Villar v TIP G.R. No. L-69198 April 17, 1985

CJ Fernando

"extraordinary legal and equitable remedies with prayer for preliminary mandatory injunction," which this Court considered as a special civil action for certiorari and prohibition

Facts:

In Malabanan v. Ramento, it was held that respect for the constitutional rights of peaceable assembly and free speech calls for a negative answer. If that were then, the petitioners are entitled to the remedy prayed for. There is, however, this other circumstance to be taken into consideration. In the opposition to the petition for preliminary mandatory injunction, reference was made to the academic records of petitioners.

Two of the petitioners, Rufino G. Salcon, Jr., and Romeo L. Guilatco, Jr., had only one failing grade each, with the first having failed in only one subject in either semester of 1984-1985 schoolyear and the second having failed in only one subject, having passed in eight other subjects in the 1984-1985 schoolyear. Petitioner Venecio Villar failed in two subjects but passed in four subjects in the first semester of the academic year, 1983-1984. Petitioner Inocencio F. Recitis passed all his subjects in the first semester of 19831984 schoolyear and had one failing grade during its second semester. He had two failing grades during the first semester of 1984-1985 schoolyear. Petitioner Noverto Barreto, had five failing grades in the first semester of schoolyear 1983-1984, six failing grades in the second semester of the same schoolyear, and six failing grades in the first semester of 1984-1985 schoolyear. Petitioner Edgardo de Leon, Jr., had three failing grades, one passing grade and one subject dropped in the first semester of schoolyear 1984-1985. Petitioner Regloben Laxamana had five failing grades with no passing grade in the first semester of 1984-1985 schoolyear. Petitioners Barreto, de Leon, Jr. and Laxamana could be denied enrollment in view of such failing grades. Respondent educational institution is under no obligation to admit them this coming academic year. The constitutional provision on academic freedom enjoyed by institutions of higher learning justifies such refusal.

Issue: Whether or not the exercise of the freedom of assembly on the part of certain students of respondent Technological Institute of the Philippines could be a basis for their being barred from enrollment.

Held:

No. Petitioners Venecio Villar, Rufino G. Salcon, Jr., Romeo L. Guilatco, Jr. and Inocencio F. Recites are entitled to the writs of certiorari and prohibition.

Ratio:

Malabanan v. Ramento, -held that respect for the constitutional rights of peaceable assembly and free speech calls for a negative answer.

Same case- As is quite clear from the opinion in Reyes v. Bagatsing, the invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom of expression, which is identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment and which 'is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the state has a right to prevent."

Same case- Petitioners invoke their rights to peaceable assembly and free speech, they are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Petitioners, therefore, have a valid cause for complaint if the exercise of the constitutional rights to free speech and peaceable assembly was visited by their expulsion from respondent College.

What cannot be stressed too sufficiently is that among the most important social, economic, and cultural rights is the right to education not only in the elementary and high school grades but also on the college level. The constitutional provision as to the State maintaining "a system of free public elementary education and, in areas where finances permit, establish and maintain a system of free public education" up to the high school level does not per se exclude the exercise of that right in colleges and universities.

As far as the right itself is concerned, not the effectiveness of the exercise of such right because of the lack of funds, Article 26 of the Universal Declaration of Human Rights provides: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

It is quite clear that while the right to college education is included in the social economic, and cultural rights, it is equally manifest that the obligation imposed on the State is not categorical, the phrase used being "generally available" and higher education, while being "equally accessible to all should be on the basis of merit." To that extent, therefore, there is justification for excluding three of the aforementioned petitioners because of their marked academic deficiency.

The academic freedom enjoyed by "institutions of higher learning" includes the right to set academic standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate against those students who exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right to the equal protection clause being disregarded.

U. S. v Perfecto March 4, 1922 G.R. No. 17493

J. Johnson

Facts:

The complainant charged the defendants with sedition in violating section 8 of Act No. 292 as amended by section 1 of Act No. 1692.

