office, and transmitters on propery located in Minante 2, Cauayan City, Isabela.On July 1996, the Housing & Land Use Regulatory Board (HLURB) and Office of the Municipal Planning and Development Coordinator (OMPDC) affirmed and certified that the commercial structure to be constructed conformed to local zoning regulations, noting as well that the location is classified as a “commercial area”. The radio station was able to fully operate smoothly thereafter.In 2002 however, when petitioners applied for a renewal of mayor’s permit, City Zoning Administratior-Designate Bagnos Maximo refused to issue zoning clearance on the grounds that petitioners were not able to submit conversion papers showing that the agricultural land was converted to commercial land. Petitioners asked the court to compel the issuance of mayor’s permit but the court denied the action. In the meantime, the Department of Agrarian Reform (DAR) Region II office issued to petitioners a formal recognition of conversion of the property from agricultural to commercial.In 2003, petitioners again filed their application for renewal of mayor’s permit, attaching the DAR Order. Respondent Felicisimo Meer, acting City Administrator of Cauayan City denied the same, claiming that it was void on the grounds that they did not have record of the DAR Order.The deadline lapsed on Febuary 15, 2004, and respondents Meer and Racma Fernandez-Garcia, City Legal Officer of Cauayan City, closed the radio station. Due to the prvosion of Omnibus Election Code which prohibits the closure of radio station during the pendency of election period, COMELEC issued an order allowing the petitioners to operate before Febuary 17, 2004, but was barred again by respondent Mayor Ceasar Dy on the grounds that the radio station had no permit. Nonetheless, COMELEC allowed them to run again until June 10, 2004 after elections.Petitioners filed the case to the RTC and CA for the issuance of mayor’s permit but both courts denied the petition.A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits, and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. In case of Cauayan City, the authority to require a mayor’s permit was enacted through Ordinance No. 92-004, enacted in 1993. However, nothing in the ordinance requires an application for a mayor’s permit to submit “either an approved land conversion papers from DAR, showing that its property was converted from prime agricultural land or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the reclassification of property from agricultural to commercial land.In 1996, the HLURB issued a zoning decision that classified the property as commercial. Petitioners are also armed with several certifications stating that the property is indeed a commercial area. Also, petitioners paid real property taxes based on the classification of property as commercial without objections raised by the respondents.Petitioners argued that this consistent recognition by the local government of Cauayan of the commercial character of the property constitutes estoppels against respondents from denying the fact before the courts. The lower courts had ruled that “the government of Cauayan City is not bound by estoppels, but petitioners classified that this concept is understood to only refer to acts and mistakes of its official especially to those which are irregular.Issue:Whether the lower court is correct in contending that the government of Cauayan City is not bound by estoppels on the grounds that the state is immune against suits.Held:No. While it is true that the state cannot be put in estoppels by mistake or error of its officials or agents, there is an exception.Estoppels against the public are little favored. They should not be invoked except in rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel may be invoked against public authorities as well as against private individualsThus, when there is no convincing evidence to prove irregularity or negligence on the part of the government official whose acts are being disowned other than the bare assertion on the part of the State, the Supreme Court have declined to apply State immunity from estoppel. Herein, there is absolutely no evidence other than the bare assertions of the respondents that the Cauayan City government had previously erred when it certified that the property had been zoned for commercial use. The absence of any evidence other than bare assertions that the 1996 to 2001 certifications were incorrect lead to the ineluctable conclusion that respondents are estopped from asserting that the previous recognition of the property as commercial was wrong.Respondents were further estopped from disclaiming the previous consistent recognition by the Cauayan City government that the property was commercially zoned unless they had evidence, which they had none, that the local officials who issued such certifications acted irregularly in doing so. It is thus evident that respondents had no valid cause at all to even require petitioners to secure “approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land.”Respondents closure of petitioner’s radio stations is clearly tainted with ill motvies. Petitioners have been aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and his political dynasty. Such statement manifests and confirms that respondent’s denial of the renewal applications on the ground that property is commercial and merely a pretext, and their real agenda is to remove petitioners from Cauayan City and suppress the latter’s voice. This is a blatant violation of constitutional right to press freedom.WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant petition for mandamus is hereby GRANTED and respondents are directed to immediately issue petitioners’ zoning clearances and mayor’s permits for 2004 to petitioners.

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as PRESIDENT and GENERAL MANAGER of the GSIS, Petitioners,vs.DINNAH VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL RUBIO, ROWENA THERESE B. GRACIA, PILAR LAYCO, and ANTONIO JOSE LEGARDA, Respondents.FACTS:

Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A. Echavez, Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service pursuant to the Rules of Procedure in Administrative Investigation (RPAI) of GSIS Employees and Officials, III, D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service (URACCS), in accordance with Book V of the Administrative Code of 1987, committed as follows:


· That on 27 May 2005, respondent, wearing red shirt together with some employees, marched to or appeared simultaneously at or just outside the office of the Investigation Unit in a mass demonstration/rally of protest and support for Messrs. Mario Molina and Albert Velasco, the latter having surreptitiously entered the GSIS premises;

· That some of these employees badmouthed the security guards and the GSIS management and defiantly raised clenched fists led by Atty. Velasco who was barred by Hearing Officer Marvin R. Gatpayat in an Order dated 24 May 2005 from appearing as counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees;

· That respondent, together with other employees in utter contempt of CSC Resolution No. 021316, dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited Concerted Mass Actions in the Public Sector caused alarm and heightened some employees and disrupted the work at the Investigation Unit during office hours.

