G.R. No.

164785 April 29, 2009

ELISEO F. SORIANO, Petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity as
Chairperson of the Movie and Television Review and Classification Board, MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE
S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165636 April 29, 2009
ELISEO F. SORIANO Petitioner, vs. MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL
PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their
capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ,
CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A.
GAVINO, in their capacity as complainants before the MTRCB Respondents.

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to
nullify and set aside an order and a decision of the Movie and Television Review and Classification Board
(MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan.

Facts of the Case

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

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),2 against
petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly
alluded to in petitioner’s remark, was then a minister of INC and a regular host of the TV program Ang
Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in
relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004,
preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section
3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the
2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.5 The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves
from hearing the case.6 Two days after, however, petitioner sought to withdraw7 his motion for
reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,8 docketed
as G.R. No. 164785, to nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano
liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his
program, "Ang Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.

SO ORDERED.9

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as
G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

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

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]

DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS
NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE
OF PREVENTIVE SUSPENSION ORDERS; (B) BY REASON OF LACK OF DUE HEARING IN THE
CASE AT BENCH; (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW; (D)
FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND (E) FOR BEING VIOLATIVE OF
FREEDOM OF SPEECH AND EXPRESSION.10

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

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR

IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

I SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS
IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS
OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND
ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED
IN THE CASE AT BENCH; AND

III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION
OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES
FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered moot by
the equally assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him and the relevant IRR
provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue
preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory,
quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by
statute.12 They have in fine only such powers or authority as are granted or delegated, expressly or
impliedly, by law.13 And 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.14

A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems
naturally from, and is necessary for the exercise of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions, powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x
exhibition and/or television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino
cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of wrong or crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living
or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution,
sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which
empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition,
and/or television broadcast of all motion pictures, television programs and publicity materials, to the end
that no such pictures, programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television."
Surely, 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, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an
administrative investigation.15 And the power to discipline and impose penalties, if granted, carries with it
the power to investigate administrative complaints and, during such investigation, to preventively suspend
the person subject of the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD
1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension
through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is
embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case, and in order
to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board
may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits
involved, and/or closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of
issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work
to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise 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. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat, 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.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCB’s
assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to functions within the
literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile,
when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, "To exercise such powers and functions as may be necessary or incidental
to the attainment of the purposes and objectives of this Act x x x." Indeed, the power to impose preventive
suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied
powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair
implication of the enabling act.17 As we held in Angara v. Electoral Commission, when a general grant of
power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the
performance of the other is also conferred by necessary implication.18 Clearly, the power to impose
preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on preventive suspension is
applicable only to motion pictures and publicity materials. The scope of the MTRCB’s authority extends
beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law
makes specific reference to the closure of a television network, the suspension of a television program is a
far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD
1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions
petitioner envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive suspension order on the ground of
lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a
written notice, appeared before that Board for a hearing on private respondents’ complaint. No less than
petitioner admitted that the order was issued after the adjournment of the hearing,19 proving that he had
already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive
suspension shall issue "[a]ny time during the pendency of the case." In this particular case, it was done after
MTRCB duly apprised petitioner of his having possibly violated PD 198620 and of administrative
complaints that had been filed against him for such violation.21

At any event, that preventive suspension can validly be meted out even without a hearing.22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that,
owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC
ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all persons subject to
legislation should be treated alike, under like circumstances and conditions both in the privileges conferred
and liabilities imposed."23 It guards against undue favor and individual privilege as well as hostile
discrimination.24 Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC
ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers
no proof that the said ministers, in their TV programs, use language similar to that which he used in his
own, necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive suspension
order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become
a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances
of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang
Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not
there is a prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech,
adding that words like "putang babae" were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come within the pale of Sec.
5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any particular religious
belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in
a televised bible exposition program does not automatically accord them the character of a religious
discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious
speech. Even petitioner’s attempts to place his words in context show that he was moved by anger and the
need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC
ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his
statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation
of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had
descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted violation
and the arguments holding such issue dovetails with those challenging the three-month suspension imposed
under the assailed September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both
overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three
months on the main ground that the decision violates, apart from his religious freedom, his freedom of
speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.

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

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the
broad protection of the free speech and expression clause.25 Each method though, because of its dissimilar
presence in the lives of people and accessibility to children, tends to present its own problems in the area of
free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of
protection.26 Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial
injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether
in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom
of expression. Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.27 The freedom of expression, as with the
other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent
to serve important public interests, some forms of speech not being protected. As has been held, the limits
of the freedom of expression are reached when the expression touches upon matters of essentially private
concern.28 In the oft-quoted expression of Justice Holmes, the constitutional guarantee "obviously was not
intended to give immunity for every possible use of language."29 From Lucas v. Royo comes this line:
"[T]he freedom to express one’s sentiments and belief does not grant one the license to vilify in public the
honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper
regard for the rights of others."30

Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and narrowly
limited classes of speech that are harmful, the prevention and punishment of which has never been thought
to raise any Constitutional problems." In net effect, some forms of speech are not protected by the
Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the
freedom of speech clause.32 A speech would fall under the unprotected type if the utterances involved are
"no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and morality."33
Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application
of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of
weighing competing values,34 or, with like effect, determining which of the clashing interests should be
advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value
expression refers to libelous statements, obscenity or pornography, false or misleading advertisement,
insulting or "fighting words", i.e., those which by their very utterance inflict injury or tend to incite an
immediate breach of peace and expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless
stated the ensuing observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards
would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive." x x x What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.35

Following the contextual lessons of the cited case of Miller v. California,36 a patently offensive utterance
would come within the pale of the term obscenity should it appeal to the prurient interest of an average
listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an
average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!" may not
constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a
play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The
problem with the challenged statements is that they were uttered in a TV program that is rated "G" or for
general viewership, and in a time slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could
hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such
language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term
"putang babae" means "a female prostitute," a term wholly inappropriate for children, who could look it up
in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner
further used the terms, "ang gumagana lang doon yung ibaba," making reference to the female sexual organ
and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his
mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is
different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of
the words used, young minds, without the guidance of an adult, may, from their end, view this kind of
indecent speech as obscene, if they take these words literally and use them in their own speech or form
their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioner’s
words, when speaking of the average person in the test for obscenity, we are speaking of the average child,
not the average adult. The average child may not have the adult’s grasp of figures of speech, and may lack
the understanding that language may be colorful, and words may convey more than the literal meaning.
Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this
sense, we find petitioner’s utterances obscene and not entitled to protection under the umbrella of freedom
of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements
were made in a medium easily accessible to children. With respect to the young minds, said utterances are
to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is
veritably one of first impression, it being the first time that indecent speech communicated via television
and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal
Communications Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited in
Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich source of persuasive
lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the
category of protected speech depending on the context within which it was made, irresistibly suggesting
that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.

In FCC, seven of what were considered "filthy" words40 earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the
language used as "patently offensive" and "indecent" under a prohibiting law, though not necessarily
obscene. FCC added, however, that its declaratory order was issued in a "special factual context," referring,
in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the
question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the
affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium
and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the
monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling
state interest in putting FCC’s content-based regulatory action under scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected speech
that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or
idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of
the expression under well-defined standards tailored to serve a compelling state interest, without restraint
on the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow
from Gonzales v. Kalaw Katigbak,42 easily "reaches every home where there is a set [and where]
[c]hildren will likely be among the avid viewers of the programs therein shown"; second, the broadcast was
aired at the time of the day when there was a reasonable risk that children might be in the audience; and
third, petitioner uttered his speech on a "G" or "for general patronage" rated program. Under Sec. 2(A) of
Chapter IV of the IRR of the MTRCB, a show for general patronage is "[s]uitable for all ages," meaning
that the "material for television x x x in the judgment of the BOARD, does not contain anything unsuitable
for children and minors, and may be viewed without adult guidance or supervision." The words petitioner
used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as
indecent, as in petitioner’s utterances on a general-patronage rated TV program, it may be readily
proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography,43 false or misleading
advertisement,44 advocacy of imminent lawless action, and expression endangering national security. But
this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going
into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the
aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another instance of unprotected
speech, created by the necessity of protecting the welfare of our children. As unprotected speech,
petitioner’s utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his
utterances must present a clear and present danger of bringing about a substantive evil the State has a right
and duty to prevent and such danger must be grave and imminent.45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most permissive of speech
tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The
doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken
words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the government has the power to prohibit.46
Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when
necessary to prevent grave and immediate danger to interests which the government may lawfully protect.
As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the
overthrow of government.47 It was originally designed to determine the latitude which should be given to
speech that espouses anti-government action, or to have serious and substantial deleterious consequences
on the security and public order of the community.48 The clear and present danger rule has been applied to
this jurisdiction.49 As a standard of limitation on free speech and press, however, the clear and present
danger test is not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a
defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic
disaster.50 As we observed in Eastern Broadcasting Corporation, the clear and present danger test "does not
lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums."51

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts.
Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils
which do not clearly undermine national security. Since not all evils can be measured in terms of
"proximity and degree" the Court, however, in several cases—Ayer Productions v. Capulong52 and
Gonzales v. COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro,
in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the legislation under
constitutional attack interferes with the freedom of speech and assembly in a more generalized way and
where the effect of the speech and assembly in terms of the probability of realization of a specific danger is
not susceptible even of impressionistic calculation,"54 then the "balancing of interests" test can be applied.

The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances presented. x x x We must,
therefore, undertake the "delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and individual
interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the
basis for what has been called the "balancing-of-interests" test which has found application in more recent
decisions of the U.S. Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious
and detailed consideration of the interplay of interests observable in a given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting the
individual’s freedom, and the social importance and value of the freedom so restricted, "are to be judged in
the concrete, not on the basis of abstractions," a wide range of factors are necessarily relevant in
ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the
restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c)
the value and importance of the public interest sought to be secured by the legislation––the reference here
is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction
decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and
(e) whether the necessary safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom.55

This balancing of interest test, to borrow from Professor Kauper,56 rests on the theory that it is the court’s
function in a case before it when it finds public interests served by legislation, on the one hand, and the free
expression clause affected by it, on the other, to balance one against the other and arrive at a judgment
where the greater weight shall be placed. If, on balance, it appears that the public interest served by
restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find
the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms
are not absolute, not even those stated in the free speech and expression clause, and that they may be
abridged to some extent to serve appropriate and important interests.57 To the mind of the Court, the
balancing of interest doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was
slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of
his freedom of speech is ranged against the duty of the government to protect and promote the development
and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the government’s interest to protect and promote the interests and
welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s
prayer to continue as program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of
speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive
democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth
to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote
and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in
nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide
protection to the youth against illegal or improper activities which may prejudice their general well-being.
The Article on youth, approved on second reading by the Constitutional Commission, explained that the
State shall "extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality,
and practices which may foster racial, religious or other forms of discrimination."58

Indisputably, the State has a compelling interest in extending social protection to minors against all forms
of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in
helping parents, through regulatory mechanisms, protect their children’s minds from exposure to
undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-building.59 In the same way, the
State is mandated to support parents in the rearing of the youth for civic efficiency and the development of
moral character.60

Petitioner’s offensive and obscene language uttered in a television broadcast, without doubt, was easily
accessible to the children. His statements could have exposed children to a language that is unacceptable in
everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,61 constitute a substantial and compelling government interest in regulating petitioner’s
utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who, because of
age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written
message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacifica’s broadcast could
have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from
the young without restricting the expression at its source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to children. We held in Ginsberg v.
New York that the government’s interest in the "well-being of its youth" and in supporting "parents’ claim
to authority in their own household" justified the regulation of otherwise protected expression. The ease
with which children may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the
young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will be among the avid viewers of the
programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that
the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.62

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the
narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the
following considerations: (1) the use of television with its unique accessibility to children, as a medium of
broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating
Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the
following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a
two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy.
We have not decided that an occasional expletive in either setting would justify any sanction. x x x The
[FFC’s] decision rested entirely on a nuisance rationale under which context is all important. The concept
requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of
the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice
Sutherland wrote a ‘nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead
of the barnyard.’ We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of
its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the
exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent
prerogative, nay duty, to regulate and prevent should such action served and further compelling state
interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children
are in the audience is, in the graphic language of FCC, a "pig in the parlor." Public interest would be served
if the "pig" is reasonably restrained or even removed from the "parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment
that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional
breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio
broadcast censorship in view of its access to numerous people, including the young who must be insulated
from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a
motion picture or broadcasting a TV program. The Board can classify movies and television programs and
can cancel permits for exhibition of films or television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and
enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs.
Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be regulated in order to
avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its
character."63

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and television programs
or parts of either are fit for public consumption. It decides what movies are "immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people," and
what "tend to incite subversion, insurrection, rebellion or sedition," or "tend to undermine the faith and
confidence of the people in their government and/or duly constituted authorities," etc. Moreover, its
decisions are executory unless stopped by a court.64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of review and
prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech
guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are
required to get a permit before they air their television programs. Consequently, their right to enjoy their
freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became "a necessary evil" with the government taking the
role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory
scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will
interfere or co-opt each other’s signals. In this scheme, station owners and broadcasters in effect waived
their right to the full enjoyment of their right to freedom of speech in radio and television programs and
impliedly agreed that said right may be subject to prior restraint—denial of permit or subsequent
punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case 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 for such
broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent
punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his
television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter
without running afoul of the free speech clause. And the imposition is separate and distinct from the
criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed
of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the
imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioner’s
exercise of his freedom of speech via television, but for the indecent contents of his utterances in a "G"
rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of
speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts
have impliedly accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is
in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser
punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the
law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past
speech made on prime-time "G" rated TV program; it does not bar future speech of petitioner in other
television programs; it is a permissible subsequent administrative sanction; it should not be confused with a
prior restraint on speech. While not on all fours, the Court, in MTRCB,66 sustained the power of the
MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board
authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it
to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a "G"
rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, "the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and
print media." The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate,
which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts
should be subject to some form of regulation, considering the ease with which they can be accessed, and
violations of the regulations must be met with appropriate and proportional disciplinary action. The
suspension of a violating television program would be a sufficient punishment and serve as a deterrent for
those responsible. The prevention of the broadcast of petitioner’s television program is justified, and does
not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing
times, and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the
MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court
has earlier adequately explained why petitioner’s undue reliance on the religious freedom cannot lend
justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees
no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the
disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech.
Parenthetically, petitioner’s attempt to characterize his speech as a legitimate defense of his religion fails
miserably. He tries to place his words in perspective, arguing evidently as an afterthought that this was his
method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on
the night he uttered them in his television program, the word simply came out as profane language, without
any warning or guidance for undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal protection of the law,
suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need
to further delve into the fact that petitioner was afforded due process when he attended the hearing of the
MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB
proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not
provide for the range of imposable penalties that may be applied with respect to violations of the provisions
of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following
wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
delegate its legislative power to the two other branches of the government, subject to the exception that
local governments may over local affairs participate in its exercise. What cannot be delegated is the
authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of
the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or
not there is an undue delegation of legislative power, the inquiry must be directed to the scope and
definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what
job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may
indeed be the only way in which the legislative process can go forward. A distinction has rightfully been
made between delegation of power to make laws which necessarily involves a discretion as to what it shall
be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to
be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution
is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge
of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under
which the legislative command is to be effected. It is the criterion by which legislative purpose may be
carried out. Thereafter, the executive or administrative office designated may in pursuance of the above
guidelines promulgate supplemental rules and regulations.67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s protestation about
undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD
1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the
terms of the law.

Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first assumption being
that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for
violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of
power and functions, is charged with supervising and regulating, granting, denying, or canceling permits
for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or
broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB
"to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose
and objectives of [the law]." As earlier explained, the investiture of supervisory, regulatory, and disciplinary
power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or
the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in
Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for
the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not
specify the particular method to be followed or used by a government agency in the exercise of the power
vested in it by law, said agency has the authority to adopt any reasonable method to carry out its
function.68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise
the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive
action for violation of the law sought to be enforced. And would it not be logical too to say that the power
to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides
that agency with the power "[to] promulgate such rules and regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its purposes and objectives x x x." And Chapter
XIII, Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the immediate

filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to
Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion
pictures, television programs, and related promotional materials shall be penalized with suspension or
cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties
attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the
existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions
of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the
MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB
cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a
guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be
applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion
pictures, television programs, and publicity materials "applying contemporary Filipino cultural values as
standard," and, from there, determine whether these audio and video materials "are objectionable for being
immoral, indecent, contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it deems
proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular
statute.69 The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the non-delegation of legislative powers.70 Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary because of
"the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and
the increased difficulty of administering the law."71 Allowing the MTRCB some reasonable elbow-room in
its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in
fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the
offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent
with its mandate to effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986,
its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-
defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the
Board empowered to suspend the program host or even to prevent certain people from appearing in
television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or
cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its
jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only
persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be
considered to be within the decree’s penal or disciplinary operation. And when it exists, the reasonable
doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is
sought. Thus, the MTRCB’s decision in Administrative Case No. 01-04 dated September 27, 2004 and the
subsequent order issued pursuant to said decision must be modified. The suspension should cover only the
television program on which petitioner appeared and uttered the offensive and obscene language, which
sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioner’s flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech, does not lend itself to acceptance
in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say "any
act that restrains speech should be greeted with furrowed brows" is not to say that any act that restrains or
regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech
and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby
AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As
thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE
(3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs.
COMMISSION ON ELECTIONS Respondent.

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make different
choices – choices we would not make for ourselves, choices we may disapprove of, even choices that may
shock or offend or anger us. However, choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important questions of public policy is a core value
protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what is
moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes,
however, that practical solutions are preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions
of the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution)
and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-
list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender identity;
that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-
point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections.6 Ang Ladlad laid out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate
and sexual relations with, individuals of a different gender, of the same gender, or more than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into
that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in
their lust one toward another; men with men working that which is unseemly, and receiving in themselves
that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of
those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards
decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to
law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of
prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and
fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing
such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes,
acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1)
glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust
or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and
edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated
or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of
the government, ours too is the State’s avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking
for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed
sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race.
But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a
tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s – only
that their interests have not been brought to the attention of the nation because of their under representation.
Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under the party-list system will remain
just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right,
and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or
legal equality of homosexual relations," as in the case of race or religion or belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is
there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being adopted
as moral parameters and precepts are generally accepted public morals. They are possibly religious-based,
but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped [sic] into society and these are not
publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications
and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is
clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who
are already of age’ It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694
of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies
or disregards decency or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12
Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in
order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,
2010, effective immediately and continuing until further orders from this Court, directing the COMELEC
to cease and desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the Constitution,
the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted
on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed
that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well as constituted violations of the Philippines’ international
obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
petitioner’s application for registration since there was no basis for COMELEC’s allegations of immorality.
It also opined that LGBTs have their own special interests and concerns which should have been recognized
by the COMELEC as a separate classification. However, insofar as the purported violations of petitioner’s
freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no
restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and
RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence
contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the
sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated,
but whether a particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it
had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it
said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-existence were already available to the COMELEC
prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated
afterthought, a change in respondent’s theory, and a serious violation of petitioner’s right to procedural due
process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged
that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it
had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion
group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s
findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang
Ladlad’s principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation
of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines
in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for
is "government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification
is inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise,
if government relies upon religious beliefs in formulating public policies and morals, the resulting policies
and morals would require conformity to what some might regard as religious programs or agenda. The non-
believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief,
i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens.1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral disapprobation punishable by law.
After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions
of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular
purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of
the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's
religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strive to uphold religious
liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC
argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because of
the danger it poses to the people especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with individuals of the same gender is
a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society
without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind
this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that
the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that "there should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than
one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought
and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the
intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or
another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of
morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from
our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a
civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation
of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination
of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket justifications
give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not
because of any particular morally reprehensible act. It is this selective targeting that implicates our equal
protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition
on classification. "Equality," said Aristotle, "consists in the same treatment of similar persons."33 The equal
protection clause guarantees that no person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same place and in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect
class, we will uphold the classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we
declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the ‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately
for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to
assume that public opinion is as the COMELEC describes it, the asserted state interest here – that is, moral
disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational
basis review under the equal protection clause. The COMELEC’s differentiation, and its unsubstantiated
claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation,
furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly situated.
State intrusion in this case is equally burdensome. Hence, laws of general application should apply with
equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar
as the party-list system is concerned does not imply that any other law distinguishing between
heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection
clause.38 We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under
the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and
impermissible classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society
of the validity of its position through normal democratic means.39 It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v.
Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has
access to the public square where people deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access
to the public square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws
will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups.
Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies – including
protection of religious freedom "not only for a minority, however small – not only for a majority, however
large – but for each of us" – the majority imposes upon itself a self-denying ordinance. It promises not to do
what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb.
Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country.
It follows that both expressions concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European
and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign and international
texts.42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues
we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a
particular expression of opinion, public institutions must show that their actions were caused by "something
more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political
party may campaign for a change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely because it seeks to publicly debate
controversial political issues in order to find solutions capable of satisfying everyone concerned.45 Only if
a political party incites violence or puts forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration the values of other members of the
community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on
Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has
been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to
vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-
list system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal
basis in the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human
rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be effectively enforced in
domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to
electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is
not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to
include "sexual orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs
and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to have access to public service. Whatever
form of constitution or government is in force, the Covenant requires States to adopt such legislative and
other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights
it protects. Article 25 lies at the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election,
such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise
eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such
as education, residence or descent, or by reason of political affiliation. No person should suffer
discrimination or disadvantage of any kind because of that person's candidacy. States parties should
indicate and explain the legislative provisions which exclude any group or category of persons from
elective office.50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines’ international law obligations, the blanket invocation of international law is not the panacea
for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application
of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which
petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52
Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international
law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or demands
is automatically a human right. This is not an arbitrary human intervention that may be added to or
subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader
context of needs that identifies many social desires as rights in order to further claims that international law
obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result
of the notion that if "wants" are couched in "rights" language, then they are no longer
controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the
"soft law" nomenclature, i.e., international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in
opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that
our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The
Commission on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.
 MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY and AIR TRANSPORTATION
OFFICE, Petitioners, vs. BERNARDO L. LOZADA, SR., and the HEIRS OF ROSARIO
MERCADO, namely, VICENTE LOZADA, MARIO M. LOZADA, MARCIA L. GODINEZ,
VIRGINIA L. FLORES, BERNARDO LOZADA, JR., DOLORES GACASAN, SOCORRO
CAFARO and ROSARIO LOZADA, represented by MARCIA LOZADA GODINEZ, Respondents.
G.R. No. 176625 February 25, 2010

NACHURA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse, annul,
and set aside the Decision[1] dated February 28, 2006 and the Resolution[2] dated February 7, 2007 of the
Court of Appeals (CA) (Cebu City), Twentieth Division, in CA-G.R. CV No. 65796.

The antecedent facts and proceedings are as follows:

Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of 1,017 square meters, more or
less, located in Lahug, Cebu City. Its original owner was Anastacio Deiparine when the same was subject
to expropriation proceedings, initiated by the Republic of the Philippines (Republic), represented by the
then Civil Aeronautics Administration (CAA), for the expansion and improvement of the Lahug Airport.
The case was filed with the then Court of First Instance of Cebu, Third Branch, and docketed as Civil Case
No. R-1881.

As early as 1947, the lots were already occupied by the U.S. Army. They were turned over to the Surplus
Property Commission, the Bureau of Aeronautics, the National Airport Corporation and then to the CAA.

During the pendency of the expropriation proceedings, respondent Bernardo L. Lozada, Sr. acquired Lot
No. 88 from Deiparine. Consequently, Transfer Certificate of Title (TCT) No. 9045 was issued in Lozada’s
name.

On December 29, 1961, the trial court rendered judgment in favor of the Republic and ordered the latter to
pay Lozada the fair market value of Lot No. 88, adjudged at P3.00 per square meter, with consequential
damages by way of legal interest computed from November 16, 1947—the time when the lot was first
occupied by the airport. Lozada received the amount of P3,018.00 by way of payment.

The affected landowners appealed. Pending appeal, the Air Transportation Office (ATO), formerly CAA,
proposed a compromise settlement whereby the owners of the lots affected by the expropriation
proceedings would either not appeal or withdraw their respective appeals in consideration of a commitment
that the expropriated lots would be resold at the price they were expropriated in the event that the ATO
would abandon the Lahug Airport, pursuant to an established policy involving similar cases. Because of
this promise, Lozada did not pursue his appeal. Thereafter, Lot No. 88 was transferred and registered in the
name of the Republic under TCT No. 25057.

The projected improvement and expansion plan of the old Lahug Airport, however, was not pursued.

Lozada, with the other landowners, contacted then CAA Director Vicente Rivera, Jr., requesting to
repurchase the lots, as per previous agreement. The CAA replied that there might still be a need for the
Lahug Airport to be used as an emergency DC-3 airport. It reiterated, however, the assurance that “should
this Office dispose and resell the properties which may be found to be no longer necessary as an airport,
then the policy of this Office is to give priority to the former owners subject to the approval of the
President.”

On November 29, 1989, then President Corazon C. Aquino issued a Memorandum to the Department of
Transportation, directing the transfer of general aviation operations of the Lahug Airport to the Mactan
International Airport before the end of 1990 and, upon such transfer, the closure of the Lahug Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act (R.A.) No. 6958, entitled “An Act
Creating the Mactan-Cebu International Airport Authority, Transferring Existing Assets of the Mactan
International Airport and the Lahug Airport to the Authority, Vesting the Authority with Power to
Administer and Operate the Mactan International Airport and the Lahug Airport, and For Other Purposes.”

From the date of the institution of the expropriation proceedings up to the present, the public purpose of the
said expropriation (expansion of the airport) was never actually initiated, realized, or implemented.
Instead, the old airport was converted into a commercial complex. Lot No. 88 became the site of a jail
known as Bagong Buhay Rehabilitation Complex, while a portion thereof was occupied by squatters.[3]
The old airport was converted into what is now known as the Ayala I.T. Park, a commercial area.

Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of possession and reconveyance of
ownership of Lot No. 88. The case was docketed as Civil Case No. CEB-18823 and was raffled to the
Regional Trial Court (RTC), Branch 57, Cebu City. The complaint substantially alleged as follows:

(a) Spouses Bernardo and Rosario Lozada were the registered owners of Lot No. 88 covered by TCT No.
9045;

(b) In the early 1960’s, the Republic sought to acquire by expropriation Lot No. 88, among others, in
connection with its program for the improvement and expansion of the Lahug Airport;

(c) A decision was rendered by the Court of First Instance in favor of the Government and against the land
owners, among whom was Bernardo Lozada, Sr. appealed therefrom;

(d) During the pendency of the appeal, the parties entered into a compromise settlement to the effect that
the subject property would be resold to the original owner at the same price when it was expropriated in the
event that the Government abandons the Lahug Airport;

(e) Title to Lot No. 88 was subsequently transferred to the Republic of the Philippines (TCT No. 25057);

(f) The projected expansion and improvement of the Lahug Airport did not materialize;

(g) Plaintiffs sought to repurchase their property from then CAA Director Vicente Rivera. The latter
replied by giving as assurance that priority would be given to the previous owners, subject to the approval
of the President, should CAA decide to dispose of the properties;

(h) On November 29, 1989, then President Corazon C. Aquino, through a Memorandum to the
Department of Transportation and Communications (DOTC), directed the transfer of general aviation
operations at the Lahug Airport to the Mactan-Cebu International Airport Authority;

(i) Since the public purpose for the expropriation no longer exists, the property must be returned to the
plaintiffs.[4]

In their Answer, petitioners asked for the immediate dismissal of the complaint. They specifically denied
that the Government had made assurances to reconvey Lot No. 88 to respondents in the event that the
property would no longer be needed for airport operations. Petitioners instead asserted that the judgment of
condemnation was unconditional, and respondents were, therefore, not entitled to recover the expropriated
property notwithstanding non-use or abandonment thereof.

After pretrial, but before trial on the merits, the parties stipulated on the following set of facts:

(1) The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate, situated in the City of Cebu,
containing an area of One Thousand Seventeen (1,017) square meters, more or less;

(2) The property was expropriated among several other properties in Lahug in favor of the Republic of the
Philippines by virtue of a Decision dated December 29, 1961 of the CFI of Cebu in Civil Case No. R-1881;
(3) The public purpose for which the property was expropriated was for the purpose of the Lahug Airport;

(4) After the expansion, the property was transferred in the name of MCIAA; [and]

(5) On November 29, 1989, then President Corazon C. Aquino directed the Department of Transportation
and Communication to transfer general aviation operations of the Lahug Airport to the Mactan-Cebu
International Airport Authority and to close the Lahug Airport after such transfer[.][5]

During trial, respondents presented Bernardo Lozada, Sr. as their lone witness, while petitioners presented
their own witness, Mactan-Cebu International Airport Authority legal assistant Michael Bacarisas.

On October 22, 1999, the RTC rendered its Decision, disposing as follows:

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment in favor of the plaintiffs,
Bernardo L. Lozada, Sr., and the heirs of Rosario Mercado, namely, Vicente M. Lozada, Marcia L.
Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L. Gacasan, Socorro L. Cafaro and Rosario
M. Lozada, represented by their attorney-in-fact Marcia Lozada Godinez, and against defendants Cebu-
Mactan International Airport Authority (MCIAA) and Air Transportation Office (ATO):

1. ordering MCIAA and ATO to restore to plaintiffs the possession and ownership of their land, Lot No. 88
Psd-821 (SWO-23803), upon payment of the expropriation price to plaintiffs; and

2. ordering the Register of Deeds to effect the transfer of the Certificate of Title from defendant[s] to
plaintiffs on Lot No. [88], cancelling TCT No. 20357 in the name of defendant MCIAA and to issue a new
title on the same lot in the name of Bernardo L. Lozada, Sr. and the heirs of Rosario Mercado, namely:
Vicente M. Lozada, Mario M. Lozada, Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr.,
Dolores L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada.

No pronouncement as to costs.

SO ORDERED.[6]

Aggrieved, petitioners interposed an appeal to the CA. After the filing of the necessary appellate briefs, the
CA rendered its assailed Decision dated February 28, 2006, denying petitioners’ appeal and affirming in
toto the Decision of the RTC, Branch 57, Cebu City. Petitioners’ motion for reconsideration was, likewise,
denied in the questioned CA Resolution dated February 7, 2007.

Hence, this petition arguing that: (1) the respondents utterly failed to prove that there was a repurchase
agreement or compromise settlement between them and the Government; (2) the judgment in Civil Case
No. R-1881 was absolute and unconditional, giving title in fee simple to the Republic; and (3) the
respondents’ claim of verbal assurances from government officials violates the Statute of Frauds.

The petition should be denied.

Petitioners anchor their claim to the controverted property on the supposition that the Decision in the
pertinent expropriation proceedings did not provide for the condition that should the intended use of Lot
No. 88 for the expansion of the Lahug Airport be aborted or abandoned, the property would revert to
respondents, being its former owners. Petitioners cite, in support of this position, Fery v. Municipality of
Cabanatuan,[7] which declared that the Government acquires only such rights in expropriated parcels of
land as may be allowed by the character of its title over the properties—

If x x x land is expropriated for a particular purpose, with the condition that when that purpose is ended or
abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. If x x x land is expropriated for a
public street and the expropriation is granted upon condition that the city can only use it for a public street,
then, of course, when the city abandons its use as a public street, it returns to the former owner, unless there
is some statutory provision to the contrary. x x x. If, upon the contrary, however, the decree of
expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property
of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does
not have the effect of defeating the title acquired by the expropriation proceedings. x x x.

When land has been acquired for public use in fee simple, unconditionally, either by the exercise of
eminent domain or by purchase, the former owner retains no right in the land, and the public use may be
abandoned, or the land may be devoted to a different use, without any impairment of the estate or title
acquired, or any reversion to the former owner. x x x.[8]

Contrary to the stance of petitioners, this Court had ruled otherwise in Heirs of Timoteo Moreno and Maria
Rotea v. Mactan-Cebu International Airport Authority,[9] thus—

Moreover, respondent MCIAA has brought to our attention a significant and telling portion in the Decision
in Civil Case No. R-1881 validating our discernment that the expropriation by the predecessors of
respondent was ordered under the running impression that Lahug Airport would continue in operation—

As for the public purpose of the expropriation proceeding, it cannot now be doubted. Although Mactan
Airport is being constructed, it does not take away the actual usefulness and importance of the Lahug
Airport: it is handling the air traffic both civilian and military. From it aircrafts fly to Mindanao and
Visayas and pass thru it on their flights to the North and Manila. Then, no evidence was adduced to show
how soon is the Mactan Airport to be placed in operation and whether the Lahug Airport will be closed
immediately thereafter. It is up to the other departments of the Government to determine said matters. The
Court cannot substitute its judgment for those of the said departments or agencies. In the absence of such
showing, the Court will presume that the Lahug Airport will continue to be in operation (emphasis
supplied).