The defendants averred that:

(a) that the complaint was illegal and unconstitutional for the reason that it had been presented by a political entity without authority, and that the same had not been formulated in accordance with the essential requisites required by the law;

 (b) that the facts alleged in the complaint did not constitute a crime and that, even though they came under the provisions of Act No. 292 as reformed by Act No. 1592, said laws were null because they violated certain provisions of the organic law of the Philippine Island

 (c) that as a result of the first two grounds of the demurrer, the Court of First Instance of the city of Manila was without jurisdiction of the person of the defendants nor over the facts alleged in the complaint.

In the trial court, the judge ruled that he evidence was insufficient to show that one of the defendants, Mendoza, was guilty. He was absolved with ½ costs. However, the other defendant, Perfecto, was guilty and made to pay 500 and ½ of the costs.

Perfecto appealed to the SC and gave several assignments of error. These were:

(a) That the lower court committed an error in overruling the demurer;

(b) That the lower court committed an error in not declaring the complaint illegal and unconstitutional, in that it was entitled "The People of the Philippine Islands" instead of in the name o the "United States of America;"

(c) In not declaring illegal, unconstitutional, and null, Act Nos. 2667 and 2886 of the Philippine Legislature;

(d) In not declaring that Act No. 292, as amended by Act No. 1692, is null, illegal, and unconstitutional; and

(e) In not declaring that the trial court was without jurisdiction to try and decide the cause presented in the complaint.

The question of fact presented by the appellant claimed that the evidence given during the trial didn’t show that he was guilty of the crime charged in the complaint.

Issue: Did the defendant act in violation of violating section 8 of Act No. 292 as amended by section 1 of Act No. 1692?

Held: No. Petition granted

Ratio:

Given the evidence, the Supreme Court held that the appellant intended to disturb or obstruct any lawful officer in executing his office, nor that said publication tended to instigate others to cabal or to meet together for unlawful purposes, or to suggest or incite rebellious conspiracies or riots, or to stir up the people against the lawful authorities, or to disturb the peace of the community, or the safety and good order of the government.

To hold otherwise, upon the evidence adduced during the trial of the cause, in our opinion would be to abridge the freedom of the press in the Philippine Islands, which abridgment would be in direct contravention of the provisions of paragraph 13 of section 3 of the Jones Law.

When the citizens of a state become convinced that the administration of the affairs of their government is not carried on in accordance with the law, or is not conducted for the best interest of all concerned, they have not only a right but it is their duty to present the cause of their grievances to the public, and the free press of the state usually affords the best avenue for that purpose. To that end, the organic laws of all modern free states have wisely provided that "no law shall be passed, abridging the freedom of the press" and that no person shall be punished except for an above of that freedom. The interest of civilized society and the maintenance of good government demand a full and free discussion of all affairs of public interest.

Complete liberty to comment upon the administration of Government, as well as the conduct of public men, is necessary for free speech. the people are not obliged, under modern civilized government, to speak of the conduct of their officials, of their servants, in whispers or with bated breath. US. V Bustos

The freedom of the press consists in the right to publish the truth, with good motives and for justifiable ends, although said publication may be offensive to the Government, to the courts, or to individuals.

Chief Justice Marshall of the Supreme Court of the United States, in discussing the freedom of the press, said: "The spirit of the constitution and the opinion of the people cannot be curbed by those who administer the Government. Among those principles which are held most sacred by the people of America, there is none more deeply rooted in the public mind than that of the liberty of the press."

Webster- It is important to safeguard to the utmost the right to free speech and the free press. It is the ancient and constitutional right of our people to judge public matters and public men. It is such a self-evident right as the right to breathe the air and to walk on the surface of the earth. I will defend this high constitutional prerogative in time of war, in time of peace and all the time. Dead or alive I shall maintain it.