This episode was earlier reported to PGM Garcia, through an office memorandum dated May 31, 2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the same day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty. Lutgardo Barbo, issued a memorandum to each of the seven (7) respondents requiring them to explain in writing and under oath within three (3) days why they should not be administratively dealt with. Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others, submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was a planned mass action, the respondents explained that their act of going to the office of the GSIS-IU was a spontaneous reaction after learning that their former union president was there. Aside from some of them wanting to show their support, they were interested in that hearing as it might also affect them. For her part, respondent Villaviza submitted a separate letter explaining that she had a scheduled pre-hearing at the GSIS-IU that day and that she had informed her immediate supervisor about it, attaching a copy of the order of pre-hearing. These letters were not under oath.

PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service against each of the respondents, all dated June 4, 2005. Respondents were again directed to submit their written answers under oath within three (3) days from receipt thereof. None was filed. On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all seven (7) respondents guilty of the charges and meting out the penalty of one (1) year suspension plus the accessory penalties appurtenant thereto. On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser offense of Violation of Reasonable Office Rules and Regulations and reduced the penalty to reprimand. The CSC ruled that respondents were not denied their right to due process but there was no substantial evidence to hold them guilty of Conduct Prejudicial to the Best Interest of the Service. Instead, The actuation of the appellants in going to the IU, wearing red shirts, to witness a public hearing cannot be considered as constitutive of such offense. Appellants’ (respondents herein) assembly at the said office to express support to Velasco, their Union President, who pledged to defend them against any oppression by the GSIS management, can be considered as an exercise of their freedom of expression, a constitutionally guaranteed right. PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of Appeals via a Petition for Review under Rule 43 of the Rules on Civil Procedure. The CA upheld the CSC in this wise: The Civil Service Commission is correct when it found that the act sought to be punished hardly falls within the definition of a prohibited concerted activity or mass action. The petitioners failed to prove that the supposed concerted activity of the respondents resulted in work stoppage and caused prejudice to the public service. Only about twenty (20) out of more than a hundred employees at the main office, joined the activity sought to be punished. These employees, now respondents in this case, were assigned at different offices of the petitioner GSIS. Hence, despite the belated claim of the petitioners that the act complained of had created substantial disturbance inside the petitioner GSIS’ premises during office hours, there is nothing in the record that could support the claim that the operational capacity of petitioner GSIS was affected or reduced to substantial percentage when respondents gathered at the Investigation Unit. Despite the hazy claim of the petitioners that the gathering was intended to force the Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molina’s case and allow Atty. Velasco to represent Atty. Molina in his administrative case before petitioner GSIS, there is likewise no concrete and convincing evidence to prove that the gathering was made to demand or force concessions, economic or otherwise from the GSIS management or from the government. In fact, in the separate formal charges filed against the respondents, petitioners clearly alleged that respondents “marched to or appeared simultaneously at or just outside the office of the Investigation Unit in a mass demonstration/rally of protest and support for Mssrs. Mario Molina and Albert Velasco, the latter surreptitiously entered the GSIS premises.” Thus, petitioners are aware at the outset that the only apparent intention of the respondents in going to the IU was to show support to Atty. Mario Molina and Albert Velasco, their union officers. The belated assertion that the intention of the respondents in going to the IU was to disrupt the operation and pressure the GSIS administration to be lenient with Atty. Mario Molina and Albert Velasco, is only an afterthought.ISSUE: WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE PROVISIONS OF THE RULES OF COURT ON THE EFFECT OF FAILURE TO DENY THE ALLEGATIONS IN THE COMPLAINT AND FAILURE TO FILE ANSWER, WHERE THE RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE ANY RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.HELD:The Court finds no merit in the petition. Petitioners primarily question the probative value accorded to respondents’ letters of explanation in response to the memorandum of the GSIS-IU Manager. The respondents never filed their answers to the formal charges. The petitioners argue that there being no answers, the allegations in the formal charges that they filed should have been deemed admitted pursuant to Section 11, Rule 8 of the Rules of Court which provides: SECTION 11. Allegations not specifically denied deemed admitted.— Material averment in the complaint, other than those as to the amount of liquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied specifically and under oath. According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1, Section 4 of the Rules of Court which reads: SECTION 4. In what cases not applicable. – These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. The Court does not subscribe to the argument of the petitioners. Petitioners’ own rules, Rule XI, Section 4 of the GSIS’ Amended Policy and Procedural Guidelines No. 178-04, specifically provides: If the respondent fails to file his Answer within five (5) working days from receipt of the Formal Charge for the supporting evidence, when requested, he shall be considered to have waived his right to file an answer and the PGM or the Board of Trustees, in proper cases, shall render judgment, as may be warranted by the facts and evidence submitted by the prosecution.