While in the trial in Civil Case No. R-1881 [we] could have simply acknowledged the presence of public
purpose for the exercise of eminent domain regardless of the survival of Lahug Airport, the trial court in its
Decision chose not to do so but instead prefixed its finding of public purpose upon its understanding that
“Lahug Airport will continue to be in operation.” Verily, these meaningful statements in the body of the
Decision warrant the conclusion that the expropriated properties would remain to be so until it was
confirmed that Lahug Airport was no longer “in operation.” This inference further implies two (2) things:
(a) after the Lahug Airport ceased its undertaking as such and the expropriated lots were not being used for
any airport expansion project, the rights vis-à-vis the expropriated Lots Nos. 916 and 920 as between the
State and their former owners, petitioners herein, must be equitably adjusted; and (b) the foregoing
unmistakable declarations in the body of the Decision should merge with and become an intrinsic part of
the fallo thereof which under the premises is clearly inadequate since the dispositive portion is not in
accord with the findings as contained in the body thereof.[10]

Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety, wherein it is apparent that the
acquisition by the Republic of the expropriated lots was subject to the condition that the Lahug Airport
would continue its operation. The condition not having materialized because the airport had been
abandoned, the former owner should then be allowed to reacquire the expropriated property.[11]

On this note, we take this opportunity to revisit our ruling in Fery, which involved an expropriation suit
commenced upon parcels of land to be used as a site for a public market. Instead of putting up a public
market, respondent Cabanatuan constructed residential houses for lease on the area. Claiming that the
municipality lost its right to the property taken since it did not pursue its public purpose, petitioner Juan
Fery, the former owner of the lots expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in question, judgment
was rendered in favor of the municipality, following American jurisprudence, particularly City of Fort
Wayne v. Lake Shore & M.S. RY. Co.,[12] McConihay v. Theodore Wright,[13] and Reichling v. Covington
Lumber Co.,[14] all uniformly holding that the transfer to a third party of the expropriated real property,
which necessarily resulted in the abandonment of the particular public purpose for which the property was
taken, is not a ground for the recovery of the same by its previous owner, the title of the expropriating
agency being one of fee simple.

Obviously, Fery was not decided pursuant to our now sacredly held constitutional right that private
property shall not be taken for public use without just compensation.[15] It is well settled that the taking of
private property by the Government’s power of eminent domain is subject to two mandatory requirements:
(1) that it is for a particular public purpose; and (2) that just compensation be paid to the property owner.
These requirements partake of the nature of implied conditions that should be complied with to enable the
condemnor to keep the property expropriated.[16]

More particularly, with respect to the element of public use, the expropriator should commit to use the
property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file
another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said
property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of
expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of
the power of eminent domain, namely, the particular public purpose for which the property will be devoted.
Accordingly, the private property owner would be denied due process of law, and the judgment would
violate the property owner’s right to justice, fairness, and equity.

In light of these premises, we now expressly hold that the taking of private property, consequent to the
Government’s exercise of its power of eminent domain, is always subject to the condition that the property
be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or
intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they
so desire, may seek the reversion of the property, subject to the return of the amount of just compensation
received. In such a case, the exercise of the power of eminent domain has become improper for lack of the
required factual justification.[17]

Even without the foregoing declaration, in the instant case, on the question of whether respondents were
able to establish the existence of an oral compromise agreement that entitled them to repurchase Lot No. 88
should the operations of the Lahug Airport be abandoned, we rule in the affirmative.

It bears stressing that both the RTC, Branch 57, Cebu and the CA have passed upon this factual issue and
have declared, in no uncertain terms, that a compromise agreement was, in fact, entered into between the
Government and respondents, with the former undertaking to resell Lot No. 88 to the latter if the
improvement and expansion of the Lahug Airport would not be pursued. In affirming the factual finding of
the RTC to this effect, the CA declared—

Lozada’s testimony is cogent. An octogenarian widower-retiree and a resident of Moon Park, California
since 1974, he testified that government representatives verbally promised him and his late wife while the
expropriation proceedings were on-going that the government shall return the property if the purpose for
the expropriation no longer exists. This promise was made at the premises of the airport. As far as he
could remember, there were no expropriation proceedings against his property in 1952 because the first
notice of expropriation he received was in 1962. Based on the promise, he did not hire a lawyer. Lozada
was firm that he was promised that the lot would be reverted to him once the public use of the lot ceases.
He made it clear that the verbal promise was made in Lahug with other lot owners before the 1961 decision
was handed down, though he could not name the government representatives who made the promise. It
was just a verbal promise; nevertheless, it is binding. The fact that he could not supply the necessary
details for the establishment of his assertions during cross-examination, but that “When it will not be used
as intended, it will be returned back, we just believed in the government,” does not dismantle the credibility
and truthfulness of his allegation. This Court notes that he was 89 years old when he testified in November
1997 for an incident which happened decades ago. Still, he is a competent witness capable of perceiving
and making his perception known. The minor lapses are immaterial. The decision of the competency of a
witness rests primarily with the trial judge and must not be disturbed on appeal unless it is clear that it was
erroneous. The objection to his competency must be made before he has given any testimony or as soon as
the incompetency becomes apparent. Though Lozada is not part of the compromise agreement,[18] he
nevertheless adduced sufficient evidence to support his claim.[19]
As correctly found by the CA, unlike in Mactan Cebu International Airport Authority v. Court of Appeals,
[20] cited by petitioners, where respondent therein offered testimonies which were hearsay in nature, the
testimony of Lozada was based on personal knowledge as the assurance from the government was
personally made to him. His testimony on cross-examination destroyed neither his credibility as a witness
nor the truthfulness of his words.

Verily, factual findings of the trial court, especially when affirmed by the CA, are binding and conclusive
on this Court and may not be reviewed. A petition for certiorari under Rule 45 of the Rules of Court
contemplates only questions of law and not of fact.[21] Not one of the exceptions to this rule is present in
this case to warrant a reversal of such findings.

As regards the position of petitioners that respondents’ testimonial evidence violates the Statute of Frauds,
suffice it to state that the Statute of Frauds operates only with respect to executory contracts, and does not
apply to contracts which have been completely or partially performed, the rationale thereof being as
follows:

In executory contracts there is a wide field for fraud because unless they be in writing there is no palpable
evidence of the intention of the contracting parties. The statute has precisely been enacted to prevent fraud.
However, if a contract has been totally or partially performed, the exclusion of parol evidence would
promote fraud or bad faith, for it would enable the defendant to keep the benefits already delivered by him
from the transaction in litigation, and, at the same time, evade the obligations, responsibilities or liabilities
assumed or contracted by him thereby.[22]

In this case, the Statute of Frauds, invoked by petitioners to bar the claim of respondents for the
reacquisition of Lot No. 88, cannot apply, the oral compromise settlement having been partially performed.
By reason of such assurance made in their favor, respondents relied on the same by not pursuing their
appeal before the CA. Moreover, contrary to the claim of petitioners, the fact of Lozada’s eventual
conformity to the appraisal of Lot No. 88 and his seeking the correction of a clerical error in the judgment
as to the true area of Lot No. 88 do not conclusively establish that respondents absolutely parted with their
property. To our mind, these acts were simply meant to cooperate with the government, particularly
because of the oral promise made to them.

The right of respondents to repurchase Lot No. 88 may be enforced based on a constructive trust
constituted on the property held by the government in favor of the former. On this note, our ruling in Heirs
of Timoteo Moreno is instructive, viz.:

Mactan-Cebu International Airport Authority is correct in stating that one would not find an express
statement in the Decision in Civil Case No. R-1881 to the effect that “the [condemned] lot would return to
[the landowner] or that [the landowner] had a right to repurchase the same if the purpose for which it was
expropriated is ended or abandoned or if the property was to be used other than as the Lahug Airport.” This
omission notwithstanding, and while the inclusion of this pronouncement in the judgment of condemnation
would have been ideal, such precision is not absolutely necessary nor is it fatal to the cause of petitioners
herein. No doubt, the return or repurchase of the condemned properties of petitioners could be readily
justified as the manifest legal effect or consequence of the trial court’s underlying presumption that “Lahug
Airport will continue to be in operation” when it granted the complaint for eminent domain and the airport
discontinued its activities.

The predicament of petitioners involves a constructive trust, one that is akin to the implied trust referred to
in Art. 1454 of the Civil Code, “If an absolute conveyance of property is made in order to secure the
performance of an obligation of the grantor toward the grantee, a trust by virtue of law is established. If the
fulfillment of the obligation is offered by the grantor when it becomes due, he may demand the
reconveyance of the property to him.” In the case at bar, petitioners conveyed Lots No. 916 and 920 to the
government with the latter obliging itself to use the realties for the expansion of Lahug Airport; failing to
keep its bargain, the government can be compelled by petitioners to reconvey the parcels of land to them,
otherwise, petitioners would be denied the use of their properties upon a state of affairs that was not
conceived nor contemplated when the expropriation was authorized.

Although the symmetry between the instant case and the situation contemplated by Art. 1454 is not perfect,
the provision is undoubtedly applicable. For, as explained by an expert on the law of trusts: “The only
problem of great importance in the field of constructive trust is to decide whether in the numerous and
varying fact situations presented to the courts there is a wrongful holding of property and hence a
threatened unjust enrichment of the defendant.” Constructive trusts are fictions of equity which are bound
by no unyielding formula when they are used by courts as devices to remedy any situation in which the
holder of legal title may not in good conscience retain the beneficial interest.

In constructive trusts, the arrangement is temporary and passive in which the trustee’s sole duty is to
transfer the title and possession over the property to the plaintiff-beneficiary. Of course, the “wronged
party seeking the aid of a court of equity in establishing a constructive trust must himself do equity.”
Accordingly, the court will exercise its discretion in deciding what acts are required of the plaintiff-
beneficiary as conditions precedent to obtaining such decree and has the obligation to reimburse the trustee
the consideration received from the latter just as the plaintiff-beneficiary would if he proceeded on the
theory of rescission. In the good judgment of the court, the trustee may also be paid the necessary expenses
he may have incurred in sustaining the property, his fixed costs for improvements thereon, and the
monetary value of his services in managing the property to the extent that plaintiff-beneficiary will secure a
benefit from his acts.

The rights and obligations between the constructive trustee and the beneficiary, in this case, respondent
MCIAA and petitioners over Lots Nos. 916 and 920, are echoed in Art. 1190 of the Civil Code, “When the
conditions have for their purpose the extinguishment of an obligation to give, the parties, upon the
fulfillment of said conditions, shall return to each other what they have received x x x In case of the loss,
deterioration or improvement of the thing, the provisions which, with respect to the debtor, are laid down in
the preceding article shall be applied to the party who is bound to return x x x.”[23]

On the matter of the repurchase price, while petitioners are obliged to reconvey Lot No. 88 to respondents,
the latter must return to the former what they received as just compensation for the expropriation of the
property, plus legal interest to be computed from default, which in this case runs from the time petitioners
comply with their obligation to respondents.

Respondents must likewise pay petitioners the necessary expenses they may have incurred in maintaining
Lot No. 88, as well as the monetary value of their services in managing it to the extent that respondents
were benefited thereby.

Following Article 1187[24] of the Civil Code, petitioners may keep whatever income or fruits they may
have obtained from Lot No. 88, and respondents need not account for the interests that the amounts they
received as just compensation may have earned in the meantime.

In accordance with Article 1190[25] of the Civil Code vis-à-vis Article 1189, which provides that “(i)f a
thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor x x x,”
respondents, as creditors, do not have to pay, as part of the process of restitution, the appreciation in value
of Lot No. 88, which is a natural consequence of nature and time.[26]

WHEREFORE, the petition is DENIED. The February 28, 2006 Decision of the Court of Appeals,
affirming the October 22, 1999 Decision of the Regional Trial Court, Branch 87, Cebu City, and its
February 7, 2007 Resolution are AFFIRMED with MODIFICATION as follows:

1. Respondents are ORDERED to return to petitioners the just compensation they received for the
expropriation of Lot No. 88, plus legal interest, in the case of default, to be computed from the time
petitioners comply with their obligation to reconvey Lot No. 88 to them;

2. Respondents are ORDERED to pay petitioners the necessary expenses the latter incurred in maintaining
Lot No. 88, plus the monetary value of their services to the extent that respondents were benefited thereby;
3. Petitioners are ENTITLED to keep whatever fruits and income they may have obtained from Lot No.
88; and

4. Respondents are also ENTITLED to keep whatever interests the amounts they received as just
compensation may have earned in the meantime, as well as the appreciation in value of Lot No. 88, which
is a natural consequence of nature and time;

In light of the foregoing modifications, the case is REMANDED to the Regional Trial Court, Branch 57,
Cebu City, only for the purpose of receiving evidence on the amounts that respondents will have to pay
petitioners in accordance with this Court’s decision. No costs.

SO ORDERED.

G.R. No. 177607 January 19, 2009

LAND BANK OF THE PHILIPPINES, Petitioner, vs. PACITA AGRICULTURAL MULTI-
PURPOSE COOPERATIVE, INC., represented by its President, AGNES CUENCA and its Manager,
Hon. MARCELO AGUIRRE, JR., Respondents.

CHICO-NAZARIO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court are the Decision2
dated 12 December 2005 and Resolution3 dated 20 April 2007 of the Court of Appeals in CA-G.R. CV No.
73774. The appellate court decided to reverse and set aside the Decision4 of the Special Agrarian Court
(SAC) dated 18 May 2000 in CA-G.R. CV No. 73774, and resolved to deny the Motion for
Reconsideration of petitioner.

The factual antecedents of the case are as follows:

The eight parcels of land disputed in this case are all located in Barangay Ayungon, La Carlota City, Negros
Occidental, and contain an aggregate area of 34.95 hectares, more or less (collectively referred to herein as
the subject property). The subject property was previously covered by Transfer Certificates of Title (TCTs)
No. T-567, No. T-1203, No. T-1204, No. T-1205, No. T-1208, No. T-1209, No. T-1210, and No. T-1213 of
the Registry of Deeds for the City of La Carlota in the name of the Ayungon Agricultural Corporation
(AAC).

Sometime in 1972, the Department of Agrarian Reform (DAR) acquired the subject property under its
Operation Land Transfer Program, pursuant to Presidential Decree No. 27.5 The subject property was
thereafter distributed to farmer-beneficiaries. From the years 1978 to 1983, Certificates of Land Transfer
(CLTs) were issued to the said beneficiaries, and from the years 1986 to 1990, the corresponding
Emancipation Patents (EPs) were granted.6

On 10 February 1986 and 3 March 1987, petitioner Land Bank of the Philippines (LBP) paid in favor of the
AAC the amount of P35,778.70, the value of only two out of the eight parcels of land comprising the
subject property taken by the DAR in 1972, particularly, those covered by TCTs No. T-567 and No. T-
1205.7

On 28 May 1987, respondent Pacita Agricultural Multi-Purpose Cooperative, Inc. purchased the subject
property from the AAC.8 By the latter part of the year 1987, respondent inquired from the petitioner about
the balance of payment for the six other parcels of land constituting the subject property.

On 13 November 1987, petitioner, through its Assistant Vice President Ruben V. Mabagos, sent a letter9 to
respondent, stating that the value of the remaining parcels of land was pegged at P148,172.21.10
Respondent, however, refused to accept this valuation.

In the interregnum, Republic Act No. 665711 was signed into law by then President Corazon Aquino. The
said law took effect on 15 June 1988, after it was published in two newspapers of general circulation.
Republic Act No. 6657 was enacted to promote social justice to the landless farmers and provide "a more
equitable distribution and ownership of land with due regard for the rights of landowners to just
compensation and to the ecological needs of the nation.12 Section 4 of Republic Act No. 6657 provides that
the Comprehensive Agrarian Reform Law shall cover all public and private agricultural lands including
other lands of the public domain suitable for agriculture. Section 7 provides that rice and corn lands under
Presidential Decree No. 27, among other lands, will comprise Phase One of the acquisition plan and
distribution program. Section 75 states that the provisions of Presidential Decree No. 27 and Executive
Order No. 22813 and No. 229,14 and other laws not inconsistent with Republic Act No. 6657 shall have
suppletory effect.15

In a Memorandum16 dated 12 August 1994 addressed to respondent, petitioner reiterated that the value of
the remaining subject property amounted only to P148,172.21. In the same Memorandum, petitioner
required respondent to submit certain documentary requirements so that full payment for the subject
property could be finally effected. Respondent, through counsel, protested petitioner’s proposed value for
the remainder of the subject property and requested a revaluation.17

In October 1994, the DAR issued Administrative Order No. 13, Series of 1994 (A. O. No. 13),18 which
imposed, on the value of land not yet paid to the landowner, an increment of six percent (6%) yearly
interest, compounded from the date of coverage, with 21 October 1972 as the earliest date, up to 21
October 1994.

