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G.R. No. 168338 - ASSOCIATE JUSTICE NACHURA DISSENTING OPINION

G.R. No. 168338 - ASSOCIATE JUSTICE NACHURA DISSENTING OPINION

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 168338 : February 15, 2008]

FRANCISCO CHAVEZ, Petitioner, v. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents.

DISSENTING OPINION

NACHURA, J.:

I respectfully register my dissent to the majority opinion penned by the esteemed Chief Justice. The assailed press releases and statements do not constitute a prior restraint on free speech. It was not improper for the NTC to warn the broast media that the airing of taped materials, if subsequently shown to be false, would be a violation of law and of the terms of their certificate of authority, and could lead, after appropriate investigation, to the cancellation or revocation of their license.

The Facts

This case arose from events that transpired a year after the 2004 national and local elections, a period marked by disquiet and unrest; events that rocked the very foundations of the present administration.

To recall, on June 5, 2005, Press Secretary Ignacio Bunye conveyed to reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a bugged mobile phone conversation allegedly between the President of the Republic of the Philippines and a high-ranking official of the Commission on Elections (COMELEC).1

The following day, June 6, 2005, Secretary Bunye presented and played two compact discs (CD's) to the Malacañan Press Corps, and explained that the first contained the wiretap, while the second, the spliced, doctored, and altered version which would suggest that during the 2004 National and Local Elections the President instructed the COMELEC official to manipulate in her favor the election results.2

Atty. Alan Paguia, former counsel of then President Joseph E. Estrada, subsequently released, on June 7, 2005, the alleged authentic tape recordings of the wiretap. Included, among others, in the tapes were purported conversations of the President, First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Virgilio Garcillano, and the late Senator Robert Barbers.3

On June 8, 2005, respondent Secretary of the Department of Justice (DOJ), Raul Gonzalez, informed news reporters that persons in possession of copies of the wiretap and media outlets broasting, or publishing the contents thereof, could be held liable under the Anti-Wiretapping Act [Republic Act No. 42004]. He further told newsmen, on the following day, that he had already instructed the National Bureau of Investigation (NBI) to monitor all radio stations and television networks for possible violations of the said law.5

Then, on June 10, 2005, former NBI Deputy Director Samuel Ong presented to the media the alleged master tape recordings of the wiretap or the so-called "mother of all tapes," and disclosed that their contents were wiretapped by T/Sgt. Vidal Doble of the Intelligence Service of the Armed Forces of the Philippines (ISAFP). Ong then called for the resignation of the President.6

On June 11, 2005, after several news reports, respondent National Telecommunications Commission (NTC) issued the following press release:

Contact:

Office of the Commissioner
National Telecommunications Commission
BIR Road, East Triangle, Diliman, Quezon City
Tel. 924-4048/924-4037
E-mail: [email protected]

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

In view of the unusual situation the country is in today, The (sic) National Telecommunications Commission (NTC) calls for sobriety among the operators and management of all radio and television stations in the country and reminds them, especially all broasters, to be careful and circumspect in the handling of news reportage, coverages of current affairs and discussion of public issues, by strictly adhering to the pertinent laws of the country, the current program standards embodied in radio and television codes and the existing circulars of the NTC.

The NTC said that now, more than ever, the profession of broasting demands a high sense of responsibility and discerning judgment of fairness and honesty at all times among broasters amidst all these rumors of unrest, destabilization attempts and controversies surrounding the alleged wiretapping of President GMA (sic) telephone conversations.

Taking into consideration the country's unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.

In addition to the above, the Commission reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular No. 111-12-85 explicitly states, among others, that "all radio broasting and television stations shall, during any broast or telecast, cut off from the air the speech, play, act or scene or other matters being broast and/or telecast if the tendency thereof" is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated in NTC Memorandum Circular No. 22-89 which, in addition thereto, prohibited radio, broasting and television stations from using their stations to broast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.

The Commission will not hesitate, after observing the requirements of due process, to apply with full force the provisions of the said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.7

On June 14, 2005, respondent NTC held a dialogue with the Officers and Board of Directors of the Kapisanan ng mga Broasters sa Pilipinas (KBP) to clarify the said press release. As a result, the NTC and the KBP issued a joint press release which reads:8

JOINT PRESS STATEMENT: NTC AND KBP

CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION CODES.

NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN COMMITTED TO THE EXERCISE (SIC) PRESS FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND HONESTY.

NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION OR FREE EXPRESSION OF VIEWS.

WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS DONE RESPONSIBLY.

KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE INCITING TO SEDITION AND/OR REBELLION.

THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR COMMENTARIES.

THE SUPPOSED WIRETAPPED (SIC) TAPES SHOULD BE TREATED WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL CONTENT OF THE SAME.9

On June 21, 2005, petitioner Francisco Chavez, a Filipino citizen, taxpayer and law practitioner, instituted the instant Rule 65 Petition10 for certiorari and prohibition with a prayer for the issuance of a temporary restraining order on the following grounds:

RESPONDENTS COMMITTED BLATANT VIOLATIONS OF THE FREEDOM OF EXPRESSION AND OF THE PRESS AND THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN ENSHRINED IN ARTICLE III, SECTIONS 4 AND 7 OF THE 1987 CONSTITUTION.

RESPONDENT NTC ACTED BEYOND ITS POWERS AS A REGULATORY BODY UNDER EXECUTIVE ORDER 546 AND REPUBLIC ACT NO. 7925 WHEN IT WARNED RADIO BROADCAST AND TELEVISION STATIONS WITH DIRE CONSEQUENCES IF THEY CONTINUED TO AIR CONTENTS OF THE CONTROVERSIAL TAPES OF THE PRESIDENT'S CONVERSATION.11

In their Comment12 to the petition, the respondents, through the Office of the Solicitor General (OSG), countered that: (1) the petitioner had no legal standing to file, and had no clear case or cause of action to support, the instant petition as to warrant judicial review;13 (2) the respondents did not violate petitioner's and/or the public's fundamental liberties of speech, of expression and of the press, and their right to information on matters of public concern;14 and (3) the respondent NTC did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction when it "fairly warned" radio and television owners/operators to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards.15

The Issues

For the resolution, therefore, of the Court are the following issues: (1) whether or not petitioner has locus standi; (2) whether or not there exists an actual case or controversy ripe for judicial review; and (3) whether or not the respondents gravely abused their discretion to warrant remedial action from the Court.

On the Procedural Issues

Petitioner has locus standi

Petitioner has standing to file the instant petition. The test is whether the party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.16 When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.17 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.18

In the case at bench, petitioner Chavez justifies his standing by alleging that the petition involves the enforcement of the constitutional rights of freedom of expression and of the press, and to information on matters of public concern.19 As a citizen of the Republic and as a taxpayer, petitioner has already satisfied the requisite personal stake in the outcome of the controversy. In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has shown in a number of prior cases, climaxing in David v. Macapagal-Arroyo.20

The main issues have been mooted, but the case
should nonetheless be resolved by the Court

The exercise by this Court of the power of judicial inquiry is limited to the determination of actual cases and controversies.21 An actual case or controversy means an existing conflict that is appropriate or ripe for judicial determination, one that is not conjectural or anticipatory, otherwise the decision of the court will amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.22 Neither will the Court determine a moot question in a case in which no practical relief can be granted. Indeed, it is unnecessary to indulge in academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced.23

In the instant case, it is readily observable that the subsequent joint statement of the respondent NTC and the Officers and Board of Directors of the KBP after their June 14, 2005 dialogue not only substantially diminished24 but, in fact, obliterated the effects of the earlier press warnings, thus rendering the case moot and academic. Notably, the joint press statement acknowledged that "NTC did not issue any memorandum circular or order constituting a restraint of press freedom or censorship."

A case becomes moot when its purpose has become stale.25

Be that as it may, the Court should discuss and resolve the fundamental issues raised herein, in observance of the rule that courts shall decide a question otherwise moot and academic if it is capable of repetition yet evasive of review.26

The Dissent

The assailed press statement does not infringe
on the constitutional right to free expression

Petitioner assails the constitutionality of respondents' press release and statements warning radio stations and television networks of the possible cancellation of their licenses and of potential criminal prosecution that they may face should they broast or publish the contents of the tapes. Petitioner contends that the assailed press release and statements infringe on the freedom of expression and of the press.

I do not agree, for the following reasons:

1. The issuance of the press release was a valid exercise
of the NTC's regulatory authority over broast media.

Admittedly, freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. But it is also a settled principle, growing out of the nature of well-ordered civil societies that the exercise of the right is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the rights of the community or society.27 Consistent with this principle, the exercise of the freedom may be the subject of reasonable government regulation.