A perusal of said section readily discloses that the failure of a respondent to file an answer merely translates to a waiver of “his right to file an answer.” There is nothing in the rule that says that the charges are deemed admitted. It has not done away with the burden of the complainant to prove the charges with clear and convincing evidence.

It is true that Section 4 of the Rules of Court provides that the rules can be applied in a “suppletory character.” Suppletory is defined as “supplying deficiencies.”It means that the provisions in the Rules of Court will be made to apply only where there is an insufficiency in the applicable rule. There is, however, no such deficiency as the rules of the GSIS are explicit in case of failure to file the required answer. What is clearly stated there is that GSIS may “render judgment as may be warranted by the facts and evidence submitted by the prosecution.” Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case, petitioners must remember that there remain averments that are not deemed admitted by the failure to deny the same. Among them are immaterial allegations and incorrect conclusions drawn from facts set out in the complaint. Thus, even if respondents failed to file their answer, it does not mean that all averments found in the complaint will be considered as true and correct in their entirety, and that the forthcoming decision will be rendered in favor of the petitioners. We must not forget that even in administrative proceedings, it is still the complainant, or in this case the petitioners, who have the burden of proving, with substantial evidence, the allegations in the complaint or in the formal charges.

SORIANO VS MRCB

Ang Dating Daan host Eliseo S. Soriano uttered the following statements in his TV program against Michael Sandoval (Iglesia ni Cristo’s minister and regular host of the TV program Ang Tamang Daan):

Lehitimong anak ng demonyo[!] Sinungaling [!]Gago ka talaga[,] Michael[!] [M]asahol 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. Sobra ang kasinungalingan ng mga demonyong ito.

As a result, The MTRCB initially slapped Soriano’s Ang Dating Daan, which was earlier given a “G” rating for general viewership, with a 20-day preventive suspension after a preliminary conference. Later, in a decision, it found him liable for his utterances, and was imposed a three-month suspension from his TV program Ang Dating Daan. Soriano challenged the order of the MTRCB.

HELD:

The SC ruled that “Soriano’s statement can be treated as obscene, at least with respect to the average child,” and thus his utterances cannot be considered as protected speech. Citing decisions from the US Supreme Court, the High Court said that the analysis should be “context based” and found the utterances to be obscene after considering the use of television broadcasting as a medium, the time of the show, and the “G” rating of the show, which are all factors that made the utterances susceptible to children viewers. The Court emphasized on how the uttered words could be easily understood by a child literally rather than in the context that they were used.”

The SC also said “that the suspension is not a prior restraint, but rather a “form of permissible administrative sanction or subsequent punishment.” In 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.” visit fellester.blogspot.com The Court said that the suspension “is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB,” rather, it was a sanction for “the indecent contents of his utterances in a “G” rated TV program.” (Soriano v. Laguardia; GR No. 165636, April 29, 2009)

Dissenting Opinion:

Chief Justice Reynato S. Puno, in a separate dissenting opinion, said that a single government action could be both a penalty and a prior restraint. The Chief Magistrate pointed out that the three month suspension takes such form because it also acts as a restraint to petitioner’s future speech and thus deserves a higher scrutiny than the “context based” approach that the majority applied. In voting to grant Soriano’s petition, the Chief Justice said that “in the absence of proof and reason, he [Soriano] should not be penalized with a three-month suspension that works as a prior restraint on his speech.”

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council

FACTS:

This case consists of 6 petitions challenging the constitutionality of RA 9372, “An Act to Secure the State and Protect our People from Terrorism,” aka Human Security Act of 2007.

Petitioner-organizations assert locus standi on the basis of being suspected “communist fronts” by the government, whereas individual petitioners invoke the “transcendental importance” doctrine and their status as citizens and taxpayers.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, and PCR allege they have been subjected to “close security surveillance by state security forces,” their members followed by “suspicious persons” and “vehicles with dark windshields,” and their offices monitored by “men with military build.” They likewise claim they have been branded as “enemies of the State.”

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD, and Agham would like the Court to take judicial notice of respondents’ alleged action of tagging them as militant organizations fronting for the CPP and NPA. They claim such tagging is tantamount to the effects of proscription without following the procedure under the law.

Meanwhile, IBP and CODAL base their claim of locus standi on their sworn duty to uphold the Constitution. Petitioners claim that RA 9372 is vague and broad, in that terms like “widespread and extraordinary fear and panic among the

populace” and “coerce the government to give in to an unlawful demand” are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

ISSUES:7

FREAH GENICE TOLOSA

1. WON petitioners’ resort to certiorari is proper NO.2. WON petitioners have locus standi NO.3. WON the Court can take judicial notice of the alleged “tagging” NO.4. WON petitioners can invoke the “transcendental importance” doctrine NO.5. WON petitioners can be conferred locus standi as they are taxpayers and citizens NO.6. WON petitioners were able to present an actual case or controversy NO.7. WON RA 9372 is vague and broad in defining the crime of terrorism NO.8. WON a penal statute may be assailed for being vague as applied to petitioners NO.9. WON there is merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity NO.