Petitioner then adjusted its proposed valuation for the remaining portions of the subject property by adding
the increment provided under A. O. No. 13, thus, increasing the same to P537,538.34.19 Respondent still
rejected the said amount, contending that petitioner committed a mistake in computing the increment.

Feeling aggrieved and without any other recourse, respondent filed, on 18 September 1995, a Petition for
Land Valuation and Determination of Just Compensation20 before the Regional Trial Court of Negros
Occidental against petitioner. The case was docketed as SPL. CAR CASE NO. 95-08 and was raffled to
Branch 54, the designated Special Agrarian Court (SAC).

In an Order dated 24 January 1996, the SAC allowed the amendment of the respondent’s Petition therein so
it may include additional parties for a complete determination of the case. In the Amended Petition in SPL.
CAR CASE NO. 95-08,21 the DAR, as well as the farmer-beneficiaries of the subject property, were
named as additional respondents. In its Amended Petition in SPL. CAR CASE NO. 95-08, herein
respondent prayed that the just compensation to be paid by petitioner for the rest of the subject property be
fixed at the amount of P2,763,622.5022 or higher. In the alternative, respondent prayed that Executive
Order No. 228 and A.O. No. 13 be declared unconstitutional for being violative of the due process clause of
the Constitution and the principle of just compensation.

On 18 May 2000, the SAC promulgated its Decision, decreeing that the valuation prescribed in Presidential
Decree No. 27 and Executive Order No. 228, which enactments have already been declared constitutional,
must be strictly applied. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1. The [herein petitioner], Land Bank of the Philippines, is hereby ordered to pay [herein respondent] for
the remaining 26.2514 hectares of rice land taken under Presidential Decree No. 27 in October 1972,
valuated at 112.5 cavans of 50 kilo palay per sack per hectare, and computed in accordance with Executive
Order No. 228, plus [an] increment of six percent (6%) interest and compounded per annum effective
October 21, 1972 until fully paid;23

2. The rights acquired by the farmer beneficiaries under Presidential Decree No. 27 shall be recognized and
respected; and

3. No pronouncement as to costs.24
Respondent filed a Motion for Clarificatory Order,25 alleging that the Decision of the SAC merely
provided for a formula to be used in determining the value of the land but did not provide the exact amount
therefor. Acting thereon, the SAC issued a Clarificatory Order26 on 22 June 2000, with the following
decree:

WHEREFORE, par. (1) of the dispositive portion of the DECISION dated May 18, 2000, (sic) is hereby
amended to read as follows:

1) The [herein petitioner], Land Bank of the Philippines, is hereby ordered to pay [herein respondent] for
the remaining 28.2514 hectares of rice land taken under Presidential Decree No. 27 on October 21, 1972
valuated at 112.5 cavans of 50-kilo palay per sack per hectare and computed in accordance with Executive
Order No. 228, plus increment of six (6%) percent interests (sic) and compounded per annum effective
October 21, 1972 until fully paid, and with the present accrued amount of P506,649.28.

Unsatisfied, respondent filed a Motion for Reconsideration27 of the SAC Decision dated 18 May 2000 and
Order dated 22 June 2000, but the same was denied by the SAC in an Order28 dated 20 September 2001.

Respondent, thus, filed an Appeal with the Court of Appeals under Rule 41 of the Rules of Court, which
was docketed as CA-G.R. CV No. 73774.

On 12 December 2005, the Court of Appeals promulgated its assailed Decision, the pertinent portions of
which provide:

We find for the [herein respondent].

There is no doubt that PD 27 and the implementing rule EO 228 are constitutional. Their constitutionality
has been upheld in the landmark case of Association of Small Landowners vs. DAR and reiterated in a long
line of cases. That notwithstanding, this Court opines that the application of the formula under PD 27 and
EO 228 in arriving at the just compensation in the case at bar is not only unjust, but is also oppressive to the
rights of [respondent].

Be it noted that the lands subject matter of this case were taken in 1972, but remained unpaid to this day.
The compensation offered by the [herein petitioner] in the amount of P148,172.21 for the remaining lands
was based on the land valuation some 20 years ago, at the time of its taking in 1972, pursuant to PD 27. EO
228, series of 1987 declared that the valuation of rice and corn lands covered by PD 27 shall be based on
the average gross production determined by the Barangay Committee on Land Production in accordance
with Department Memo Circular No. 26, series of 1973 and related issuances and regulation (sic) of the
DAR. The average gross production per hectare shall be multiplied by two and a half (2.5), the product of
which shall be multiplied by thirty-five pesos (P35.00), government support price for one cavan of 50 kilos
of palay on October 21, 1972, or thirty-one pesos (P31.00), the government support price for one cavan of
50 kilos of corn on October 21, 1972, and the amount arrived at shall be the value of the rice and corn land,
as the case may be, for the purpose of determining its cost to the farmer and compensation to the land
owner (sic). Following a literal interpretation of said rule, the price of rice and corn lands today would be
based on prices 20 years ago. If such were the case, it would clearly result in an injustice to the landowner.
No further argument is needed to illustrate the unjustness of fixing the price of palay at P35.00 per cavan
even if the payment will be made now.

The determination of just compensation under PD 27 is not final or conclusive. Determination of just
compensation is a judicial prerogative. Section 2 of Executive Order No. 228, however, may serve as a
guiding principle, or one of the factors in determining just compensation, but may not substitute the court’s
own judgment as to what amount should be awarded and how to arrive at such amount. A perusal of the
assailed decision shows that in arriving at the just compensation to be paid to the landowner, the lower
court strictly applied the provisions of PD 27 and EO 228, anchoring its argument solely on the ground that
the lands were taken pursuant to the said law, and even went on to state that the courts in treating the
valuation under PD 27 are bound by the formula set by law and there is not much room for discretion as in
the cases under the CARP. To reiterate, the determination of just compensation is a task unmistakably
within the prerogative of the courts. In determining just compensation, not only must the courts consider
the value of the land, but also other factors as well, in accordance with the particular circumstances of each
case. The resolution of just compensation cases for the taking of lands under agrarian reform is, after all,
essentially a judicial function.

Pertinent hereto is the recent case of Land Bank of the Philippines vs. Eli G. Natividad, et al., which we
partly quote hereunder, viz:

"Land Bank’s contention that the property was acquired for purposes of agrarian reform on October 21,
1972, the time of the effectivity of PD 27, ergo just compensation should be based on the value of the
property as of that time and not at the time of possession in 1993, is likewise erroneous. In Office of the
President, Malacañang, Manila v. Court of Appeals, we ruled that the seizure of the landholding did not
take place on the date of effectivity of PD 27 but would take effect on the payment of just compensation.

Under the factual circumstances of this case, the agrarian reform process is still incomplete as the just
compensation to be paid private respondents has yet to be settled. Considering the passage of Republic Act
No. 6657 (RA 6657) before the completion of this process, the just compensation should be determined and
the process concluded under the said law. Indeed, RA 6657 is the applicable law, with PD 27 and EO 228
having only suppletory effect.

xxxx

That just compensation should be determined in accordance with RA 6657, and not PD 27 and EO 228, is
especially imperative considering that just compensation should be the full and fair equivalent of the
property taken from its owner by the expropriator, the equivalent being real, substantial, full and ample."29
(Emphasis ours.)

On the application of the provisions of Republic Act No. 6657, the Court of Appeals further elucidated that:

Moreover, Section 75 of RA 6657 clearly states that the provisions of PD 27 and EO 228 shall only have a
suppletory effect. Section 7 of the Act also provides –

"SECTION 7. Priorities. – The DAR, in coordination with the PARC shall plan and program the acquisition
and distribution of all agricultural lands through a period of 10 year from the effectivity of this Act. Lands
shall be acquired and distributed as follows:

Phase One: Rice and Corn lands under P.D. 27; all idle or abandoned lands; all private lands voluntarily
offered by the owners for agrarian reform; . . . and all other lands owned by the government devoted to or
suitable for agriculture, which shall be acquired and distributed immediately upon the effectivity of this
Act, with the implementation to be completed within a period of not more than four (4) years."

This eloquently demonstrates that RA 6657 includes PD 27 lands among the properties which the DAR
shall acquire and distribute to the landless. And to facilitate the acquisition and distribution thereof,
Sections 16, 17 and 18 of the Act should be adhered to. In Association of Small Landowners of the
Philippines vs. Secretary of Agrarian Reform[,] this Court applied the provisions of RA 6657 to rice and
corn lands when it upheld the constitutionality of the payment of just compensation for PD 27 lands
through the different modes stated in Sec. 18." (sic)30

Accordingly, the Court of Appeals disposed of the case in this manner:

WHEREFORE, the appeal is GRANTED. The Decision appealed from is REVERSED and SET ASIDE.
The instant case is hereby remanded to the Regional Trial Court, Branch 54, Bacolod City sitting as a
Special Agrarian Court (SAC) for the recomputation of the value of the subject lands based on Sections 16,
17 and 18 of RA 6657.31
Petitioner moved for the reconsideration32 of the afore-quoted Decision, but the appellate court denied the
same in its assailed Order dated 20 April 2007.

Petitioner, thus, filed the Petition at bar, contending that the Court of Appeals committed serious errors of
law in the following instances:

I.

WHEN IT RENDERED THE QUESTIONED DECISION RETROACTIVELY APPLYING R.A. NO.

6657 TO A LAND ACQUIRED UNDER P.D. NO. 27/E.O. NO. 228, IN EFFECT DISREGARDING THE
AFOREMENTIONED LAWS AND THE SUPREME COURT RULING IN G.R. NO. 148223 TITLED
(sic) "FERNANDO GABATIN, ET AL., VS. LAND BANK OF THE PHILIPPINES," (25 NOVEMBER
2005).

II.

WHEN IT FAILED TO TAKE MANDATORY JUDICIAL NOTICE TO (sic) THE GOVERNMENT

SUPPORT PRICE (GSP) FOR [PALAY] PRESCRIBED IN P.D. NO. 27/E.O. NO. 228 AMOUNTING TO
THIRTY FIVE PESOS (PHP 35.00) FOR ONE (1) CAVAN OF 50 KILOS OF [PALAY].

III.

WHEN IT CONSIDERED P.D. NO. 27/E.O. 228 INFERIOR TO R.A. NO. 6657
NOTWITHSTANDING THE SUPREME COURT RULING IN SIGRE VS. COURT OF APPEALS THAT
THESE LAWS OPERATE DISTINCTLY FROM EACH OTHER.

Petitioner challenges the ruling of the Court of Appeals insofar as it retroactively applied Republic Act No.
6657 to the instant case, in spite of the fact that the said law does not provide for any retroactive
application. Petitioner argues that the 12 December 2005 Decision of the Court of Appeals runs afoul of the
pronouncement laid down in Gabatin v. Land Bank of the Philippines.33 In said case, the Court held that
the taking of private lands under the agrarian reform program was deemed effected on 21 October 1972,
when the landowners were deprived of ownership over their lands in favor of qualified beneficiaries,
pursuant to Executive Order No. 228 and by virtue of Presidential Decree No. 27. Hence, in computing the
value of the land for the payment of just compensation to the landowner, the time of taking in 1972 should
be made the basis. In such event, petitioner avers that no injustice will be inflicted upon the respondent,
inasmuch as the latter is entitled to receive the increment of six percent (6%) yearly interest compounded
annually pursuant to DAR A.O. No. 13, Series of 1994. Finally, petitioner contends that, although Section
75 of Republic Act No. 665734 states that Presidential Decree No. 27 and Executive Order No. 228 shall
have suppletory effect, these two executive issuances are not in any way inferior to Republic Act No. 6657,
nor have they been superseded by the statute.

The instant Petition is without merit.

Under Presidential Decree No. 27, Executive Order No. 22835 and A.O. No. 13, the following formula is
used to compute the land value for palay:

LV = 2.5 x AGP x GSP x (1.06) n

Where:

LV = Land Value,

AGP = Average Gross Production in cavan of 50 kilos in accordance with DAR Memorandum Circular No.
26, series of 1973,

P35 = Government Support Price for palay in 1972 pursuant to Executive Order No. 228,
n = number of years from date of tenancy up to effectivity date of A. O. No. 13.

On the other hand, Section 18 of Republic Act No. 6657 mandates that the LBP shall compensate the
landowner in such amount as may be agreed upon by the landowner, the DAR and the LBP or as may be
finally determined by the court as the just compensation for the land. According to Section 17 of Republic
Act No. 6657, in determining just compensation, the cost of acquisition of the land, the current value of the
like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations,
and the assessment made by government assessors shall be considered. The social and economic benefits
contributed by the farmers and the farmworkers and by the government to the property as well as the non-
payment of taxes or loans secured from any government financing institution on the said land shall be
considered as additional factors to determine its valuation.

In Gabatin v. Land Bank of the Philippines,36 the formula under Presidential Decree No. 27, Executive
Order No. 228 and A.O. No. 13 was applied. In Gabatin, the crux of the case was the valuation of the GSP
for one cavan of palay. In said case, the SAC fixed the government support price (GSP) of palay at the
current price of P400 as basis for the computation of the payment, and not the GSP at the time of the taking
in 1972. On appeal by therein respondent Land Bank of the Philippines, the Court of Appeals reversed the
ruling of the SAC. The case was then elevated to this Court, wherein therein petitioners set forth, inter alia,
the issue of whether just compensation in kind (palay) shall be appraised at the price of the commodity at
the time of the taking or at the time it was ordered paid by the SAC. The Court declared that the reckoning
period should be the time when the land was taken in 1972, based on the following ratiocination:

We must stress, at the outset, that the taking of private lands under the agrarian reform program partakes of
the nature of an expropriation proceeding. In a number of cases, we have stated that in computing the just
compensation for expropriation proceedings, it is the value of the land at the time of the taking, not at the
time of the rendition of judgment, which should be taken into consideration. This being so, then in
determining the value of the land for the payment of just compensation, the time of taking should be the
basis. In the instant case, since the dispute over the valuation of the land depends on the rate of the GSP
used in the equation, it necessarily follows that the GSP should be pegged at the time of the taking of the
properties.

In the instant case, the said taking of the properties was deemed effected on 21 October 1972, when the
petitioners were deprived of ownership over their lands in favor of qualified beneficiaries, pursuant to E.O.
No. 228 and by virtue of P.D. No. 27. The GSP for one cavan of palay at that time was at P35. Prescinding
from the foregoing discussion, the GSP should be fixed at said rate, which was the GSP at the time of the
taking of the subject properties.37 (Emphases ours.)

Since Gabatin, however, the Court has decided several cases in which it found it more equitable to
determine just compensation based on the value of said property at the time of payment, foremost of which
is Land Bank of the Philippines v. Natividad,38 cited by the Court of Appeals in its Decision assailed
herein.

In Natividad, the parcels of agricultural land involved were acquired from their owners for purposes of
agrarian reform on 21 October 1972, the time of the effectivity of Presidential Decree No. 27. Still, as late
as the year 1993, the landowners were yet to be paid the value of their lands. Thus, the landowners filed a
petition before the trial court for the determination of just compensation. The trial court therein ruled in
favor of the landowners, declaring that Presidential Decree No. 27 and Executive Order No. 228 were mere
guidelines in the determination of just compensation. Said court likewise fixed the just compensation on the
basis of the evidence presented on the valuation of the parcels of land in 1993, not the value thereof as of
the time of acquisition in 1972. Therein petitioner Land Bank of the Philippines sought a review of the
Decision of the trial court before this Court. This Court found that the petition for review of therein
petitioner Lank Bank of the Philippines was unmeritorious, to wit:

Land Bank’s contention that the property was acquired for purposes of agrarian reform on October 21,
1972, the time of the effectivity of PD 27, ergo just compensation should be based on the value of the
property as of that time and not at the time of possession in 1993, is likewise erroneous. In Office of the
President, Malacañang, Manila v. Court of Appeals, we ruled that the seizure of the landholding did not
take place on the date of effectivity of PD 27 but would take effect on the payment of just compensation.