The broast media are no exception. In fact, in Federal Communications Commission (FCC) v. League of Women Voters in America,28 it was held that '

(W)e have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource. The distinctive feature of Congress' efforts in this area has been to ensure through the regulatory oversight of the FCC that only those who satisfy the "public interest, convenience and necessity" are granted a license to use radio and television broast frequencies.

In the Philippines, it is the respondent NTC that has regulatory powers over telecommunications networks. In Republic Act No. 7925,29 the NTC is denominated as its principal administrator, and as such shall take the necessary measures to implement the policies and objectives set forth in the Act. Under Executive Order 546,30 the NTC is mandated, among others, to establish and prescribe rules, regulations, standards and specifications in all cases related to the issued Certificate of Public Convenience, promulgate rules and regulations as public safety and interest may require, and supervise and inspect the operation of radio stations and telecommunications facilities.31 The NTC exercises quasi-judicial powers.32

The issuance of the press release by NTC was well within the scope of its regulatory and supervision functions, part of which is to ensure that the radio and television stations comply with the law and the terms of their respective authority. Thus, it was not improper for the NTC to warn the broast media that the airing of taped materials, if subsequently shown to be false, would be a violation of law and of the terms of their certificate of authority, and could lead, after appropriate investigation, to the cancellation or revocation of their license.

2. The press release was not in the nature
of "prior restraint" on freedom of expression

Courts have traditionally recognized two cognate and complementary facets of freedom of expression, namely: freedom from censorship or prior restraint and freedom from subsequent punishment. The first guarantees untrammeled right to expression, free from legislative, administrative or judicial orders which would effectively bar speech or publication even before it is made. The second prohibits the imposition of any sanction or penalty for the speech or publication after its occurrence. Freedom from prior restraint has enjoyed the widest spectrum of protection, but no real constitutional challenge has been raised against the validity of laws that punish abuse of the freedom, such as the laws on libel, sedition or obscenity.

"Prior restraint" is generally understood as an imposition in advance of a limit upon speech or other forms of expression.33 In determining whether a restriction is a prior restraint, one of the key factors considered is whether the restraint prevents the expression of a message.34 In Nebraska Press Association v. Stuart,35 the U.S. Supreme Court declared:

A prior restraint' by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time.

As an aspect of freedom of expression, prior restraint should not be confused with subsequent punishment. In Alexander v. U.S.,36 petitioner's complaint was that the RICO forfeiture provisions on businesses dealing in expressive materials constituted "prior restraint" because they may have an improper "chilling" effect on free expression by deterring others from engaging in protected speech. In rejecting the petitioner's contention and ruling that the forfeiture is a permissible criminal punishment and not a prior restraint on speech, the U.S. Supreme Court said:

The term prior restraint is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Temporary restraining orders and permanent injunctions - i.e., court orders that actually forbid speech activities - are classic examples of prior restraints.

x x x

Finally, petitioner's proposed definition of the term "prior restraint" would undermine the time-honored distinction between barring speech in the future and penalizing past speech. The doctrine of prior restraint originated in the common law of England where prior restraints of the press were not permitted, but punishment after publication was. This very limited application of the principle of freedom of speech was held inconsistent with our First Amendment as long ago as Grosjean v. American Press Co. While we may have given a broader definition to the term "prior restraint" than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as "neither meaningful nor useful," we think it is critical to our First Amendment jurisprudence. Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, it is important for us to delineate with some precision the defining characteristics of a prior restraint. To hold that the forfeiture order in this case constituted a prior restraint would have the exact opposite effect. It would blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not.

A survey of free speech cases in our jurisdiction reveals the same disposition: there is prior restraint when the government act forbids speech, prohibits the expression of a message, or imposes onerous requirements or restrictions for the publication or dissemination of ideas. In theses cases, we did not hesitate to strike down the administrative or judicial order for violating the free expression clause in the Constitution.

Thus, in Primicias v. Fugoso37 and in Reyes v. Bagatsing,38 the refusal, without valid cause, of the City Mayor of Manila to issue a permit for a public assembly was held to have infringed freedom of expression. In Burgos v. Chief of Staff39 and in Eastern Broasting v. Dans,40 the closure of the printing office of the newspapers, We Forum and Metropolitan Mail, and of radio station DYRE in Cebu, respectively, was ruled as violation of freedom of the press.