HELD AND RATIO:

1. Petition for certiorari is improper.a. Certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65

of the Rules of Court states that petition for certiorari applies when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

b. Petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

c. The power of judicial review has 4 requisites:i. There must be an actual case or controversy.ii. Petitioners must possess locus standi.iii. Question of constitutionality must be raised at the earliest opportunity.iv. The issue of constitutionality must be the lis mota of the case.

The present case lacks the 1st 2 requisites, which are the most essential.

2. Petitioners lack locus standi.a. Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure concrete

adverseness.b. In Anak Mindanao Party-List Group v. The Executive Secretary, locus standi has been defined as that requiring:

i. That the person assailing must have a direct and personal interest ANDii. That the person sustained or is in immediate danger of sustaining some direct inquiry as a result of the act

being challenged.c. For a concerned party to be allowed to raise a constitutional question, he must show that:

i. He has personally suffered some actual or threatened injury;ii. The injury is fairly traceable to the challenged action; ANDiii. The injury is likely to be redressed by a favorable action.

d. RA 9372 is a penal statute. While Chavez v. PCGG holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Such necessitates closer judicial scrutiny of locus standi.

e. The mere invocation of the duty to preserve the rule of law does no, however, suffice to clothe the IBP or any of its members with standing. They failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties.

f. Former Senator Ma. Ana Consuelo Madrigal who claims to have been the subject of “political surveillance” also lacks locus standi. The same is true for Wigberto Tañada and Osmeña III, who cite their being a human rights advocate and an oppositor, respectively. No concrete injury has been pinpointed, hence, no locus standi.

3. Court cannot take judicial notice of the alleged “tagging.”a. Matters of judicial notice have 3 material requisites:

i. matter must be one of common and general knowledgeii. must be well and authoritatively settled, not doubtful or uncertain or capable of accurate and ready

determinationiii. known to be within the limits of the jurisdiction of the court

b. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Hence, it can be said that judicial notice is limited to: (1) facts evidenced by public records and (2) facts of general notoriety.

c. A court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the Court has no constructive knowledge.

d. Petitioners’ apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9371 has been filed against them, 3 years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members.

e. Notwithstanding the statement of Ermita and Gonzales that the Arroyo administration will adopt the US and EU classification of CPP and NPA as terrorist organizations, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organization under RA 9372.

4. In Kilosbayan v. Guingona, to invoke the transcendental doctrine, the following are the determinants:a. The character of the funds or other assets involved in the caseb. The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency

or instrumentality of the government;c. The lack of any other party with a more direct and specific interest in the questions being raised

In the case at bar, there are other parties not before the Court with direct and specific interests in the questions being raised.

5. Petitioners cannot be conferred upon them as taxpayers and citizens.a. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, whereas citizen

standing must rest on direct and personal interest in the proceeding.


b. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law.

c. Generalized interest, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key.

6. Petitioners fail to present an actual case or controversy. None of them faces any charge under RA 9372.a. Judicial power operates only when there is an actual case or controversy. An actual case or controversy means an

existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.

b. Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest. The pleadings must show:i. an active antagonistic assertion of a legal right andii. a denial thereof

c. However, a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the presence of sufficient facts.

d. Prevailing American jurisprudence allows adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would be a justiciable controversy. However, in the case at bar, the petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity. No demonstrable threat has been established, much less a real and existing one.

e. Petitioners have yet to show any connection between the purported “surveillance” and the implementation of RA 9372. Petitioners obscure allegations of sporadic “surveillance” and supposedly being tagged as “communist fronts” in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function. If the case is merely theorized, it lies beyond judicial review for lack of ripeness. Allegations of abuse must be anchored on real events.

7. The doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases and that RA 9372 regulates conduct, not speech.

a. Romualdez v. Sandiganbayan: The overbreadth and the vagueness doctrines have special application only to free speech cases, and are not appropriate for testing the validity of penal statutes.

b. Romualdez v. COMELEC: A facial invalidation of criminal statutes is not appropriate, but the Court nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense under the Voter’s Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.

c. The aforementioned cases rely heavily on Justice Mendoza’s Separate Opinion in the Estrada case: Allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. A facial challenge is allowed to be made to a vague statute and to one, which is overbroad because of possible chilling effect upon protected speech. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect. If facial challenge is allowed, the State may well be prevented from enacting laws against socially harmful conduct. Overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes.

8. Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of “terrorism” in RA 9372 is legally impossible absent an actual or imminent charge against them.

a. The doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.i. A statute or acts suffers from the defect of vagueness when:

1. It lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in 2 ways:

a. Violates due process for failure to accord fair notice of conduct to avoidb. Leaves law enforcers unbridled discretion in carrying out its provisions and becomes an

arbitrary flexing of the Government muscle.ii. The overbreadth doctrine decrees that a governmental purpose to control or prevent activities

constitutionally subject to state regulations may not be achieved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

b. A “facial” challenge is likewise different from an “as applied” challenge.i. “As applied” challenge considers only extant facts affecting real litigants.ii. “Facial” challenge is an examination of the entire law, pinpointing its flaws and defects, not only on the

basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.