It is the particular duty of the people of the state to zealously maintain the right to express freely, either verbally or by publication, their honest convictions regarding the acts of public officials and the governing class. If the people of a free state should give up the right of free speech; if they are daunted by fear and threats, and abdicate their convictions; if the governing body of the state could silence all the voices those that extol their acts; if nothing relating to the conduct of the governing class can be reach the people except that which will uphold the men in power, then we may well say "Good-bye" to our liberties forever. While under such circumstances free government may still be maintained, their life, their soul, and their essentials will be gone. If the publication of the conduct of public officials annoys them, let them examine their own act and determine the time of the illustrious Voltaire he expressed the opinion that "tolerance was never the cause of internal strife in the state, on the contrary, the pursuit of intolerance has covered the world with blood. The tyrants of our thought have caused the greater part of the misfortunes of the world."

Dumlao v COMELEC G.R. No. L-52245. January 22, 1980

Preliminary Injunction and/or Restraining Order

J. Melencio-Herrera

Facts:

 Petitioner Dumlao is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980.

He specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution.

S4 -Any retired elective provincial, city of municipal official who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elecOted, shall not be qualified to run for the same elective local office from which he has retired.

He claimed that the aforecited provision was directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation.

His colleague Igot, assailed the same law for the prohibition for candidcay of a person who was convicted of a crime given that there was judgment for conviction and the prima facie nature of the filing of charges for the commission of such crimes.

He also questioned the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a "bona fide candidate for any public office shall be free from any form of harassment and discrimination." Apart form this, hey also attacked the term of office and the election period. These were Sec 7 of BP 51, Sec 4; Sec 6, and Sec 1 of BP 52.

Issue:

1. Did petitioners have standing

2. Are the statutory provisions violative of the Constitution?

Held:

1. No

2. Dumlao's petition dismissed. Igot's petition partially granted.

Petition granted

Ratio:

1. Dumalo sued as a candidate while Igot sued as a taxpayer. In order to determine judicial review, three requisites are present:

a. actual case and controversy

b. proper party

c. existence of a constitutional question

a. Dumlao has not yet been affected by the statute. No petition has yet been filed for his disqualification. It was only a hypothetical question.

b. Did they sustain direct injury as a result of the enforcement? No one has yet been adversely affected by the operation of the statutes.

c. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that his suit be dismissed.

However, they relaxed the procedural standard due to the public interest involved and the imminent elections.

2. Section 4 of BP Blg. 52 is not contrary to equal protection. The constitutional guarantee of equal protection of the laws is subject to rational classification.

If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable.

The requirement to retire government employees at 65 may or may not be a reasonable classification. Young blood can be encouraged to come in to politics.

But, in the case of a 65-year old elective local official who has already retired, there is reason to disqualify him from running for the same office, as provided for in the challenged provision. The need for new blood assumes relevance.

The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired an unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again.

It is for the very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection, neither does it permit such denial.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. hat constitutional guarantee is not violated by a reasonable classification is germane to the purpose of the law and applies to all those belonging to the same class.

The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even if at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies.

Regarding Igot's petition, the court held that explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel. An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running from public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office.

A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence.

And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him.

A legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Igot's petition was meritorious.

Sison v Ancheta G.R. No. L-59431. July 25, 1984.

C. J. Fernando

Declaratory Relief

Facts:

Petitioners challenged the constitutionality of Section 1 of Batas Pambansa Blg. 135. It amended

Section 21 of the National Internal Revenue Code of 1977, which provides for rates of tax on citizens or residents on (a) taxable compensation income, (b) taxable net income, (c) royalties, prizes, and other winnings, (d) interest from bank deposits and yield or any other monetary benefit from deposit substitutes and from trust fund and similar arrangements, (e) dividends and share of individual partner in the net profits of taxable partnership, (f) adjusted gross income.

Petitioner as taxpayer alleged that "he would be unduly discriminated against by the imposition of higher rates of tax upon his income arising from the exercise of his profession vis-a-vis those which are imposed upon fixed income or salaried individual taxpayers." He characterizes the above section as arbitrary amounting to class legislation, oppressive and capricious in character.

For petitioner, therefore, there is a transgression of both the equal protection and due process clauses of the Constitution as well as of the rule requiring uniformity in taxation.

The OSG prayed for dismissal of the petition due to lack of merit.

Issue: Whether the imposition of a higher tax rate on taxable net income derived from business or profession than on compensation is constitutionally infirm.