On election-related restrictions, Mutuc v. COMELEC41 invalidated the respondent's prohibition against the use of taped jingles in mobile units of candidates; Adiong v. COMELEC42 struck down the COMELEC's resolution limiting the posting of candidates' decals and stickers only in designated areas and not allowing them in private or public vehicles; Sanidad v. COMELEC43 declared as unconstitutional the COMELEC prohibition on newspaper columnists and radio commentators to use their columns or programs to campaign for or against the ratification of the organic act establishing the Cordillera Autonomous Region; ABS-CBN Broasting Corporation v. COMELEC44 annulled the COMELEC resolution prohibiting the conduct of exit polls; and Social Weather Stations v. COMELEC45 nullified Section 5.4 of Republic Act No. 9006 and Section 24(h) of COMELEC Resolution 3636 which prohibited the publication of pre-election survey results within specified periods.

On movies and television, the injunctive writs issued by lower courts against the movie producers in Ayer Productions Pty. Ltd. v. Capulong46 and in Viva Productions v. Court of Appeals47 were invalidated, while in Iglesia ni Cristo v. Court of Appeals,48 the X-rating given by MTRCB to the television show was ruled as grave abuse of discretion.

But there is no parity between these cases and the case at bench. Unlike the government acts in the above-cited cases, what we have before us now is merely a press release not an order or a circular warning broast media on the airing of an alleged taped conversation, with the caveat that should its falsity be subsequently established, the act could lead to the revocation or cancellation of their licenses, after appropriate investigation. The warnings on possible license revocation and criminal prosecution are simply what they are, mere warnings. They have no compulsive effect, as they do not impose a limit on speech or other forms of expression nor do they prevent the expression of a message.

The judicial angle of vision in testing the validity of the assailed press release against the prior restraint standard is its operation and substance. The phrase "prior restraint" is not a self-wielding sword, nor should it serve as a talismanic test. What is needed is a practical assessment of its operation in specific or particular circumstances.49

Significant are our own decisions in a number of cases where we rejected the contention that there was infringement of freedom of expression. In Lagunzad v. Vda. de Gonzales,50 after balancing the right to privacy of Padilla's family with the right to free expression of the movie producer, we did not deem the Licensing Agreement for the movie depiction of the life of Moises Padilla as imposition of an impermissible limit on free speech. In Presidential Commission on Good Government (PCGG) v. Nepomuceno,51 we refused to consider the PCGG takeover of radio station DWRN as an infringement on freedom of the press. In Tolentino v. Secretary of Finance,52 we did not yield to the proposition of the press that the imposition of value added tax (VAT) on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication was an abridgment of press freedom. In Lagunzad, we said that while the License Agreement allowed the producer to portray in a movie the life of Moises Padilla, it did not confer poetic license to incorporate fictional embellishments. The takeover in PCGG was merely intended to preserve the assets, funds and properties of the station while it maintained its broasting operations. The VAT in Tolentino did not inhibit or impede the circulation of the newspapers concerned.

Similarly, in the instant case, the issuance of the press release was simply part of the duties of the NTC in the enforcement and administration of the laws which it is tasked to implement. The press release did not actually or directly prevent the expression of a message. The respondents never issued instructions prohibiting or stopping the publication of the alleged wiretapped conversation. The warning or advisory in question did not constitute suppression, and the possible in terrorem effect, if any, is not prior restraint. It is not prior restraint because, if at all, the feared license revocation and criminal prosecution come after the publication, not before it, and only after a determination by the proper authorities that there was, indeed, a violation of law.

The press release does not have a "chilling effect" because even without the press release, existing laws'and rules and regulations'authorize the revocation of licenses of broast stations if they are found to have violated penal laws or the terms of their authority.53 The majority opinion emphasizes the chilling effect of the challenged press releases'the fear of prosecution, cancellation or revocation of license by virtue of the said press statements.54 With all due respect, the majority loses sight of the fact that the press statements are not a prerequisite to prosecution, neither does the petition demonstrate that prosecution is any more likely because of them. If the prosecutorial arm of the Government and the NTC deem a media entity's act to be violative of our penal laws or the rules and regulations governing broaster's licenses, they are free to prosecute or to revoke the licenses of the erring entities with or without the challenged press releases.55

The petitioner likewise makes capital of the alleged prior determination and conclusion made by the respondents that the continuous airing of the tapes is a violation of the Anti-Wiretapping Law and of the conditions of the authority granted to the broast stations. The assailed portion of the press release reads:

Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the commission that the continuous airing or broast of the said taped conversations by radio and television stations is a continuing violation of the anti-wiretapping law and the conditions of the provisional authority and/or certificate of authority issued to these radio and television stations.