1. Under no case may ordinary penal statutes be subjected to a facial challenge. If facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible.

9. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity.a. Section 3 of RA 9372 provides the following elements of the crime of terrorism:

i. Offender commits an act punishable under RPC and the enumerated special penal laws;ii. Commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and

panic among the populace;iii. The offender is actuated by the desire to coerce the government to give in to an unlawful demand.

b. Petitioners contend that the element of “unlawful demand” in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What RA 9372 seeks to penalize is conduct, not speech.

c. Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of offender. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech.

Concurring opinion of Justice Abad:

- He concurs with the majority opinion, but he says he needs to emphasize that the grounds for dismissal in this case are more procedural


than substantive. Hence, when an actual controversy arises and when it becomes ripe for adjudication, the specific questions raised here may be raised again.

FREEDOM OF ASSEMBLY

Intergrated Bar of the Philippines, H. Harry L. Roque, et al. vs. Honorable Manila Mayor Jose “Lito” Atienza, G.R. No. 175241, February 24, 2010

IBP filed with the Office of the City Mayor of Manila an application for a permit to rally at the foot of Mendiola Bridge. The mayor issued a permit allowing the IBP to stage a rally on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge. The rally pushed through at Mendiola Bridge. A criminal action was thereafter instituted against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit.

The Supreme Court held that in modifying the permit outright, respondent Mayor gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. Respondent mayor 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 is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which “blank” denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.

Bayan, et al., Vs. Eduardo Ermita, et al., G.R. No. 169838 April 25, 2006 DIGEST

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 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 the health, 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 from the 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

Freedom of religion

Estrada v. Escritor1. Respondent is the Court interpreter of RTC Branch 253 in Las Pinas City. The complainant Estrada requested for an investigation of respondent for living with a man not her husband while she was still legally married and having borne a child within this live-in arrangement. Estrada believed that Escritor is committing a grossly immoral act which tarnishes the image of the judiciary, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.

2. Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago when her husband was still alive but living with another woman. She likewise admitted having a son with Quilapio but denies any liability for alleged grossly immoral conduct because, 1) She is a member of the Jehovah’s Witnesses and the Watch Tower Society, 2) That the conjugal arrangement was in conformity with their religious beliefs, and 3) That the conjugal arrangement with Quilapio has the approval of her congregation.

3. Escritor likewise claimed that she had executed a “Declaration of Pledging Faithfulness' in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed.

Held:Escritor was therefore held not administratively liable for grossly immoral conduct. Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion. The Court recognizes that state interests must be upheld in order that freedoms—including religious freedom—may be enjoyed.

In the area of religious exercise as preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that the state interest exists, man must be allowed to subscribe to the Infinite.

- See more at: http://lawsandfound.blogspot.com/2012/11/estrada-v-escritor-digest.html#sthash.O5QVGFGO.dpuf

SORIANO VS LA GUARDIAFACTSThe Minister of INC felt directly alluded by an offending remark made by Soriano in one of his episode in his regular program aired on UNTV 37, “Ang Dating Daan.” This ensued 8 private complainants who are members of INC to file an affidavit-complaint against herein petition (Soriano) before the MTRCB. Forthwith, the MTRCB sent petitioner a notice of the hearing in relation to the alleged use of some cuss words in the said episode. After a preliminary conference in which petitioner appeared, the MTRCB ordered preventive suspension of his 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. The petitioner sought reconsideration of the preventive suspension order, praying that Laguardia and two other members of the adjudication board recuse themselves from hearing the case, but withdrew the same two days after, and, instead filed with the SC of a petition for certiorari and prohibition to nullify the preventive suspension order thus issued. Meanwhile, in the administrative case filed against the respondent with the MTRCB, it was held that the respondent is liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from said program. He then filed petition for certiorari and prohibition with prayer for injunctive relief on the ground 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. ISSUE:WHETHER OR NOT THE MTRCB IS ENTITLED TO ISSUE PREVENTIVE SUSPENSION

RULING YES. 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. They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law. And in determining 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. The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), 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 with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television.” The power to issue preventive suspension forms part of the MTRCB’s 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 is not a penalty by itself, but merely a preliminary step in an administrative investigation. And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint. The mere absence of a provision on preventive suspension in PD 1986 would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. It is expressly empowered by statute to regulate and supervise television programs 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 petitioner’s assertion, 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. The preventive suspension was actually done in furtherance of the law, imposed pursuant to the MTRCB’s 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.

Austria v. NLRCKTA: Relationship of the church as an employer and the minister as an employee is purely secular in nature because it has no relation with the practice of faith, worship or doctrines of the church, such affairs are governed by labor laws. The Labor Code applies to all establishments, whether religious or not.

Facts:

The Seventh Day Adventists(SDA) is a religious corporation under Philippine law. The petitioner was a pastor of the SDA for 28 years from 1963 until 1991, when his services were terminated.

On various occasions from August to October 1991, Austria received several communications form Ibesate, the treasurer of the Negros Mission, asking him to admit accountability and responsibility for the church tithes and offerings collected by his wife, Thelma Austria, in his district and to remit the same to the Negros Mission.