(WON there is a transgression of both the equal protection and due process clauses of the Constitution as well as of the rule requiring uniformity in taxation)

Held: No. Petition dismissed

Ratio:

 The need for more revenues is rationalized by the government's role to fill the gap not done by public enterprise in order to meet the needs of the times. It is better equipped to administer for the public welfare.

The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds.

The power to tax is an attribute of sovereignty and the strongest power of the government. There are restrictions, however, diversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked, as petitioner does, to invalidate in appropriate cases a revenue measure. If it were otherwise, taxation would be a destructive power.

The petitioner failed to prove that the statute ran counter to the Constitution. He used arbitrariness as basis without a factual foundation. This is merely to adhere to the authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion.

It is undoubted that the due process clause may be invoked where a taxing statute is so arbitrary that it finds no support in the Constitution. An obvious example is where it can be shown to amount to the confiscation of property. That would be a clear abuse of power.

 It has also been held that where the assailed tax measure is beyond the jurisdiction of the state, or is not for a public purpose, or, in case of a retroactive statute is so harsh and unreasonable, it is subject to attack on due process grounds.

For equal protection, the applicable standard to determine whether this was denied in the exercise of police power or eminent domain was the presence of the purpose of hostility or unreasonable discrimination.

It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looks upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.

The equal protection clause is, of course, inspired by the noble concept of approximating the ideal of the laws's benefits being available to all and the affairs of men being governed by that serene and impartial uniformity, which is of the very essence of the idea of law.

The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.

Lutz v Araneta- it is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.

Petitioner- kindred concept of uniformity- Court- Philippine Trust Company- The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable

Equality and uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation

There is quite a similarity then to the standard of equal protection for all that is required is that the tax "applies equally to all persons, firms and corporations placed in similar situation"

There was a difference between a tax rate and a tax base. There is no legal objection to a broader tax base or taxable income by eliminating all deductible items and at the same time reducing the applicable tax rate.

The discernible basis of classification is the susceptibility of the income to the application of generalized rules removing all deductible items for all taxpayers within the class and fixing a set of reduced tax rates to be applied to all of them. As there is practically no overhead expense, these taxpayers are not entitled to make deductions for income tax purposes because they are in the same situation more or less.

Taxpayers who are recipients of compensation income are set apart as a class.

On the other hand, in the case of professionals in the practice of their calling and businessmen, there is no uniformity in the costs or expenses necessary to produce their income. It would not be just then to disregard the disparities by giving all of them zero deduction and indiscriminately impose on all alike the same tax rates on the basis of gross income.

There was a lack of a factual foundation, the forcer of doctrines on due process and equal protection, and he reasonableness of the distinction between compensation and taxable net income of professionals and businessmen not being a dubious classification.

Ruiz v Gordon G.R. No. L-65695 December 19, 1983

C. J. Fernando

Facts:

Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation, filed a petition for mandamus against Richard Gordon to be allowed to hold a parade/march from Gordon Avenue to the Rizal Triangle starting at 1:00 P.M.

The Court required the respondents to answer. Respondents replied by stating the request for a prayer rally was received in the Office of the Mayor and that respondent had repeatedly announced in his regular program on Sunday over the radio (DWGO) and at the Monday morning flag ceremony before hundreds of government employees that he would grant the request of any group that would like to exercise their freedom of speech and assembly.

When interviewed on the matter by the Editor-in Chief of the 'Guardian', he mentioned the fact that he had granted the permit of the petitioner, which interview appeared in the November 22-28, 1983 issue of the said newspaper.

Given these, the respondent prayed for the dismissal of the petition. This was complied with.

Issue: Can the petition be granted?

Held No. Petition dismissed.

Ratio:

The Reyes case was given some discussion in the course of this petition as to the role of the judiciary in petitions for permits to hold peaceable assembles.

"The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.”

Thereafter, his decision must be transmmitted to them at the earliest opportunity. They can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights.