However, that part of the press statement should not be read in isolation, but in the context of the entire paragraph, the rest of which reads:

If it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.

Obviously, this latter portion qualifies the earlier part of the paragraph. Only when it has been sufficiently established, after a prosecution or appropriate investigation, that the tapes are false or fraudulent may there be a cancellation or revocation of the station's license. There is no gainsaying that the airing of false information or willful misrepresentation constitutes a valid ground for revocation of the license, and so is violation of the Anti-Wiretapping Law which is a criminal offense. But that such revocation of license can only be effected after an appropriate investigation clearly shows that there are adequate safeguards available to the radio and television stations, and that there will be compliance with the due process clause.

It is noteworthy that in the joint press statement issued on June 14, 2005 by the NTC and the Kapisanan ng mga Broasters sa Pilipinas, there is an acknowledgement by the parties that NTC "did not issue any MC (Memorandum Circular) or order constituting a restraint of press freedom or censorship." If the broasters who should be the most affected by the assailed NTC press release, by this acknowledgement, do not feel aggrieved at all, we should be guided accordingly. We cannot be more popish than the pope.

Finally, we believe that the "clear and present danger rule" the universally-accepted norm for testing the validity of governmental intervention in free speech finds no application in this case precisely because there is no prior restraint.

3. The penal sanction in R.A. 4200 or
the revocation of the license for violation
of the terms and conditions of the provisional
authority or certificate of authority is
permissible punishment and does not
infringe on freedom of expression.

The Anti-Wiretapping Law (Republic Act 4200) is a penal statute. Over the years, no successful challenge to its validity has been sustained. Conviction under the law should fittingly be a just cause for the revocation of the license of the erring radio or television station.

Pursuant to its regulatory authority, the NTC has issued memorandum circulars covering Program Standards to be followed by radio stations and television networks, a common provision of which reads:

All radio broasting and television stations shall provide adequate public service time, shall conform to the ethics of honest enterprise; and shall not use its stations for the broasting or telecasting of obscene or indecent language, speech and/or scene, or for the dissemination of false information or willful misrepresentation, or to the detriment of the public health or to incite, encourage or assist in subversive or treasonable acts.56

Accordingly, in the Provisional Authority or the Certificate of Authority issued to all radio, television and cable TV stations, which all licensees must faithfully abide with, there is incorporated, among its terms and conditions, the following clause:

Applicant-Grantee shall provide free of charge, a minimum of thirty (30) hours/month time or access channel thru its radio/television station facilities to the National Government to enable it to reach the population on important public issues; assist public information and education; conform with the ethics of honest enterprise; and shall not use its stations for the telecasting of obscene or for dissemination of false information or willful misrepresentation, or do any such act to the detriment of public welfare, health, morals or to incite, encourage, or assist in any treasonous, rebellious, or subversive acts/omissions.

Undoubtedly, this is a reasonable standard of conduct demanded of the media outlets. The sanction that may be imposed for breach thereof'suspension, cancellation or revocation of the station's license after an appropriate investigation has sufficiently established that there was a breach is also reasonable. It cannot be characterized as impermissible punishment which violates freedom of expression.

There is no transgression of the people's right
to information on matters of public concern.

With the foregoing disquisition that there was no infringement on freedom of expression, there is no case for violation of the right to information on matters of public concern. Indeed, in the context of the prevailing factual milieu of the case at bench, the petitioner's contention can thrive only if there is a showing that the act of the respondents constituted prior restraint.

There is, therefore, no further need to belabor the point.

NTC did not commit grave abuse of
discretion when it issued the press release

Grave abuse of discretion is defined as such capricious or whimsical exercise of judgment equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.57 For grave abuse of discretion to be present, petitioner must show that the respondents violated or ignored the Constitution, the laws or existing jurisprudence.58

As discussed earlier, respondents, in making the questioned press releases, did not violate or threaten to violate the constitutional rights to free expression and to information on matters of public concern. No grave abuse of discretion can be imputed to them.