The petitioner answered saying that he should not be made accountable since it was Pastor Buhat and Ibesate who authorized his wife to collect the tithes and offerings since he was very ill to be able to do the collecting.

A fact-finding committee was created to investigate. The petitioner received a letter of dismissal citing:1) Misappropriation of denominational funds;2) Willful breach of trust;3) Serious misconduct;4) Gross and habitual neglect of duties; and5) Commission of an offense against the person of employer's duly authorized representative as grounds for the termination of his services.

Petitioner filed a complaint with the Labor Arbiter for illegal dismissal, and sued the SDA for reinstatement and backwages plus damages. Decision was rendered in favor of petitioner.

SDA appealed to the NLRC. Decision was rendered in favor of respondent.

Issue:

1. Whether or not the termination of the services of the petitioner is an ecclesiastical affair, and, as such, involves the separation of church and state.

2. Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by petitioner against the SDA.

Held/Ratio:

1. No. The matter at hand relates to the church and its religious ministers but what is involved here is the relationship of the church as an employer and the minister as an employee, which is purely secular because it has no relationship with the practice of faith, worship or doctrines. The grounds invoked for petitioner’s dismissal are all based on Art. 282 of Labor Code.

2. Yes. SDA was exercising its management prerogative (not religious prerogative) to fire an employee which it believes is unfit for the job. It would have been a different case if Austria was expelled or excommunicated from the SDA.

Islamic Da'wah Council of the Philippines vs. Office of the Executive Secretary

Facts: The Islamic Da'wah Council of the Philippines, Inc. (IDCP), a corporation that operates under Department of Social Welfare and Development License SB-01-085, is a non-governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. It claims to be a federation of national Islamic organizations and an active member of international organizations such as the Constitutional Law II, 2005 ( 2 ) Narratives (Berne Guerrero) Regional Islamic Da'wah Council of Southeast Asia and the Pacific (RISEAP) and the World Assembly of Muslim Youth. The RISEAP accredited petitioner to issue halal2 certifications in the Philippines. Thus, among the functions IDCP carries out is to conduct seminars, orient manufacturers on halal food and issue halal certifications to qualified products and manufacturers. IDCP formulated in 1995 internal rules and procedures based on the Qur'an and the Sunnah for the analysis of food, inspection thereof and issuance of halal certifications. In that same year, IDCP began to issue, for a fee, certifications to qualified products and food manufacturers. IDCP even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine Patent Office under Patent 4-2000-03664. On 26 October 2001, the Office of the Executive Secretary issued Executive Order (EO) 465, series of 2001, creating the Philippine Halal Certification Scheme and designating the Office on Muslim Affairs (OMA) to oversee its implementation. Under the EO, OMA has the exclusive authority to issue halal certificates and perform other related regulatory activities. On 8 May 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification" was published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim consumers to buy only products with its official halal certification since those without said certification had not been subjected to careful analysis and therefore could contain pork or its derivatives. OMA also sent letters to food manufacturers asking them to secure the halal certification only from OMA lest they violate EO 46 and RA 4109. As a result, IDCP lost revenues after food manufacturers stopped securing certifications from it. IDCP filed a petition for prohibition, praying for the declaration of nullity of EO 46 and the prohibition of the Office of the Executive Secretary and OMA from implementing the subject EO.


Issue: Whether the OMA encroached ipon the religious freedom of Muslim organizatinos to interpret what food products are fit for Muslim consumption.

Held: OMA was created in 1981 through Executive Order 697 "to ensure the integration of Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, traditions, and institutions." OMA deals with the societal, legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution. Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim organizations like IDCP to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal food. There is no compelling justification for the government to deprive muslim organizations of their religious right to classify a product as halal, even on the premise that the health of muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the muslim Filipinos' right to health are already provided for in existing laws and ministered to by government agencies charged with ensuring that food products released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of muslims.

Valerde vs SJS

Facts:

2003, R political party filed a petition against P, sought the interpretation of several constitutional provisions,specifically on the separation of church and state, wanted relief on the constitutionality of the acts of religiousleaders endorsing a candidate for an elective office, or urging or requiring members of their flock to vote for aspecified candidate. The religious leaders (Cardinal Sin, Eddie Villanueva, Eli Soriano, Mike Velarde, EranoManalo) said there was no cause of action against them and no justiciable controversy. The court a quo opined thatthe endorsement of specific candidates in an election to any public office is a clear violation of the separation clause.The decision contained no statement of facts, much less an assessment, or of the court’s findings as to probablefacts, beginning with a statement of the nature of the action and then the question, and then a brief explanation of theprovisions involved, and then to a full-length opinion on the nature and the extent of the separation of church andstate. Without stating the final conclusion or specifying the relief granted, the decision ended with “So ordered.”Issue:

Whether or not the endorsement is violative of the constitution.