As shown both in the manifestation and the answer, this action for mandamus could have been obviated if only petitioner took the trouble of verifying on November 23 whether or not a permit had been issued. A party desirous of exercising the right to peaceable assembly should be the one most interested in ascertaining the action taken on a request for a permit. Necessarily, after a reasonable time or, if the day and time was designated for the decision on the request, such party or his representative should be at the office of the public official concerned. If he fails to do so, a copy of the decision reached, whether adverse or favorable, should be sent to the address of petitioner.

Teehankee concurring:

The burden to show the existence of such grave and imminent danger that would justify an adverse action lies on the mayor as the licensing authority. There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger. As the Court stated in its Resolution of October 25, 1983 in the J. B. L. Reyes case, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough."

As likewise underscored in the J. B. L. Reyes case, the exercise of the right of peaceable assembly is not to be 4 abridged on the plea that it may be exercised in some other place" (at paragraph 6) and "It is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression" (at paragraph 7).

J. Conception concurring opinion

9              In order that public officials may not be charged, rightly or wrongly, with dereliction of duty or abuse of powers in the granting or denying of such permits, the following guidelines are deemed necessary:

(a) When a peaceful assembly is to be held in a private lot, house, or edifice, only the consent of the owner of the place is necessary. No permit from the government or any public officer is required.

(b) When an application to hold a rally, parade, or peaceful assembly has to make use of public places like parks, plazas, and streets, the public authority charged with the duty of granting or denying the permit should also consider the convenience and the right of the rest of the public to use and enjoy these same facilities.

(c) Conditions of peace and order in the locality should be carefully considered and precautionary steps taken to prevent vandals, hooligans, provocateurs, and other criminals from turning into a violent one what otherwise should be a peaceful demonstration,

Osmena v Pendatun G.R. No. L-17144 October 28, 1960

J. Bengzon

Facts:

On July 14, 1960, Congressman Sergio Osmeña, Jr., submitted to the Supreme Court a verified petition for "declaratory relief, certiorari and prohibition with preliminary injunction" against Congressman Salapida K. Pendatun and fourteen other congressmen in their capacity as members of the Special Committee created by House Resolution No. 59.

He asked for annulment of such Resolution on the ground of infringenment of his parliamentary immunity; he also asked, principally, that said members of the special committee be enjoined from proceeding in accordance with it, particularly the portion authorizing them to require him to substantiate his charges against the President with the admonition that if he failed to do so, he must show cause why the House should not punish him.

The petition attached a copy of House Resolution No. 59, where it was stated that Sergio Osmeña, Jr., made a privilege speech entitled a Message to Garcia. There, he claimed to have been hearing of ugly reports that the government has been selling “free things” at premium prices. He also claimed that even pardons are for sale regardless of the gravity of the case.

The resolution stated that these charges, if made maliciously or recklessly and without basis in truth, would constitute a serious assault upon the dignity of the presidential office and would expose it to contempt and disrepute.

The resolution formed a special committee of fifteen Members to investigate the truth of the charges against the President of the Philippines made by Osmeña, Jr. It was authorized to summon him to appear before it to substantiate his charges, as well as to require the attendance of witnesses and/or the production of pertinent papers before it, and if he fails to do so he would be required to show cause why he should not be punished by the House. The special committee shall submit to the House a report of its findings before the adjournment of the present special session of the Congress of the Philippines.

In support of his request, Osmeña alleged that  the Resolution violated his constitutional absolute parliamentary immunity for speeches delivered in the House; second, his words constituted no actionable conduct; and third, after his allegedly objectionable speech and words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House provides that if other business has intervened after the member had uttered obnoxious words in debate, he shall not be held to answer therefor nor be subject to censure by the House.

The Supreme Court decided to hear the matter further, and required respondents to answer, without issuing any preliminary injunction.

The special committee continued to perform its task, and after giving Congressman Osmeña a chance to defend himself, found him guilty of serious disorderly behavior and acting on such report, the House approved on the same day House Resolution No. 175, declaring him guilty as recommended, and suspending him from office for fifteen months.

The respondents filed their answer where they challenged the jurisdiction of this Court to entertain the petition, defended the power of Congress to discipline its members with suspension and then invited attention to the fact that Congress having ended its session, the Committee had thereby ceased to exist.