One final word. With the benefit of hindsight, it is noted that from the time the assailed press releases were issued and up to the present, the feared criminal prosecution and license revocation never materialized. They remain imagined concerns, even after the contents of the tapes had been much talked about and publicized.

I therefore vote to dismiss the Petition for Certiorari and prohibition.

Endnotes:


1 Rollo, pp. 6-7.

2 Id. at 7 and 58.

3 Id. at 8 and 59.

4 Entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for Other Purposes."

5 Rollo, pp. 8-9 and 59.

6 Id. at 10 and 59.

7 Id. at 109-110.

8 Id. at 116.

9 Id. at 111-112.

10 Id. at 3-42.

11 Id. at 18.

12 Id. at 56-83.

13 Id. at 64-67.

14 Id. at 68-75.

15 Id. at 75-82.

16 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.

17 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

18 David v. Macapagal-Arroyo, G.R. NOS. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 223.

19 Rollo, p. 15.

20 Supra note 18.

21 Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case explains the standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.

22 La Bugal-B laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).

23 Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.

24 See Multimedia Holdings Corporation v. Circuit Court of Florida, St. John's County, 544 U.S. 1301, 125 S.Ct. 1624, 1626 (2005).

25 Rufino v. Endriga, G.R. NOS. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.

26 Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA 434, 447.

27 Primicias v. Fugoso, 80 Phil. 71 (1980), quoted in Justice Azcuna's ponencia in Bayan v. Ermita, G.R. No. 169838, April 25, 2006.

28 468 U.S. 364 (1984).

29 An Act to Promote and Govern the Development of Philippine Telecommunications and the Delivery of Public Telecommunications.

30 Dated July 23, 1979.

31 Section 15(e), (g), (h), Executive Order No. 546.

32 Section 16, Executive Order No. 546.

33 State v. Haley, 687 P.2d 305, 315 (1984).

34 Murray v. Lawson, 138 N.J. 206, 222; 649 A.2d 1253, 1261 (1994).

35 427 U.S. 539, 559 (1976).

36 510 U.S. 909, 114 S.Ct. 295, June 28, 1993.

37 80 Phil. 71 (1948).

38 No. L-65366, November 9, 1983, 125 SCRA 553, 564.

39 No. L-64261, December 26, 1984, 133 SCRA 800, 816.

40 137 SCRA 647.

41 36 SCRA 228.

42 G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.

43 G.R. No. 90878, January 29, 1990, 181 SCRA 529, 534-535.

44 G.R. No. 133486, January 28, 2000.

45 G.R. No. 147571, May 5, 2001, 357 SCRA 496, 506-507.

46 Nos. L-82380 and L-82398, April 29, 1988, 160 SCRA 861.

47 G.R. No. 123881, March 13, 1997.

48 G.R. No. 119673, July 26, 1996, 259 SCRA 529.

49 Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-442; 77 S.Ct. 1325, 1328 (1957).

50 181 Phil. 45.

51 G.R. No. 78750, April 20, 1990, 184 SCRA 449, 462-463.

52 G.R. NOS. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 and 115931, August 25, 1994, 235 SCRA 630, 675-682; see also Court's Resolution on the motions for reconsideration, October 30, 1995, 249 SCRA 628, 652-656.

53 Republic Act No. 3846; Executive Order No. 546; see pertinent memorandum circulars at <http://portal.ntc.gov.ph/wps/portal/!ut/p/.cmd/cs/.ce/7_0_A/.s/7_0_MA/_s. 7_0_A/7_0_MA> (visited: January 3, 2008); see also terms and conditions of provisional authority and/or certificate of authority granted to radio and television stations, rollo, pp. 119-128.

54 See Multimedia Holdings Corporation v. Circuit Court of Florida, St. John's County, supra note 24, at 1626-1627.

55 Id.

56 NTC Memorandum Circular No. 22-89.

57 Defensor-Santiago v. Guingona, 359 Phil. 276, 304 (1998).

58 Republic of the Philippines v. COCOFED, 423 Phil. 735, 774 (2001); Ang Bagong Bayani-OFW Labor Party v. COMELEC, 412 Phil. 308, 340 (2001).

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