Under the factual circumstances of this case, the agrarian reform process is still incomplete as the just
compensation to be paid private respondents has yet to be settled. Considering the passage of Republic Act
No. 6657 (RA 6657) before the completion of this process, the just compensation should be determined and
the process concluded under the said law. Indeed, RA 6657 is the applicable law, with PD 27 and EO 228
having only suppletory effect, conformably with our ruling in Paris v. Alfeche. [416 Phil. 473.]

Section 17 of RA 6657 which is particularly relevant, providing as it does the guideposts for the
determination of just compensation, reads as follows:

Sec. 17. Determination of Just Compensation. - In determining just compensation, the cost of acquisition of
the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the
owner, the tax declarations, and the assessment made by government assessors shall be considered. The
social and economic benefits contributed by the farmers and the farm-workers and by the Government to
the property as well as the non-payment of taxes or loans secured from any government financing
institution on the said land shall be considered as additional factors to determine its valuation.

It would certainly be inequitable to determine just compensation based on the guideline provided by PD 27
and EO 228 considering the DAR’s failure to determine the just compensation for a considerable length of
time. That just compensation should be determined in accordance with RA 6657, and not PD 27 or EO 228,
is especially imperative considering that just compensation should be the full and fair equivalent of the
property taken from its owner by the expropriator, the equivalent being real, substantial, full and ample.39
(Emphases ours.)

In Meneses v. Secretary of Agrarian Reform,40 the Court applied its ruling in Natividad. The landowners in
Meneses were likewise deprived of their property in 1972, which land has since been distributed and titles
already distributed to farmer-beneficiaries in accordance with the provisions of Presidential Decree No. 27
and Executive Order No. 228. However, up to the year 1993, no payment or rentals were made for the land.
Thus, the landowners filed a complaint for determination and payment of just compensation. The trial court
ruled that since the land was taken from the owners on 21 October 1972 under the Operation Land Transfer
pursuant to Presidential Decree No. 27, just compensation must be based on the value of the property at the
time of taking. The appeal by the landowners to the Court of Appeals was dismissed. The landowners, thus,
elevated the case to this Court. On the issue of the payment of just compensation, the Court adjudged:

The Court also finds that the CA erred in sustaining the RTC ruling that just compensation in this case
should be based on the value of the property at the time of taking, October 21, 1972, which is the effectivity
date of P.D. No. 27.

Respondent correctly cited the case of Gabatin v. Land Bank of the Philippines [444 SCRA 176], where the
Court ruled that "in computing the just compensation for expropriation proceedings, it is the value of the
land at the time of the taking (or October 21, 1972, the effectivity date of P.D. No. 27), not at the time of
the rendition of judgment, which should be taken into consideration." x x x.

It should also be pointed out, however, that in the more recent case of Land Bank of the Philippines vs.
Natividad, [458 SCRA 441] the Court categorically ruled: "the seizure of the landholding did not take place
on the date of effectivity of P.D. No. 27 but would take effect on the payment of just compensation." x x x.

Under the circumstances of this case, the Court deems it more equitable to apply the ruling in the Natividad
case. x x x.

xxxx

As previously noted, the property was expropriated under the Operation Land Transfer scheme of P.D. No.
27 way back in 1972. More than 30 years have passed and petitioners are yet to benefit from it, while the
farmer-beneficiaries have already been harvesting its produce for the longest time. Events have rendered
the applicability of P.D. No. 27 inequitable. Thus, the provisions of R.A. No. 6657 should apply in this
case.41

In the even more recent case, Lubrica v. Land Bank of the Philippines,42 the Court also adhered to
Natividad, viz:

The Natividad case reiterated the Court's ruling in Office of the President v. Court of Appeals [413 Phil.
711] that the expropriation of the landholding did not take place on the effectivity of P.D. No. 27 on
October 21, 1972 but seizure would take effect on the payment of just compensation judicially determined.

Likewise, in the recent case of Heirs of Francisco R. Tantoco, Sr. v. Court of Appeals [489 SCRA 590], we
held that expropriation of landholdings covered by R.A. No. 6657 take place, not on the effectivity of the
Act on June 15, 1988, but on the payment of just compensation.

In the instant case, petitioners were deprived of their properties in 1972 but have yet to receive the just
compensation therefor. The parcels of land were already subdivided and distributed to the farmer-
beneficiaries thereby immediately depriving petitioners of their use. Under the circumstances, it would be
highly inequitable on the part of the petitioners to compute the just compensation using the values at the
time of the taking in 1972, and not at the time of the payment, considering that the government and the
farmer-beneficiaries have already benefited from the land although ownership thereof have not yet been
transferred in their names. Petitioners were deprived of their properties without payment of just
compensation which, under the law, is a prerequisite before the property can be taken away from its
owners. The transfer of possession and ownership of the land to the government are conditioned upon the
receipt by the landowner of the corresponding payment or deposit by the DAR of the compensation with an
accessible bank. Until then, title remains with the landowner.

Our ruling in Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform
[175 SCRA 343] is instructive, thus:

It is true that P.D. No. 27 expressly ordered the emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a portion of land consisting of a family-sized farm except
that "no title to the land owned by him was to be actually issued to him unless and until he had become a
full-fledged member of a duly recognized farmer's cooperative." It was understood, however, that full
payment of the just compensation also had to be made first, conformably to the constitutional requirement.

When E.O. No. 228, categorically stated in its Section 1 that:

All qualified farmer-beneficiaries are now deemed full owners as of October 21, 1972 of the land they
acquired by virtue of Presidential Decree No. 27 (Emphasis supplied.)

it was obviously referring to lands already validly acquired under the said decree, after proof of full-fledged
membership in the farmers' cooperatives and full payment of just compensation. x x x.43

The instant case involves a closely similar factual milieu as that in Natividad and Meneses. The DAR
acquired the subject property in 1972 through its Operation Land Transfer Program, pursuant to
Presidential Decree No. 27. Since then, the subject property has already been distributed to the farmer-
beneficiaries who, since then, have exclusively possessed the same and harvested its produce. Eventually,
the Emancipation Patents were issued in the beneficiaries’ favor. Even after the lapse of 23 years – from
1972, when the DAR took the subject land property, until 1995, when respondent filed its Petition before
the SAC - the full payment of just compensation due respondent has yet to be made by petitioner. These
circumstances, the same as in Natividad and Meneses, make it more equitable for the SAC to determine the
just compensation due the respondent for the remainder of the subject property using values at the time of
its payment.
WHEREFORE, in light of the foregoing, the Petition for Review under Rule 45 of the Rules of Court is
hereby DENIED. The assailed Decision dated 12 December 2005 and the Resolution dated 20 April 2007
of the Court of Appeals in CA-G.R. CV No. 73774 are hereby AFFIRMED in toto. Costs against petitioner.

SO ORDERED.

G.R. No. 162272 April 7, 2009

SANTIAGO C. DIVINAGRACIA, Petitioner, vs. CONSOLIDATED BROADCASTING SYSTEM,
INC. and PEOPLE'S BROADCASTING SERVICE, INC., Respondents.

TINGA, J.:

Does the National Telecommunications Commission (NTC) have jurisdiction over complaints seeking the
cancellation of certificates of public convenience (CPCs) and other licenses it had issued to the holders of
duly-issued legislative franchises on the ground that the franchisees had violated the terms of their
franchises? The Court, in resolving that question, takes the opportunity to elaborate on the dynamic behind
the regulation of broadcast media in the Philippines, particularly the interrelationship between the twin
franchise and licensing requirements.

I.

Respondents Consolidated Broadcasting System, Inc. (CBS) and People’s Broadcasting Service, Inc. (PBS)
were incorporated in 1961 and 1965, respectively. Both are involved in the operation of radio broadcasting
services in the Philippines, they being the grantees of legislative franchises by virtue of two laws, Republic
Act (R.A.) No. 7477 and R.A. No. 7582. R.A. No. 7477, enacted on 5 May 1992, granted PBS a legislative
franchise to construct, install, maintain and operate radio and television stations within the Philippines for a
period of 25 years. R.A. No. 7582, enacted on 27 May 1992, extended CBS’s previous legislative
franchise1 to operate radio stations for another 25 years. The CBS and PBS radio networks are two of the
three networks that comprise the well-known "Bombo Radyo Philippines."2

Section 9 of R.A. No. 7477 and Section 3 of R.A. No. 7582 contain a common provision predicated on the
"constitutional mandate to democratize ownership of public utilities."3 The common provision states:

SEC. 9. Democratization of ownership.― In compliance with the constitutional mandate to democratize

ownership of public utilities, the herein grantee shall make public offering through the stock exchanges of
at least thirty percent (30%) of its common stocks within a period of three (3) years from the date of
effectivity of this Act: Provided, That no single person or entity shall be allowed to own more than five
percent (5%) of the stock offerings.4

It further appears that following the enactment of these franchise laws, the NTC issued four (4) Provisional
Authorities to PBS and six (6) Provisional Authorities to CBS, allowing them to install, operate and
maintain various AM and FM broadcast stations in various locations throughout the nation.5 These
Provisional Authorities were issued between 1993 to 1998, or after the enactment of R.A. No. 7477 and
R.A. No. 7582.

Petitioner Santiago C. Divinagracia6 filed two complaints both dated 1 March 1999 with the NTC,
respectively lodged against PBS7 and CBS.8 He alleged that he was "the actual and beneficial owner of
Twelve percent (12%) of the shares of stock" of PBS and CBS separately,9 and that despite the provisions
in R.A. No. 7477 and R.A. No. 7582 mandating the public offering of at least 30% of the common stocks of
PBS and CBS, both entities had failed to make such offering. Thus, Divinagracia commonly argued in his
complaints that the failure on the part of PBS and CBS "to comply with the mandate of their legislative
franchise is a misuse of the franchise conferred upon it by law and it continues to exercise its franchise in
contravention of the law to the detriment of the general public and of complainant who are unable to enjoy
the benefits being offered by a publicly listed company."10 He thus prayed for the cancellation of all the
Provisional Authorities or CPCs of PBS and CBS on account of the alleged violation of the conditions set
therein, as well as in its legislative franchises.11
On 1 August 2000, the NTC issued a consolidated decision dismissing both complaints.12 While the NTC
posited that it had full jurisdiction to revoke or cancel a Provisional Authority or CPC for violations or
infractions of the terms and conditions embodied therein,13 it held that the complaints actually constituted
collateral attacks on the legislative franchises of PBS and CBS since the sole issue for determination was
whether the franchisees had violated the mandate to democratize ownership in their respective legislative
franchises. The NTC ruled that it was not competent to render a ruling on that issue, the same being more
properly the subject of an action for quo warranto to be commenced by the Solicitor General in the name of
the Republic of the Philippines, pursuant to Rule 66 of the Rules of Court.14

After the NTC had denied Divinagracia’s motion for reconsideration,15 he filed a petition for review under
Rule 43 of the Rules of Court with the Court of Appeals.16 On 18 February 2004, the Court of Appeals
rendered a decision17 upholding the NTC. The appellate court agreed with the earlier conclusion that the
complaints were indeed a collateral attack on the legislative franchises of CBS and PBS and that a quo
warranto action was the proper mode to thresh out the issues raised in the complaints.

Hence this petition, which submits as the principal issue, whether the NTC, with its retinue of regulatory
powers, is powerless to cancel Provisional Authorities and Certificates of Public Convenience it issued to
legislative franchise-holders. That central issue devolves into several narrower arguments, some of which
hinge on the authority of the NTC to cancel the very Provisional Authorities and CPCs which it is
empowered to issue, as distinguished from the legislative franchise itself, the cancellation of which
Divinagracia points out was not the relief he had sought from the NTC. Questions are raised as to whether
the complaints did actually constitute a collateral attack on the legislative franchises.

Yet this case ultimately rests to a large degree on fundamentals. Divinagracia’s case rotates on the singular
thesis that the NTC has the power to cancel Provisional Authorities and CPCs, or in effect, the power to
cancel the licenses that allow broadcast stations to operate. The NTC, in its assailed Decision, expressly
admits that it has such power even as it refrained from exercising the same.18 The Court has yet to engage
in a deep inquiry into the question of whether the NTC has the power to cancel the operating licenses of
entities to whom Congress has issued franchises to operate broadcast stations, especially on account of an
alleged violation of the terms of their franchises. This is the opportune time to examine the issue.

II.

To fully understand the scope and dimensions of the regulatory realm of the NTC, it is essential to review
the legal background of the regulation process. As operative fact, any person or enterprise which wishes to
operate a broadcast radio or television station in the Philippines has to secure a legislative franchise in the
form of a law passed by Congress, and thereafter a license to operate from the NTC.

The franchise requirement traces its genesis to Act No. 3846, otherwise known as the Radio Control Act,
enacted in 1931.19 Section 1 thereof provided that "[n]o person, firm, company, association or corporation
shall construct, install, establish, or operate x x x a radio broadcasting station, without having first obtained
a franchise therefor from the National Assembly x x x"20 Section 2 of the law prohibited the construction
or installation of any station without a permit granted by the Secretary of Public Works and
Communication, and the operation of such station without a license issued by the same Department
Secretary.21 The law likewise empowered the Secretary of Public Works and Communication "to regulate
the establishment, use, and operation of all radio stations and of all forms of radio communications and
transmissions within the Philippine Islands and to issue such rules and regulations as may be necessary."22

Noticeably, our Radio Control Act was enacted a few years after the United States Congress had passed the
Radio Act of 1927. American broadcasters themselves had asked their Congress to step in and regulate the
radio industry, which was then in its infancy. The absence of government regulation in that market had led
to the emergence of hundreds of radio broadcasting stations, each using frequencies of their choice and
changing frequencies at will, leading to literal chaos on the airwaves. It was the Radio Act of 1927 which
introduced a licensing requirement for American broadcast stations, to be overseen eventually by the
Federal Communications Commission (FCC).23
This pre-regulation history of radio broadcast stations illustrates the continuing necessity of a government
role in overseeing the broadcast media industry, as opposed to other industries such as print media and the
Internet.24 Without regulation, the result would be a free-for-all market with rival broadcasters able with
impunity to sabotage the use by others of the airwaves.25 Moreover, the airwaves themselves the very
medium utilized by broadcast―are by their very nature not susceptible to appropriation, much less be the
object of any claim of private or exclusive ownership. No private individual or enterprise has the physical
means, acting alone to actualize exclusive ownership and use of a particular frequency. That end, desirable
as it is among broadcasters, can only be accomplished if the industry itself is subjected to a regime of
government regulation whereby broadcasters receive entitlement to exclusive use of their respective or
particular frequencies, with the State correspondingly able by force of law to confine all broadcasters to the
use of the frequencies assigned to them.

Still, the dominant jurisprudential rationale for state regulation of broadcast media is more sophisticated
than a mere recognition of a need for the orderly administration of the airwaves. After all, a united
broadcast industry can theoretically achieve that goal through determined self-regulation. The key basis for
regulation is rooted in empiricism – "that broadcast frequencies are a scarce resource whose use could be
regulated and rationalized only by the Government." This concept was first introduced in jurisprudence in
the U.S. case of Red Lion v. Federal Communications Commission.26

Red Lion enunciated the most comprehensive statement of the necessity of government oversight over
broadcast media. The U.S. Supreme Court observed that within years from the introduction of radio
broadcasting in the United States, "it became apparent that broadcast frequencies constituted a scarce
resource whose use could be regulated and rationalized only by the Government… without government
control, the medium would be of little use because of the cacophony of competing voices, none of which
could be clearly and predictably heard." The difficulties posed by spectrum scarcity was concretized by the
U.S. High Court in this manner:

Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have
led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown
apace. Portions of the spectrum must be reserved for vital uses unconnected with human communication,
such as radio-navigational aids used by aircraft and vessels. Conflicts have even emerged between such
vital functions as defense preparedness and experimentation in methods of averting midair collisions
through radio warning devices. "Land mobile services" such as police, ambulance, fire department, public
utility, and other communications systems have been occupying an increasingly crowded portion of the
frequency spectrum and there are, apart from licensed amateur radio operators' equipment, 5,000,000
transmitters operated on the "citizens' band" which is also increasingly congested. Among the various uses
for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there
are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio
and television uses than now exists.(citations omitted)27

After interrelating the premise of scarcity of resources with the First Amendment rights of broadcasters,
Red Lion concluded that government regulation of broadcast media was a necessity:

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate,
it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every
individual to speak, write, or publish. If 100 persons want broadcast [395 U.S. 367, 389] licenses but there
are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be
any effective communication by radio, only a few can be licensed and the rest must be barred from the
airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications,
prevented the Government from making radio communication possible by requiring licenses to broadcast
and by limiting the number of licenses so as not to overcrowd the spectrum.