After the new resolution, Osmena added that the House has no power under the Constitution, to suspend one of its members.

Issue:

Can Osmena be held liable for his speech?

Held: Yes. Petition dismissed.

Ratio:

Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the Senators or Members of the House of Representative "shall not be questioned in any other place." The provision has always been understood to mean that although exempt from prosecution or civil actions for their words uttered in Congress, the members of Congress may, nevertheless, be questioned in Congress itself.

Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7), recognize the House's power to hold a member responsible "for words spoken in debate."

Our Constitution enshrines parliamentary immunity whose purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one it may offend."

It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member.

For unparliamentary conduct, members of Parliament or of Congress have been censured, committed to prison, and even expelled by the votes of their colleagues. This was the traditional power of legislative assemblies to take disciplinary action against its members, including imprisonment, suspension or expulsion. For instance, the Philippine Senate, in April 1949, suspended a senator for one year.

Needless to add, the Rules of Philippine House of Representatives provide that the parliamentary practices of the Congress of the United States shall apply in a supplementary manner to its proceedings.

This brings up the third point of petitioner: the House may no longer take action against him, because after his speech it had taken up other business. Respondents answer that Resolution No. 59 was unanimously approved by the House, that such approval amounted to a suspension of the House Rules, which according to standard parliamentary practice may done by unanimous consent.

Granted that the House may suspended the operation of its Rules, it may not, however, affect past acts or renew its rights to take action which had already lapsed.

The situation might thus be compared to laws extending the period of limitation of actions and making them applicable to actions that had lapsed. At any rate, courts are subject to revocation modification or waiver at the pleasure of the body adopting them. Mere failure to conform to parliamentary usage will not invalidate the action taken by a deliberative body when the required number of members have agreed to a particular measure.

The following is quoted from a reported decision of the Supreme court of Tennessee:

The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure, adopted for the orderly con duct of business, and as security against hasty action. (Certain American cases)

In the case of Congressman Stanbery of Ohio, who insulted the Speaker, was censured by the House, despite the argument that other business had intervened after the objectionable remarks.

On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly conduct for which Osmeña may be disciplined, the court believed that the House is the judge of what constitutes disorderly behaviour, not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which can not be depicted in black and white for presentation to, and adjudication by the Courts. For one thing, if this Court assumed the power to determine whether Osmeña conduct constituted disorderly behaviour, it would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the Government. This was due to the theory of separation of powers fastidiously observed by this. Each department, it has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. (Angara vs. Electoral Commission.)

The general rule has been applied in other cases to cause the courts to refuse to intervene in what are exclusively legislative functions. Thus, where the stated Senate is given the power to example a member, the court will not review its action or revise even a most arbitrary or unfair decision.

Clifford vs. French- several senators who had been expelled by the State Senate of California for having taken a bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate had given them no hearing, nor a chance to make defense, besides falsity of the charges of bribery. The Supreme Court of California declined to interfere:

Under our form of government, the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, due to the Constitution. Every legislative body in which is vested the general legislative power of the state has the implied power to expel a member for any cause which it may deem sufficient.

 In Hiss. vs. Barlett, it was said that this power is inherent in every legislative body; that it is necessary to the to enable the body 'to perform its high functions, and is necessary to the safety of the state; That it is a power of self-protection, and that the legislative body must necessarily be the sole judge of the exigency which may justify and require its exercise. Given the exercise of the power committed to it, the senate is supreme. An attempt by this court to direct or control the legislature, or either house, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do.

The Court merely refuses to disregard the allocation of constitutional functions which it is our special duty to maintain. Indeed, in the interest of comity, we found the House of Representatives of the United States taking the position upon at least two occasions.

Petitioner's principal argument against the House's power to suspend is the Alejandrino precedent. In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office for 12 months because he had assaulted another member of that Body. The Senator challenged the validity of the resolution. Although this Court held that in view of the separation of powers, it had no jurisdiction to compel the Senate to reinstate petitioner, it nevertheless went on to say the Senate had no power to adopt the resolution because suspension for 12 months amounted to removal, and the Jones Law gave the Senate no power to remove an appointive member, like Senator Alejandrino. The Jones Law specifically provided that "each house may punish its members for disorderly behaviour, and, with the concurrence of two-thirds votes, expel an elective member. The Jones Law empowered the Governor General to appoint Senators. Alejandrino was one.