Held:

There is no justiciable controversy since the petition did not sufficiently state what specific legal right of P wasviolated by R, did not state what acts were in breach of rights or the constitution. R did not state ultimate facts. Rmerely speculated without facts that, as religious leaders, P had endorsed or threatened to endorse candidates forelective office, and that it posed a clear and present danger of serious erosion of people’s faith in the electorlaprocess, reinforcing the belief that religious leaders determine the ultimate result of the elections, violative ofseparation clause. No. Furthermore, R did not ask for a declaration of rights, nor stoppage of and threatenedviolation; it merely asked for an advisory opinion. R did not state any certainty that loss for them will occur or thatasserted rights will be invaded. Not even transcendental importance. The initiatory pleading of SJS immediatelyrevealed gross inadequacy, contained no element of ultimate facts upon petitioner relied for its claim. It did notspecify the relief sought, merely asked for answer to a hypothetical question. “Endorsement of specific candidates inan election to any public office is a clear violation of the separation clause,” found on page10 of the decision is notsufficient.But whether or not endorsements by religious leaders is unconstitutional is of paramount interest, for it concerns thegovernance of the country and its people. R’s counsel utterly failed to convince the court that there are enoughfactual and legal bases to resolve the paramount issue. OSG sided with P insofar as there were no facts to supportthe petition. Even R claimed there were no factual allegations.

Taruc vs. Bishop Dela Cruz

Facts:Petitioners were lay members of the Philippine Independent Church (PIC). On June 28, 1993, Bishop de la Cruz declared

petitioners expelled/excommunicated from the Philippine Independent Church. Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with preliminary injunction against Bishop de la Cruz before the Regional Trial Court.They contended that their expulsion was illegal because it was done without trial thus violating their right to due process of law.

Issue:Whether or not there was a violation of religious rights in this case?

Held:No. The expulsion/excommunication of members of a religious institution/organization is a matter best left to the discretion of

the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church regulations. “Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of civil or property rights. Those rights may be the subject of litigation in a civil court, and the courts have jurisdiction to determine controverted claims to the title, use, or possession of church property.” Obviously, there was no violation of a civil right in the present case.

Right to information


CHAVEZ VS PCGG Right to Information, access to public documents Facts:-Petitioner Francisco I Chavez (in his capacity as taxpayer, citizen and a former government official) initiated this original action seeking (1) to prohibit and “enjoin respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad — including the so-called Marcos gold hoard"; and (2) to “compel respondent[s] to make public all negotiations and agreement, be theyongoing or perfected, and all documents related to or relating to such negotiations andagreement between the PCGG and the Marcos heirs."-Chavez is the same person initiated the prosecution of the Marcoses and their cronies whocommitted unmitigated plunder of the public treasury and the systematic subjugation of thecountry's economy; he says that what impelled him to bring this action were several newsreports 2 bannered in a number of broadsheets sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or share these assets.-PETITIONER DEMANDS that respondents make public any and all negotiations and agreementspertaining to PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that anycompromise on the alleged billions of ill-gotten wealth involves an issue of "paramount publicinterest," since it has a "debilitating effect on the country's economy" that would be greatlyprejudicial to the national interest of the Filipino people. Hence, the people in general have aright to know the transactions or deals being contrived and effected by the government.-RESPONDENT ANSWERS that they do not deny forging a compromise agreement with theMarcos heirs. They claim, though, that petitioner's action is premature, because there is noshowing that he has asked the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not become effective and binding.-PETITIONER INVOKES Sec. 7 [Article III]. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. -RESPONDENT ANSWERS that the above constitutional provisions refer to completed and operative official acts, not to those still being considered. Issue:Whether or not the Court could require the PCGG to disclose to the public the details of any agreement, perfected or not, with the Marcoses.

Ruling: “WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declaredNULL AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers andall government functionaries and officials who are or may be directly ot indirectly involved in therecovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED todisclose to the public the terms of any proposed compromise settlment, as well as the finalagreement, relating to such alleged ill-gotten wealth, in accordance with the discussionsembodied in this Decision. No pronouncement as to cost.”

RD: - The "information" and the "transactions" referred to in the subject provisions of the Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exactlimitations within which the right may be exercised or the correlative state duty may be obliged.However, the following are some of the recognized restrictions:(1) national security matters and intelligence information - there is a governmental privilege against public disclosure with respect to state secretsregarding military, diplomatic and other national security matters. 24 But where there isno need to protect such state secrets, the privilege may not be invoked to withholddocuments and other information, 25 provided that they are examined "in strictconfidence" and given "scrupulous protection." (2) trade secrets and banking transactions -trade or industrial secrets (pursuant to the Intellectual Property Code 27 and other relatedlaws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28)are also exempted from compulsory disclosure (3) criminal matters - Also excluded are classified law enforcement matters, such as those relating to theapprehension, the prosecution and the detention of criminals, which courts neither maynor inquire into prior to such arrest, detention and prosecution. Efforts at effective lawenforcement would be seriously jeopardized by free public access to, for example, policeinformation regarding rescue operations, the whereabouts of fugitives, or leads on covertcriminal activities.(4) other confidential information. - The Ethical Standards Act 31 further prohibits public officials and employees from usingor divulging "confidential or classified information officially known to them by reason oftheir office and not made available to the public." Other acknowledged limitations toinformation access include diplomatic correspondence, closed door Cabinet meetings andexecutive sessions of either house of Congress, as well as the internal deliberations of theSupreme Court.- In Valmonte v. Belmonte Jr., the Court emphasized that the information sought must be