This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny
licenses and to eliminate existing stations. No one has a First Amendment right to a license or to
monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a
denial of free speech."

By the same token, as far as the First Amendment is concerned those who are licensed stand no better than
those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional
right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee
to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present
those views and voices which are representative of his community and which would otherwise, by
necessity, be barred from the airwaves.28

xxxx

Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of
200,000,000, the Government could surely have decreed that each frequency should be shared among all or
some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week.
The ruling and regulations at issue here do not go quite so far. They assert that under specified
circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who
have a view different from that which has already been expressed on his station. The expression of a
political endorsement, or of a personal attack while dealing with a controversial public issue, simply
triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent
others from broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce
resource which the Government has denied others the right to use.

In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and
political editorial rules are indistinguishable from the equal-time provision of §315, a specific enactment of
Congress requiring stations to set aside reply time under specified circumstances and to which the fairness
doctrine and these constituent regulations are important complements. That provision, which has been part
of the law since 1927, Radio Act of 1927, §18, 44 Stat. 1170, has been held valid by this Court as an
obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and
thus insulating him from liability for defamation. The constitutionality of the statute under the First
Amendment was unquestioned.(citations omitted)29

As made clear in Red Lion, the scarcity of radio frequencies made it necessary for the government to step
in and allocate frequencies to competing broadcasters. In undertaking that function, the government is
impelled to adjudge which of the competing applicants are worthy of frequency allocation. It is through that
role that it becomes legally viable for the government to impose its own values and goals through a
regulatory regime that extends beyond the assignation of frequencies, notwithstanding the free expression
guarantees enjoyed by broadcasters. As the government is put in a position to determine who should be
worthy to be accorded the privilege to broadcast from a finite and limited spectrum, it may impose
regulations to see to it that broadcasters promote the public good deemed important by the State, and to
withdraw that privilege from those who fall short of the standards set in favor of other worthy applicants.

Such conditions are peculiar to broadcast media because of the scarcity of the airwaves. Indeed, any
attempt to impose such a regulatory regime on a medium that is not belabored under similar physical
conditions, such as print media, will be clearly antithetical to democratic values and the free expression
clause. This Court, which has adopted the "scarcity of resources" doctrine in cases such as Telecom. &
Broadcast Attys. of the Phils., Inc. v. COMELEC,30 emphasized the distinction citing Red Lion:

Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free air
time. They contend that newspapers and magazines are not similarly required as, in fact, in Philippine Press
Institute v. COMELEC we upheld their right to the payment of just compensation for the print space they
may provide under §90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same
treatment under the free speech guarantee of the Constitution as the print media. There are important
differences in the characteristics of the two media, however, which justify their differential treatment for
free speech purposes. Because of the physical limitations of the broadcast spectrum, the government must,
of necessity, allocate broadcast frequencies to those wishing to use them. There is no similar justification
for government allocation and regulation of the print media.

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print media. To
require the radio and television broadcast industry to provide free air time for the COMELEC Time is a fair
exchange for what the industry gets.31

Other rationales may have emerged as well validating state regulation of broadcast media,32 but the reality
of scarce airwaves remains the primary, indisputable and indispensable justification for the government
regulatory role. The integration of the scarcity doctrine into the jurisprudence on broadcast media illustrates
how the libertarian ideal of the free expression clause may be tempered and balanced by actualities in the
real world while preserving the core essence of the constitutional guarantee. Indeed, without government
regulation of the broadcast spectrum, the ability of broadcasters to clearly express their views would be
inhibited by the anarchy of competition. Since the airwaves themselves are not susceptible to physical
appropriation and private ownership, it is but indispensable that the government step in as the guardian of
the spectrum.

Reference to the scarcity doctrine is necessary to gain a full understanding of the paradigm that governs the
state regulation of broadcast media. That paradigm, as it exists in the United States, is contextually similar
to our own, except in one very crucial regard – the dual franchise/license requirements we impose.

III.

Recall that the Radio Control Act specifically required the obtention of a legislative franchise for the
operation of a radio station in the Philippines. When the Public Service Act was enacted in 1936, the Public
Service Commission (PSC) was vested with jurisdiction over "public services," including over "wire or
wireless broadcasting stations."33 However, among those specifically exempted from the regulatory reach
of the PSC were "radio companies, except with respect to the fixing of rates."34 Thus, following the Radio
Control Act, the administrative regulation of "radio companies" remained with the Secretary of Public
Works and Communications. It appears that despite the advent of commercial television in the 1950s, no
corresponding amendment to either the Radio Control Act or the Public Service Act was passed to reflect
that new technology then.

Shortly after the 1972 declaration of martial law, President Marcos issued Presidential Decree (P.D.) No. 1,
which allocated to the Board of Communications the authority to issue CPCs for the operation of radio and
television broadcasting systems and to grant permits for the use of radio frequencies for such broadcasting
systems. In 1974, President Marcos promulgated Presidential Decree No. 576-A, entitled "Regulating the
Ownership and Operation of Radio and Television Stations and for other Purposes." Section 6 of that law
reads:

Section 6. All franchises, grants, licenses, permits, certificates or other forms of authority to operate radio
or television broadcasting systems shall terminate on December 31, 1981. Thereafter, irrespective of any
franchise, grants, license, permit, certificate or other forms of authority to operate granted by any office,
agency or person, no radio or television station shall be authorized to operated without the authority of the
Board of Communications and the Secretary of Public Works and Communications or their successors who
have the right and authority to assign to qualified parties frequencies, channels or other means of
identifying broadcasting systems; Provided, however, that any conflict over, or disagreement with a
decision of the aforementioned authorities may be appealed finally to the Office of the President within
fifteen days from the date the decision is received by the party in interest.

A few years later, President Marcos promulgated Executive Order (E.O.) No. 546, establishing among
others the National Telecommunications Commission. Section 15 thereof enumerates the various functions
of the NTC.
Section 15. Functions of the Commission.― The Commission shall exercise the following functions:

a. Issue Certificate of Public Convenience for the operation of communications utilities and services, radio
communications systems, wire or wireless telephone or telegraph systems, radio and television
broadcasting system and other similar public utilities;

b. Establish, prescribe and regulate areas of operation of particular operators of public service
communications; and determine and prescribe charges or rates pertinent to the operation of such public
utility facilities and services except in cases where charges or rates are established by international bodies
or associations of which the Philippines is a participating member or by bodies recognized by the
Philippine Government as the proper arbiter of such charges or rates;

c. Grant permits for the use of radio frequencies for wireless telephone and telegraph systems and radio
communication systems including amateur radio stations and radio and television broadcasting systems;

d. Sub-allocate series of frequencies of bands allocated by the International Telecommunications Union to

the specific services;

e. Establish and prescribe rules, regulations, standards, specifications in all cases related to the issued
Certificate of Public Convenience and administer and enforce the same;

f. Coordinate and cooperate with government agencies and other entities concerned with any aspect
involving communications with a view to continuously improve the communications service in the country;

g. Promulgate such rules and regulations, as public safety and interest may require, to encourage a larger
and more effective use of communications, radio and television broadcasting facilities, and to maintain
effective competition among private entities in these activities whenever the Commission finds it
reasonably feasible;

h. Supervise and inspect the operation of radio stations and telecommunications facilities;

i. Undertake the examination and licensing of radio operators;

j. Undertake, whenever necessary, the registration of radio transmitters and transceivers; and

k. Perform such other functions as may be prescribed by law.

These enactments were considered when in 2003 the Court definitively resolved that the operation of a
radio or television station does require a congressional franchise. In Associated Communications &
Wireless Services v. NTC,35 the Court took note of the confusion then within the broadcast industry as to
whether the franchise requirement first ordained in the 1931 Radio Control Act remained extant given the
enactment of P.D. No. 576-A in 1974 and E.O. No. 546 in 1979. Notably, neither law had specifically
required legislative franchises for the operation of broadcast stations. Nonetheless, the Court noted that
Section 1 of P.D. No. 576-A had expressly referred to the franchise requirement in stating that "[n]o radio
station or television channel may obtain a franchise unless it has sufficient capital on the basis of equity for
its operation for at least one year… ."36 Section 6 of that law made a similar reference to the franchise
requirement.37 From those references, the Court concluded that the franchise requirement under the Radio
Control Act was not repealed by P.D. No. 576-A.38

Turning to E.O. No. 546, the Court arrived at a similar conclusion, despite a Department of Justice Opinion
stating that the 1979 enactment had dispensed with the congressional franchise requirement. The Court
clarified that the 1989 ruling in Albano v. Reyes, to the effect that "franchises issued by Congress are not
required before each and every public utility may operate" did not dispense with the franchise requirement
insofar as broadcast stations are concerned.
Our ruling in Albano that a congressional franchise is not required before "each and every public utility
may operate" should be viewed in its proper light. Where there is a law such as P.D. No. 576-A which
requires a franchise for the operation of radio and television stations, that law must be followed until
subsequently repealed. As we have earlier shown, however, there is nothing in the subsequent E.O. No. 546
which evinces an intent to dispense with the franchise requirement. In contradistinction with the case at bar,
the law applicable in Albano, i.e., E.O. No. 30, did not require a franchise for the Philippine Ports Authority
to take over, manage and operate the Manila International Port Complex and undertake the providing of
cargo handling and port related services thereat. Similarly, in Philippine Airlines, Inc. v. Civil Aeronautics
Board, et al., we ruled that a legislative franchise is not necessary for the operation of domestic air transport
because "there is nothing in the law nor in the Constitution which indicates that a legislative franchise is an
indispensable requirement for an entity to operate as a domestic air transport operator." Thus, while it is
correct to say that specified agencies in the Executive Branch have the power to issue authorization for
certain classes of public utilities, this does not mean that the authorization or CPC issued by the NTC
dispenses with the requirement of a franchise as this is clearly required under P.D. No. 576-A.39

The Court further observed that Congress itself had accepted it as a given that a legislative franchise is still
required to operate a broadcasting station in the Philippines.

That the legislative intent is to continue requiring a franchise for the operation of radio and television
broadcasting stations is clear from the franchises granted by Congress after the effectivity of E.O. No. 546
in 1979 for the operation of radio and television stations. Among these are: (1) R.A. No. 9131 dated April
24, 2001, entitled "An Act Granting the Iddes Broadcast Group, Inc., a Franchise to Construct, Install,
Establish, Operate and Maintain Radio and Television Broadcasting Stations in the Philippines"; (2) R.A.
No. 9148 dated July 31, 2001, entitled "An Act Granting the Hypersonic Broadcasting Center, Inc., a
Franchise to Construct, Install, Establish, Operate and Maintain Radio Broadcasting Stations in the
Philippines;" and (3) R.A. No. 7678 dated February 17, 1994, entitled "An Act Granting the Digital
Telecommunication Philippines, Incorporated, a Franchise to Install, Operate and Maintain
Telecommunications Systems Throughout the Philippines." All three franchises require the grantees to
secure a CPCN/license/permit to construct and operate their stations/systems. Likewise, the Tax Reform
Act of 1997 provides in Section 119 for tax on franchise of radio and/or television broadcasting companies
x x x 40

Associated Communications makes clear that presently broadcast stations are still required to obtain a
legislative franchise, as they have been so since the passage of the Radio Control Act in 1931. By virtue of
this requirement, the broadcast industry falls within the ambit of Section 11, Article XII of the 1987
Constitution, the one constitutional provision

concerned with the grant of franchises in the Philippines.41 The requirement of a legislative franchise
likewise differentiates the Philippine broadcast industry from that in America, where there is no need to
secure a franchise from the U.S. Congress.

It is thus clear that the operators of broadcast stations in the Philippines must secure a legislative franchise,
a requirement imposed by the Radio Control Act of 1931 and accommodated under the 1987 Constitution.
At the same time, the Court in Associated Communications referred to another form of "permission"
required of broadcast stations, that is the CPC issued by the NTC. What is the source of such requirement?

The Radio Control Act had also obliged radio broadcast stations to secure a permit from the Secretary of
Commerce and Industry42 prior to the construction or installation of any station.43 Said Department
Secretary was also empowered to regulate "the establishment, use and operation of all radio stations and of
all forms of radio communications and

transmission within the Philippines."44 Among the specific powers granted to the Secretary over radio
stations are the approval or disapproval of any application for the construction, installation, establishment
or operation of a radio station45 and the approval or disapproval of any application for renewal of station or
operation license.46
As earlier noted, radio broadcasting companies were exempted from the jurisdiction of the defunct Public
Service Commission except with respect to their rates; thus, they did not fall within the same regulatory
regime as other public services, the regime which was characterized by the need for CPC or CPCN.
However, following the Radio Control Act, it became clear that radio broadcast companies need to obtain a
similar license from the government in order to operate, at that time from the Department of Public Works
and Communications.

Then, as earlier noted, in 1972, President Marcos through P.D. No. 1, transferred to the Board of
Communications the function of issuing CPCs for the operation of radio and television broadcasting
systems, as well as the granting of permits for the use of radio frequencies for such broadcasting systems.
With the creation of the NTC, through E.O. No. 546 in 1979, that agency was vested with the power to
"[i]ssue certificate[s] of public convenience for the operation of… radio and television broadcasting
system[s]."47 That power remains extant and undisputed to date.

This much thus is clear. Broadcast and television stations are required to obtain a legislative franchise, a
requirement imposed by the Radio Control Act and affirmed by our ruling in Associated Broadcasting.
After securing their legislative franchises, stations are required to obtain CPCs from the NTC before they
can operate their radio or television broadcasting systems. Such requirement while traceable also to the
Radio Control Act, currently finds its basis in E.O. No. 546, the law establishing the NTC.

From these same legal premises, the next and most critical question is whether the NTC has the power to
cancel the CPCs it has issued to legislative franchisees.

IV.

The complexities of our dual franchise/license regime for broadcast media should be understood within the
context of separation of powers. The right of a particular entity to broadcast over the airwaves is established
by law —i.e., the legislative franchise — and determined by Congress, the branch of government tasked
with the creation of rights and obligations. As with all other laws passed by Congress, the function of the
executive branch of government, to which the NTC belongs, is the implementation of the law. In broad
theory, the legal obligation of the NTC once Congress has established a legislative franchise for a broadcast
media station is to facilitate the operation by the franchisee of its broadcast stations. However, since the
public administration of the airwaves is a requisite for the operation of a franchise and is moreover a highly
technical function, Congress has delegated to the NTC the task of administration over the broadcast
spectrum, including the determination of available bandwidths and the allocation of such available
bandwidths among the various legislative franchisees. The licensing power of the NTC thus arises from the
necessary delegation by Congress of legislative power geared towards the orderly exercise by franchisees
of the rights granted them by Congress.

Congress may very well in its wisdom impose additional obligations on the various franchisees and
accordingly delegate to the NTC the power to ensure that the broadcast stations comply with their
obligations under the law. Because broadcast media enjoys a lesser degree of free expression protection as
compared to their counterparts in print, these legislative restrictions are generally permissible under the
Constitution. Yet no enactment of Congress may contravene the Constitution and its Bill of Rights; hence,
whatever restrictions are imposed by Congress on broadcast media franchisees remain susceptible to
judicial review and analysis under the jurisprudential framework for scrutiny of free expression cases
involving the broadcast media.

The restrictions enacted by Congress on broadcast media franchisees have to pass the mettle of
constitutionality. On the other hand, the restrictions imposed by an administrative agency such as the NTC
on broadcast media franchisees will have to pass not only the test of constitutionality, but also the test of
authority and legitimacy, i.e., whether such restrictions have been imposed in the exercise of duly delegated
legislative powers from Congress. If the restriction or sanction imposed by the administrative agency
cannot trace its origin from legislative delegation, whether it is by virtue of a specific grant or from valid
delegation of rule-making power to the administrative agency, then the action of such administrative
agency cannot be sustained. The life and authority of an administrative agency emanates solely from an Act
of Congress, and its faculties confined within the parameters set by the legislative branch of government.

We earlier replicated the various functions of the NTC, as established by E.O. No. 546. One can readily
notice that even as the NTC is vested with the power to issue CPCs to broadcast stations, it is not expressly
vested with the power to cancel such CPCs, or otherwise empowered to prevent broadcast stations with
duly issued franchises and CPCs from operating radio or television stations.1avvphi1

In contrast, when the Radio Control Act of 1931 maintained a similar requirement for radio stations to
obtain a license from a government official (the Secretary of Commerce and Industry), it similarly
empowered the government, through the Secretary of Public Works and Communications, to suspend or
revoke such license, as indicated in Section 3(m):

Section 3. The Secretary of Public Works and Communications is hereby empowered, to regulate the
construction or manufacture, possession, control, sale and transfer of radio transmitters or transceivers
(combination transmitter-receiver) and the establishment, use, the operation of all radio stations and of all
form of radio communications and transmissions within the Philippines. In addition to the above he shall
have the following specific powers and duties:

(m) He may, at his direction bring criminal action against violators of the radio laws or the regulations and
confiscate the radio apparatus in case of illegal operation; or simply suspend or revoke the offender’s
station or operator licenses or refuse to renew such licenses; or just reprimand and warn the offenders;48

Section 3(m) begets the question – did the NTC retain the power granted in 1931 to the Secretary of Public
Works and Communications to "x x x suspend or revoke the offender’s station or operator licenses or refuse
to renew such licenses"? We earlier adverted to the statutory history. The enactment of the Public Service
Act in 1936 did not deprive the Secretary of regulatory jurisdiction over radio stations, which included the
power to impose fines. In fact, the Public Service Commission was precluded from exercising such
jurisdiction, except with respect to the fixing of rates.

Then, in 1972, the regulatory authority over broadcast media was transferred to the Board of
Communications by virtue of P. D. No. 1, which adopted, approved, and made as part of the law of the land
the Integrated Reorganization Plan which was prepared by the Commission on Reorganization.49 Among
the cabinet departments affected by the plan was the Department of Public Works and Communications,
which was now renamed the Department of Public Works, Transportation and Communication.50 New
regulatory boards under the administrative supervision of the Department were created, including the Board
of Communications.51

The functions of the Board of Communications were enumerated in Part X, Chapter I, Article III, Sec. 5 of
the Integrated Reorganization Plan.52 What is noticeably missing from these enumerated functions of the
Board of Communications is the power to revoke or cancel CPCs, even as the Board was vested the power
to issue the same. That same pattern held true in 1976, when the Board of Communications was abolished
by E.O. No. 546.53 Said executive order, promulgated by then President Marcos in the exercise of his
legislative powers, created the NTC but likewise withheld from it the authority to cancel licenses and
CPCs, even as it was empowered to issue CPCs. Given the very specific functions allocated by law to the
NTC, it would be very difficult to recognize any intent to allocate to the Commission such regulatory
functions previously granted to the Secretary of Public Works and Communications, but not included in the
exhaustive list of functions enumerated in Section 15.

Certainly, petitioner fails to point to any provision of E.O. No. 546 authorizing the NTC to cancel licenses.
Neither does he cite any provision under P.D. No. 1 or the Radio Control Act, even if Section 3(m) of the
latter law provides at least, the starting point of a fair argument. Instead, petitioner relies on the power
granted to the Public Service Commission to revoke CPCs or CPCNs under Section 16(m) of the Public
Service Act.54 That argument has been irrefragably refuted by Section 14 of the Public Service Act, and by
jurisprudence, most especially RCPI v. NTC.55 As earlier noted, at no time did radio companies fall under
the jurisdiction of the Public Service Commission as they were expressly excluded from its mandate under
Section 14. In addition, the Court ruled in RCPI that since radio companies, including broadcast stations
and telegraphic agencies, were never under the jurisdiction of the Public Service Commission except as to
rate-fixing, that Commission’s authority to impose fines did not carry over to the NTC even while the other
regulatory agencies that emanated from the Commission did retain the previous authority their predecessor
had exercised.56 No provision in the Public Service Act thus can be relied upon by the petitioner to claim
that the NTC has the authority to cancel CPCs or licenses.

It is still evident that E.O. No. 546 provides no explicit basis to assert that the NTC has the power to cancel
the licenses or CPCs it has duly issued, even as the government office previously tasked with the regulation
of radio stations, the Secretary of Public Works and Communications, previously possessed such power by
express mandate of law. In order to sustain petitioner’s premise, the Court will be unable to rely on an
unequivocally current and extant provision of law that justifies the NTC’s power to cancel CPCs. Petitioner
suggests that since the NTC has the power to issue CPCs, it necessarily has the power to revoke the same.
One might also argue that through the general rule-making power of the NTC, we can discern a right of the
NTC to cancel CPCs.

We must be mindful that the issue for resolution is not a run-of-the-mill matter which would be settled with
ease with the application of the principles of statutory construction. It is at this juncture that the
constitutional implications of this case must ascend to preeminence.

A.

It is beyond question that respondents, as with all other radio and television broadcast stations, find shelter
in the Bill of Rights, particularly Section 3, Article III of the Constitution. At the same time, as we have
labored earlier to point out, broadcast media stands, by reason of the conditions of scarcity, within a
different tier of protection from print media, which unlike broadcast, does not have any regulatory
interaction with the government during its operation.

Still, the fact that state regulation of broadcast media is constitutionally justified does not mean that its
practitioners are precluded from invoking Section 3, Article III of the Constitution in their behalf. Far from
it. Our democratic way of life is actualized by the existence of a free press, whether print media or
broadcast media. As with print media, free expression through broadcast media is protected from prior
restraint or subsequent punishment. The franchise and licensing requirements are mainly impositions of the
laws of physics which would stand to periodic reassessment as technology advances. The science of today
renders state regulation as a necessity, yet this should not encumber the courts from accommodating greater
freedoms to broadcast media when doing so would not interfere with the existing legitimate state interests
in regulating the industry.

In FCC v. League of Women Voters of California,57 the U.S. Supreme Court reviewed a law prohibiting
noncommercial broadcast stations that received funding from a public corporation from "engaging in
editorializing." The U.S. Supreme Court acknowledged the differentiated First Amendment standard of
review that applied to broadcast media. Still, it struck down the restriction, holding that "[the] regulation
impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics
that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local
government."58 We are similarly able to maintain fidelity to the fundamental rights of broadcasters even
while upholding the rationale behind the regulatory regime governing them.

Should petitioner’s position that the NTC has the power to cancel CPCs or licenses it has issued to
broadcast stations although they are in the first place empowered by their respective franchise to exercise
their rights to free expression and as members of a free press, be adopted broadcast media would be
encumbered by another layer of state restrictions. As things stand, they are already required to secure a
franchise from Congress and a CPC from the NTC in order to operate. Upon operation, they are obliged to
comply with the various regulatory issuances of the NTC, which has the power to impose fees and fines
and other mandates it may deem fit to prescribe in the exercise of its rule-making power.

The fact that broadcast media already labors under this concededly valid regulatory framework necessarily
creates inhibitions on its practitioners as they operate on a daily basis. Newspapers are able to print out
their daily editions without fear that a government agency such as the NTC will be able to suspend their
publication or fine them based on their content. Broadcast stations do already operate with that possibility
in mind, and that circumstance ineluctably restrains its content, notwithstanding the constitutional right to
free expression. However, the cancellation of a CPC or license to operate of a broadcast station, if we
recognize that possibility, is essentially a death sentence, the most drastic means to inhibit a broadcast
media practitioner from exercising the constitutional right to free speech, expression and of the press.

This judicial philosophy aligns well with the preferred mode of scrutiny in the analysis of cases with
dimensions of the right to free expression. When confronted with laws dealing with freedom of the mind or
restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as
other fundamental rights as expansion from its earlier applications to equal protection, the Court has
deemed it appropriate to apply "strict scrutiny" when assessing the laws involved or the legal arguments
pursued that would diminish the efficacy of such constitutional right. The assumed authority of the NTC to
cancel CPCs or licenses, if sustained, will create a permanent atmosphere of a less free right to express on
the part of broadcast media. So that argument could be sustained, it will have to withstand the strict scrutiny
from this Court.

Strict scrutiny entails that the presumed law or policy must be justified by a compelling state or government
interest, that such law or policy must be narrowly tailored to achieve that goal or interest, and that the law
or policy must be the least restrictive means for achieving that interest. It is through that lens that we
examine petitioner’s premise that the NTC has the authority to cancel licenses of broadcast franchisees.

B.

In analyzing the compelling government interest that may justify the investiture of authority on the NTC
advocated by petitioner, we cannot ignore the interest of the State as expressed in the respective legislative
franchises of the petitioner, R.A. No. 7477 and R. A. Act No. 7582. Since legislative franchises are
extended through statutes, they should receive recognition as the ultimate expression of State policy. What
the legislative franchises of respondents express is that the Congress, after due debate and deliberation,
declares it as State policy that respondents should have the right to operate broadcast stations. The
President of the Philippines, by affixing his signature to the law, concurs in such State policy.

Allowing the NTC to countermand State policy by revoking respondent’s vested legal right to operate
broadcast stations unduly gives to a mere administrative agency veto power over the implementation of the
law and the enforcement of especially vested legal rights. That concern would not arise if Congress had
similarly empowered the NTC with the power to revoke a franchisee’s right to operate broadcast stations.
But as earlier stated, there is no such expression in the law, and by presuming such right the Court will be
acting contrary to the stated State interest as expressed in respondents’ legislative franchises.

If we examine the particular franchises of respondents, it is readily apparent that Congress has especially
invested the NTC with certain powers with respect to their broadcast operations. Both R.A. No. 747759 and
R.A. No. 758260 require the grantee "to secure from the [NTC] the appropriate permits and licenses for its
stations," barring the private respondents from "using any frequency in the radio spectrum without having
been authorized by the [NTC]." At the same time, both laws provided that "[the NTC], however, shall not
unreasonably withhold or delay the grant of any such authority."

An important proviso is stipulated in the legislative franchises, particularly under Section 5 of R.A. No.
7477 and Section 3 of R.A. No. 7582, in relation to Section 11 of R.A. No. 3902.

Section 5. Right of Government. ― A special right is hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, temporarily suspend the operation of any
stations in the interest of public safety, security and public welfare, or authorize the temporary use and
operation thereof by any agency of the Government, upon due compensation to the grantee, for the use of
said stations during the period when they shall be so operated.
The provision authorizes the President of the Philippines to exercise considerable infringements on the
right of the franchisees to operate their enterprises and the right to free expression. Such authority finds
corollary constitutional justification as well under Section 17, Article XII, which allows the State "in times
of national emergency, when the public interest so requires x x x during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest." We do not doubt that the President or the State can
exercise such authority through the NTC, which remains an agency within the executive branch of
government, but such can be exercised only under limited and rather drastic circumstances. They still do
not vest in the NTC the broad authority to cancel licenses and permits.

These provisions granting special rights to the President in times of emergency are incorporated in our
understanding of the legislated state policy with respect to the operation by private respondents of their
legislative franchises. There are restrictions to the operation of such franchises, and when these restrictions
are indeed exercised there still may be cause for the courts to review whether said limitations are justified
despite Section 3, Article I of the Constitution. At the same time, the state policy as embodied in these
franchises is to restrict the government’s ability to impair the freedom to broadcast of the stations only upon
the occurrence of national emergencies or events that compromise the national security.

It should be further noted that even the aforequoted provision does not authorize the President or the
government to cancel the licenses of the respondents. The temporary nature of the takeover or closure of
the station is emphasized in the provision. That fact further disengages the provision from any sense that
such delegated authority can be the source of a broad ruling affirming the right of the NTC to cancel the
licenses of franchisees.

With the legislated state policy strongly favoring the unimpeded operation of the franchisee’s stations, it
becomes even more difficult to discern what compelling State interest may be fulfilled in ceding to the
NTC the general power to cancel the franchisee’s CPC’s or licenses absent explicit statutory authorization.
This absence of a compelling state interest strongly disfavors petitioner’s cause.

C.

Now, we shall tackle jointly whether a law or policy allowing the NTC to cancel CPCs or licenses is to be
narrowly tailored to achieve that requisite compelling State goal or interest, and whether such a law or
policy is the least restrictive means for achieving that interest. We addressed earlier the difficulty of
envisioning the compelling State interest in granting the NTC such authority. But let us assume for
argument’s sake, that relieving the injury complained off by petitioner – the failure of private respondents
to open up ownership through the initial public offering mandated by law – is a compelling enough State
interest to allow the NTC to extend consequences by canceling the licenses or CPCs of the erring
franchisee.

There is in fact a more appropriate, more narrowly-tailored and least restrictive remedy that is afforded by
the law. Such remedy is that adverted to by the NTC and the Court of Appeals – the resort to quo warranto
proceedings under Rule 66 of the Rules of Court.

Under Section 1 of Rule 66, "an action for the usurpation of a public office, position or franchise may be
brought in the name of the Republic of the Philippines against a person who usurps, intrudes into, or
unlawfully holds or exercises public office, position or franchise."61 Even while the action is maintained in
the name of the Republic62 , the Solicitor General or a public prosecutor is obliged to commence such
action upon complaint, and upon good reason to believe that any case specified under Section 1 of Rule 66
can be established by proof.63

The special civil action of quo warranto is a prerogative writ by which the Government can call upon any
person to show by what warrant he holds a public office or exercises a public franchise.64 It is settled that
"[t]he determination of the right to the exercise of a franchise, or whether the right to enjoy such privilege
has been forfeited by non-user, is more properly the subject of the prerogative writ of quo warranto, the
right to assert which, as a rule, belongs to the State ‘upon complaint or otherwise,’ the reason being that the
abuse of a franchise is a public wrong and not a private injury."65 A forfeiture of a franchise will have to be
declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law
and its unlawful exercise is primarily a concern of Government.66 Quo warranto is specifically available as
a remedy if it is thought that a government corporation has offended against its corporate charter or
misused its franchise.67

The Court of Appeals correctly noted that in PLDT v. NTC,68 the Court had cited quo warranto as the
appropriate recourse with respect to an allegation by petitioner therein that a rival telecommunications
competitor had failed to construct its radio system within the ten (10) years from approval of its franchise,
as mandated by its legislative franchise.69 It is beyond dispute that quo warranto exists as an available and
appropriate remedy against the wrong imputed on private respondents.

Petitioners argue that since their prayer involves the cancellation of the provisional authority and CPCs, and
not the legislative franchise, then quo warranto fails as a remedy. The argument is artificial. The authority
of the franchisee to engage in broadcast operations is derived in the legislative mandate. To cancel the
provisional authority or the CPC is, in effect, to cancel the franchise or otherwise prevent its exercise. By
law, the NTC is incapacitated to frustrate such mandate by unduly withholding or canceling the provisional
authority or the CPC for reasons other than the orderly administration of the frequencies in the radio
spectrum.

What should occur instead is the converse. If the courts conclude that private respondents have violated the
terms of their franchise and thus issue the writs of quo warranto against them, then the NTC is obliged to
cancel any existing licenses and CPCs since these permits draw strength from the possession of a valid
franchise. If the point has not already been made clear, then licenses issued by the NTC such as CPCs and
provisional authorities are junior to the legislative franchise enacted by Congress. The licensing authority
of the NTC is not on equal footing with the franchising authority of the State through Congress. The
issuance of licenses by the NTC implements the legislative franchises established by Congress, in the same
manner that the executive branch implements the laws of Congress rather than creates its own laws. And
similar to the inability of the executive branch to prevent the implementation of laws by Congress, the NTC
cannot, without clear and proper delegation by Congress, prevent the exercise of a legislative franchise by
withholding or canceling the licenses of the franchisee.

And the role of the courts, through quo warranto proceedings, neatly complements the traditional
separation of powers that come to bear in our analysis. The courts are entrusted with the adjudication of the
legal status of persons, the final arbiter of their rights and obligations under law. The question of whether a
franchisee is in breach of the franchise specially enacted for it by Congress is one inherently suited to a
court of law, and not for an administrative agency, much less one to which no such function has been
delegated by Congress. In the same way that availability of judicial review over laws does not preclude
Congress from undertaking its own remedial measures by appropriately amending laws, the viability of quo
warranto in the instant cases does not preclude Congress from enforcing its own prerogative by abrogating
the legislative franchises of respondents should it be distressed enough by the franchisees’ violation of the
franchises extended to them.

Evidently, the suggested theory of petitioner to address his plaints simply overpowers the delicate balance
of separation of powers, and unduly grants superlative prerogatives to the NTC to frustrate the exercise of
the constitutional freedom speech, expression, and of the press. A more narrowly-tailored relief that is
responsive to the cause of petitioner not only exists, but is in fact tailor-fitted to the constitutional
framework of our government and the adjudication of legal and constitutional rights. Given the current
status of the law, there is utterly no reason for this Court to subscribe to the theory that the NTC has the
presumed authority to cancel licenses and CPCs issued to due holders of legislative franchise to engage in
broadcast operations.