"matters of public concern," access to which may be limited by law. Similarly, the state policy offull public disclosure extends only to "transactions involving public interest" and may also be"subject to reasonable conditions prescribed by law."- As to the meanings of the terms "public interest" and "public concern," the Court, in Legaspi v.Civil Service Commission, elucidated: “In determining whether or not a particular information isof public concern there is no rigid test which can be applied. “ “Public concern" like "publicinterest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.”-As to whether or not the above cited constitutional provisions guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement, this same clarification was sought and clearly addressed by the constitutional commissioners during their deliberations, MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction? MR. OPLE. Yes, subject to reasonable safeguards on the national interest. - Considering the intent of the Constitution, the Court believes that it is incumbent upon thePCGG and its officers, as well as other government representatives, to disclose sufficient publicinformation on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed above— such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.

Chavez v Public Estate AuthorityFacts:On November 20, 1973, the government through the Commissioner of Public Highways signed a contract with the Construction and Development Corporation of the Philippines (CDCP) to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed land.On April 25, 1995 the PEA entered into a Joint Venture Agreement (JVA) with AMARI to develop the Freedom Islands. This JVA was entered into through negotiation without public bidding.The Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations, conducted a joint investigation. Among the conclusion are: that the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the public domain which the government has not classified as alienable lands and therefore PEA cannot alienate these lands, the certificates of the title covering the Freedom Islands are thus void, and the JVA itself is illegal.On December 5, 1997, President Ramos created a Legal Task Force to conduct a study on the legality of the JVA. The Task Force upheld the legality of the JVA, contrary to the conclusions of the Senate Committees.On April 27, 1998, Petitioner as taxpayer filed the instant petition for mandamus with prayer for the issuance of a writ of preliminary injunction and TRO. Petitioner contends the government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA. Furthermore, petitioner assails the sale to AMARI of lands of the public domains as blatant violation of Sec 3, Art XII of the Constitution prohibiting the sale of alienable lands of the public domain to private corporations. Petitioner assert that he seeks to enjoin the loss of billion of pesos in properties of the State that are of public dominion.

Issue:Whether or not the petitioner has legal standing to bring the suit.

Ratio Decidendi:The petitioner has standing to bring the taxpayer’s suit because the petition seeks to compel PEA to comply with its constitutional duties. This duties are particularly in answer of the right of citizens to information on matters of public concern, and of a constitutional provision intended to insure the equitable distribution of alienable lands of the public domain among Filipino citizens. Furthermore, the court considered that the petition raised matters of transcendental importance tot eh public. The mere fact that the petitioner is a citizen satisfies the requirement of personal interest when the proceeding involves the assertion of a public right. Also, ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities if the issues raise are of paramount public interest and if they immediately affect the social, economic and moral well being of the people.The amended JVA does not make the issue moot and academic since this compels the court to insure the government itself does not violate a provision of the Constitution intended to safeguard the national patrimony. The content of the amended JVA seeks to transfer title and ownership of reclaimed lands to a single corporation. The court does not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and the public.The instant case raises constitutional issues of transcendental importance to the public. Court can resolve this case without determining any factual issue related to the case. The instant case is a petition for mandamus which falls under the original jurisdiction of the Court. Furthermore, PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale of its lands. The principle of exhaustion of administrative remedies does not apply when the issue involved is purely legal or constitutional question.The right to information includes official information on on-going negotiations before a final agreement as required by the constitution.The Supreme Court granted the petition. PEA and Amari Coastal Bay Development Corporation are permanently enjoined from implementing the amended JVA which is hereby declared null and void ab initio.


NERI VS. SENATE COMMITTEE

FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People’s Republic of China.The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA.Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe.However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege”. In particular, he refused to answer the questions on:(a) whether or not President Arroyo followed up the NBN Project,(b) whether or not she directed him to prioritize it, and(c) whether or not she directed him to approve.He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the communications between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of respondent committees and an order for his arrest and detention until such time that he would appear and give his testimony.

ISSUE:Are the communications elicited by the subject three (3) questions covered by executive privilege?HELD:The communications are covered by executive privilege

The revocation of EO 464 (advised executive officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita when they are invited to legislative inquiries in aid of legislation.), does not in any way diminish the concept of executive privilege. This is because this concept has Constitutional underpinnings.

The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others.Several jurisprudence cited provide the elements of presidential communications privilege:1) The protected communication must relate to a “quintessential and non-delegable presidential power.”2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.50 We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege.The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE (CenPEG) v. COMMISSION ON ELECTIONS (2010)


Refresher: Comelec failed to provide plaintiffs with the source code of identified canvass machines despite repeated requests and demands. CenPEG is now praying for the issuance of a writ of mandamus, despite the lapse of the May 2010 elections, claiming that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud."

Issue: W/N COMELEC could be compelled to release the source code to CenPEG- YES

Doctrine: pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." - The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale.


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