V.

An entire subset of questions may arise following this decision, involving issues or situations not presently
before us. We wish to make clear that the only aspect of the regulatory jurisdiction of the NTC that we are
ruling upon is its presumed power to cancel provisional authorities, CPCs or CPCNs and other such
licenses required of franchisees before they can engage in broadcast operations. Moreover, our conclusion
that the NTC has no such power is borne not simply from the statutory language of E.O. No. 546 or the
respective stipulations in private respondents’ franchises, but moreso, from the application of the strict
scrutiny standard which, despite its weight towards free speech, still involves the analysis of the competing
interests of the regulator and the regulated.

In resolving the present questions, it was of marked impact to the Court that the presumed power to cancel
would lead to utterly fatal consequences to the constitutional right to expression, as well as the legislated
right of these franchisees to broadcast. Other regulatory measures of less drastic impact will have to be
assessed on their own terms in the proper cases, and our decision today should not be accepted or cited as a
blanket shearing of the NTC’s regulatory jurisdiction. In addition, considering our own present recognition
of legislative authority to regulate broadcast media on terms more cumbersome than print media, it should
not be discounted that Congress may enact amendments to the organic law of the NTC that would alter the
legal milieu from which we adjudicated today.1avvphi1.zw+

Still, the Court sees all benefit and no detriment in striking this blow in favor of free expression and of the
press. While the ability of the State to broadly regulate broadcast media is ultimately dictated by physics,
regulation with a light touch evokes a democracy mature enough to withstand competing viewpoints and
tastes. Perhaps unwittingly, the position advocated by petitioner curdles a most vital sector of the press –
broadcast media – within the heavy hand of the State. The argument is not warranted by law, and it betrays
the constitutional expectations on this Court to assert lines not drawn and connect the dots around throats
that are free to speak.

WHEREFORE, the instant petition is DENIED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 177741 August 27, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. WILLIE RIVERA, Appellant.

CARPIO MORALES, J.:

By Decision of August 14, 2006,1 the Court of Appeals affirmed the conviction of Willie Rivera (appellant)
by the Regional Trial Court of Pasig City, Branch 154 for violation of Section 5, Article II of Republic Act
No. 9165 (R.A. 9165), the "Comprehensive Dangerous Drugs Act of 2002."

The Information against appellant reads:

On or about March 13, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused
(appellant), not being authorized by law, did then and there, willfully, unlawfully and feloniously sell,
deliver and give away to PO3 Amilassan M. Salisa, a police poseur-buyer, two (2) heat-sealed transparent
sachets each containing four centigrams (0.04 gram) of white crystalline substance, which were found
positive to the test of methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.

CONTRARY TO LAW.2

From the documentary and testimonial evidence for the prosecution, particularly the testimony of its
principal witness PO3 Amilassan Salisa (PO3 Salisa), the following version is culled:

On March 13, 2003, upon the request of the Pasig City Mayor’s Special Action Team which had received
information from a civilian agent that a certain "Kirat" was engaged in open selling of prohibited drugs in
Villa Reyes St., Barangay Bambang, Pasig City, P/Insp. Rodrigo E. Villaruel of the Pasig Philippine
National Police formed a team to conduct a buy-bust operation in the area. The team which was composed
of SPO4 Manuel Buenconsejo as leader, PO2 Arturo San Andres, PO1 Roland Panis, PO1 Janet Sabo, and
PO3 Salisa as poseur buyer, was given control number NOC-1303-03-04 by the Philippine Drug
Enforcement Agency (PDEA).

P/Insp. Villaruel gave PO3 Salisa two one hundred peso (P100) bills on which the latter wrote his initials
"AMS" above the serial numbers ZK801664 and JT972090 printed on the top right portion of the bills. To
signal consummation of the sale, it was agreed that PO3 Salisa would remove his cap.

At 12:55 o’clock in the afternoon of March 13, 2003, the buy-bust team proceeded to the place where
"Kirat" was reportedly peddling prohibited drugs.

Upon arrival at the target area, the buy-bust team parked the van that carried them to the "other side of the
street." PO3 Salisa and the informant thereupon alighted from the van and, from a distance of about five (5)
meters, on seeing appellant who was wearing short pants and a cap, the informant pointed to and identified
him as "Kirat" to PO3 Salisa.1avvphi1

As the informant approached appellant, he introduced PO3 Salisa as a buyer of shabu worth P200. PO3
Salisa at once handed the marked bills to appellant who in turn handed him two heat-sealed plastic sachets
containing white crystalline substance. At that instant, PO3 Salisa removed his cap.

The members of the buy-bust team thus closed in, and PO3 Salisa held appellant’s arm and introduced
himself as a police officer and informed him of his violation and his constitutional rights. PO3 Salisa then
placed the markings "EXH-1 AMS" and "EXH-B AMS 03/13/03" on the two sachets.

The buy-bust team brought appellant to the Rizal Medical Center for physical check-up, and later to the
Pasig City Police Station. In a memorandum, accomplished at 3:00 p.m. also on March 13, 2003, addressed
to the Chief of the Physical Science Division of the Eastern Police District-Philippine National Police
(EPD-PNP) Laboratory Service, P/Insp. Villaruel requested for the conduct of laboratory examination on
the seized items to determine the presence of dangerous drugs and their weight.

Still on the same day, March 13, 2003, at 3:55 P.M., the plastic sachets were delivered to Police Inspector
Lourdeliza M. Gural, Forensic Chemist at the EPD-PNP Crime Laboratory Office who examined them and
recorded at 5:55 p.m. of even date her findings and conclusion in Chemistry Report No. D-455-03-E, viz:

SPECIMEN SUBMITTED:

Two (2) heat-sealed transparent plastic sachets with markings "EXH-1 AMS and EXH-B AMS 03/13/03"
each containing 0.04 gram of white crystalline substance and marked as A and B respectively.

xxxx

F I N D I N G S:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for
Methylamphetamine hydrochloride, a dangerous drug.

xxxx

C O N C L U S I O N:

Specimens A and B contain Methylamphetamine Hydrochloride, a dangerous drug.3 (Emphasis and

underscoring supplied)

xxxx

Hence, the filing of the Information against appellant.

Denying the charge against him, appellant claimed that he was framed up and gave the following version:
On March 13, 2003, as he was walking towards his mother’s house in SPS Compound, Barangay Bambang,
Pasig City, two police officers accosted him, in the presence of "kibitzers," for allegedly selling shabu. He
was dragged and brought inside a parked van wherein the police officers, under threats, tried to elicit from
him information on the whereabouts of a certain "Ebot" and "Beng" whom he did not personally know,
however. The police officers tried to extort from him P200,000, which was reduced to P20,000, for his
release but he did not come across as he could not afford it, hence, they charged him with violation of
Section 5, Article II of R.A. 9165.

Appellant presented Lourdes Sanchez, his mother’s neighbor, who declared that at the time of the incident,
while she was outside her nipa hut in the field waiting for her son, she saw appellant come out of "the
alley" upon which two police officers approached and handcuffed him, and "[w]hen there were many
kibitzers around," they dragged him "near the van."

Finding for the prosecution, the trial court, by Decision of January 23, 2004, convicted appellant, disposing
as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused WILLIE RIVERA
GUILTY beyond reasonable doubt of the crime of violation of Section 5, Article II, R.A. 9165 for selling of
shabu as charged in the information, and he is hereby sentenced to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of P500,000.00.

Considering the penalty imposed by the Court, his immediate commitment to the National Penitentiary is
hereby ordered.

SO ORDERED.4 (Emphasis in the original)

The case was forwarded to the Court after appellant filed a notice of appeal. Per People v. Mateo,5
however, this Court referred the case to the Court of Appeals by Resolution of August 3, 2005.6

As earlier stated, the Court of Appeals upheld appellant’s conviction.

Hence, the present appeal, appellant faulting the appellate court

I. . . . IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED.

II. . . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF

VIOLATION OF SECTION 5, ARTICLE II OF REPUBLIC ACT 9165.7 (Underscoring supplied)

Appellant questions his arrest without warrant, not any of the instances when a warrantless arrest – the
person to be arrested must have committed, is actually committing, or is attempting to commit an offense8
–having been allegedly present when he was arrested.

Buenaventura v. People,9 citing People v. Bagsit,10 teaches, however:

x x x It is long settled that where the accused, by his voluntary submission to the jurisdiction of the court,
as shown by the counsel-assisted plea he entered during the arraignment and his active participation in the
trial thereafter, voluntarily waives his constitutional protection against illegal arrests and searches. We have
consistently ruled that any objection concerning the issuance or service of a warrant or a procedure in the
acquisition by the court of jurisdiction over the person of the accused must be made before he enters his
plea, otherwise, the objection is deemed waived. (Citations omitted; underscoring supplied)

The records do not show that appellant raised any question on the legality of his arrest before he was
arraigned or in his petition for bail. By submitting himself to the jurisdiction of the court and presenting
evidence in his defense, appellant voluntarily waived his constitutional protection against illegal arrest.
In any event, appellant forgets that from the evidence for the prosecution, he was arrested while committing
a crime – peddling of illegal drugs, a circumstance where warrantless arrest is justified under Rule 113,
Section 5(a) of the Rules of Court which reads:

SEC. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense.

xxxx

Appellant’s other assigned error delves on the reliance by the lower courts on the prosecution evidence in
finding him guilty beyond reasonable doubt.

The matter of assigning values to declarations on the witness stand is best and most competently performed
by the trial judge who, unlike appellate magistrates, can weigh such testimony in light of the witness’
demeanor, conduct and position to discriminate between truth and falsehood. That is a time-tested doctrine.
Thus, appellate courts will not disturb the credence, or lack of it, accorded by the trial court to the
testimonies of witnesses. This is especially true when the trial court’s findings have been affirmed by the
appellate court as in the present case, because they are generally conclusive and binding upon the Court,
unless it be manifestly shown, and appellant has not in the present case, that the lower courts had
overlooked or disregarded arbitrarily the facts and circumstances of significance in the case.11

Given the penalty imposed on appellant, however, the Court just the same assiduously evaluated the
evidence for the prosecution but found nothing to warrant a reversal of the lower courts’ evaluation.

Appellant has not even proffered any credible motive why the police officers would falsely charge him. His
alleged refusal to divulge the whereabouts of those two persons mentioned above fails to impress. Neither
does his claim that the police officers wanted him to pay off his liberty. For, inter alia, if he were just a
house painter, as he claimed, and not a drug dealer, the police would not expect him to come up with such
amount (P20,000). Besides, since, by his and his witness’ information, there were "kibitzers" around,
including neighbors, when he was arrested, why no timely succor to him, or any form of protest by anyone
of them against his arrest was lodged, if he were indeed innocent, does not speak well of his defense.

In consonance with the hornbook precept that an appeal in a criminal case opens the entire case for review
on any question including one not raised by the parties, the Court went on to determine whether the
requirements of Section 21.112 of R.A. 9165 was complied with.

The buy bust operation in the present case was coordinated with the PDEA. After the sachets of shabu were
confiscated from appellant and PO3 Salisa marked them, a spot report was submitted to the PDEA detailing
the items seized from appellant and the procedure undertaken.13 P/Sr. Inspector Villaruel14 soon after
issued a memorandum transmitting the sachets to, which were received at 3:55 P.M. by, the EPD-PNP
Crime Laboratory for examination.15

While PO3 Salisa’s testimony did not indicate if he made a list of the sachets as well as the buy-bust money
in the presence of appellant or if photographs thereof were taken, the defense did not propound questions
suggesting doubt as to the integrity of the sachets.

People v. Pringas teaches that non-compliance with Section 21 is not necessarily fatal as long as there is
justifiable ground therefor, what is important being the preservation of the integrity and evidentiary value
of the seized items:

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is
justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized
items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an
accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance
is the preservation of the integrity and the evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the accused.16 (Citation omitted, emphasis
supplied)

Appellant, as in Pringas, has not questioned at any stage of the case the custody and disposition of the items
taken from him.

At all events, the Court appreciates no showing that the integrity of the seized items has been compromised.

WHEREFORE, the August 14, 2006 Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

G.R. No. 181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T.
ANDANAR, Respondents.

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11
September 2009 (Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the
COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The
Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and
declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by
Section 13 of RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the
charge of premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in
premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph,
Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his
certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso
in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution
of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of
candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider
his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her
election as a candidate, hence, constituting premature campaigning, for which he/she may be
disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning after the filing of the
certificate of candidacy but even before the start of the campaign period. From the filing of the certificate
of candidacy, even long before the start of the campaign period, the Decision considers the partisan
political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a
candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start
of the campaign period. In short, the Decision considers a person who files a certificate of candidacy
already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy
is not a candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person
engages in an election campaign or partisan political activity; (2) the act is designed to promote the election
or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who
"has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of
candidacy, he is not a "candidate." The third element requires that the campaign period has not started when
the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which
under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no
one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day,
there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the
last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only
acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts
done on such last day, which is before the start of the campaign period and after at least one candidate has
filed his certificate of candidacy. This is perhaps the reason why those running for elective public office
usually file their certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were
committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate
of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the
campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of
candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2
January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the
certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately
liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to
the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot
shall be provided.
Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national or local, running for any office other than
the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be
deemed resigned only upon the start of the campaign period corresponding to the position for which he/she
is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998
elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-
President, Senators and candidates under the party-list system as well as petitions for registration and/or
manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the
filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas
at the price comparable with that of private printers under proper security measures which the Commission
shall adopt. The Commission may contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements.
Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial
number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive
hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks,
magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for
every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give
ample time for the printing of official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for
local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and
there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring
about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of
candidacy will not result in that official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet commence. Because here, the reason why
we are doing an early filing is to afford enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will
withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply
immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the
Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as
presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore
because we are talking about the 120-day period before election as the last day of filing a certificate of
candidacy, election period starts 120 days also. So that is election period already. But he will still not be
considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio
filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a
certificate of candidacy before 2 January 2004 to make the person filing to become immediately a
"candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate
application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436
and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in
the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the
start of the campaign period. This ground was based on the deliberations of the legislators who explained
the intent of the provisions of RA 8436, which laid the legal framework for an automated election system.
There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy
is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law,
realizing that Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to
RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4
(Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required
by the automated election system would be disqualified or penalized for any partisan political act done
before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot
doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy
within this period shall only be considered as a candidate at the start of the campaign period for which he
filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding
a public appointive office or position, including active members of the armed forces, and officers and
employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certificate of
candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the
third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on
the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second
sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion
of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the
entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the
constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is
irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15
of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15
of RA 8436. The original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can
be committed by a candidate "only" upon the start of the campaign period. This clearly means that before
the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of
law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the
campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read
together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely
file a certificate of candidacy for a person to be considered a candidate because "any person who files his
certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the
campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of
candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall
be considered a candidate, for purposes of determining one’s possible violations of election laws, only
during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed
to promote the election or defeat of a particular candidate or candidates to public office simply because
there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of
her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned
motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed
her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for
purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for
purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date
when she became a "candidate," even if constituting election campaigning or partisan political activities,
are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a
citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not
covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph,
the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon
the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful
act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does
not mean that the acts constituting premature campaigning can only be committed, for which the offender
may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in
said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the
offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate
(thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b)
of the Omnibus Election Code as election campaign or partisan political activity, However, only after said
person officially becomes a candidate, at the beginning of the campaign period, can said acts be given
effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for
acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the
person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts,
constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who
are only about to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is
specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds
involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act
unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section
15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign
period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period." The only inescapable and logical
result is that the same acts, if done before the start of the campaign period, are lawful.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during
the campaign period, not before. The law is clear as daylight — any election offense that may be committed
by a candidate under any election law cannot be committed before the start of the campaign period. In
ruling that Penera is liable for premature campaigning for partisan political acts before the start of the
campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or
prosecuted only after the start of the campaign period. This is not what the law says. What the law says is
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign
period." The plain meaning of this provision is that the effective date when partisan political acts become
unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the
same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate
before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign
period. Neither does the law state that partisan political acts done by a candidate before the campaign
period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly
not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act
and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the
campaign period. This Court has no power to ignore the clear and express mandate of the law that "any
person who files his certificate of candidacy within [the filing] period shall only be considered a candidate
at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court
turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable
to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the
Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second
sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA
8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE
the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the
Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the
COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.

SO ORDERED.