The opinion in that case stated that "suspension deprives the electoral district of representation without that district being afforded any means by which to fill that vacancy." But that remark should be understood to refer particularly to the appointive senator who was then the affected party.

Now the Congress has the full legislative powers and prerogatives of a sovereign nation, except as restricted by the Constitution. In the Alejandrino case, the Court reached the conclusion that the Jones Law did not give the Senate the power it then exercised—the power of suspension for one year. Now.  the Congress has the inherent legislative prerogative of suspension which the Constitution did not impair.

The Legislative power of the Philippine Congress is plenary, limited by the Republic's Constitution. So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Philippine Congress, unless the Constitution provides otherwise.

In any event, petitioner's argument as to the deprivation of the district's representation can not be weighty, becuase deliberative bodies have the power in proper cases, to commit one of their members to jail.

Now come questions of procedure and jurisdiction. The petition intended to prevent the Special Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary injunction had been issued, the Committee performed its task, reported to the House, and the latter approved the suspension order. The House had closed it session, and the Committee has ceased to exist as such. It would seem, therefore, the case should be dismissed for having become moot or academic.

Of course, there is nothing to prevent petitioner from filing new pleadings. But the most probable outcome of such reformed suit, however, will be a pronouncement of lack of jurisdiction.

People v Fajardo G.R. No. L-12172 August 29, 1958

J. B. L . Reyes

Facts:

 Fajardo was mayor in Baao, Camrines Sur when the municipal council passed the ordinance that prohibits the construction of a building that blocks the view of the town plaza. Moreover, it redirects the grant of permission to the mayor.

After his incumbency, Fajardo applied for a permit to build a building beside the gasoline station near the town plaza. His request was repeatedly denied.  He continued with the construction under the rationale that he needed a house to stay in because the old one was destroyed by a typhoon.

He was convicted and ordered to pay a fine and demolish the building due to its obstructing view.

He appealed to the CA, which in turn forwarded the petition due to the question of the ordinance’s constitutionality.

Issue: Is the ordinance constitutional?

Held: No, petition granted.

Ratio:

The ordinance doesn’t state any standard that limits the grant of power to the mayor. It is an arbitrary and unlimited conferment.

Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured. All of the authorities cited above sustain this conclusion.

The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of appellants property without just compensation.

While property may be regulated to the interest of the general welfare, and the state may eliminate structures offensive to the sight, the state may not permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community.

Fajardo would be constrained to let the land be fallow and not be used for urban purposes. To do this legally, there must be just compensation and they must be given an opportunity to be heard.

An ordinance which permanently so restricts the use of property that it can not be used for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property.

The validity was also refuted by the Admin Code which states:

SEC. 2243. Certain legislative powers of discretionary character. — The municipal council shall have authority to exercise the following discretionary powers:

x x x           x x x           x x x

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be constructed or repaired within them, and issue permits for the creation or repair thereof, charging a fee which shall be determined by the municipal council and which shall not be less than two pesos for each building permit and one peso for each repair permit issued. The fees collected under the provisions of this subsection shall accrue to the municipal school fund.

Since, there was absolutely no showing in this case that the municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not conceived and promulgated under the express authority of sec. 2243 (c)

Orfanel v People December 26, 1969 G.R. No. L-26877

C. J. Conception

Facts:

Defendant Godofredo Orfanel wrote to the Director of Printing and sent by ordinary mail a letter (Exhibit A) charging Jesus Ballesteros, an employee in the Bureau of Printing, of using office materials and facilities for his personal purposes such as printing Christmas cards and term papers. He also claimed that Ballesteros had businesses and wealth from his illicit activities.

The complaint was forwarded to the Civil Service Commission which exonerated Ballesteros. Subsequently, the Director of Printing forwarded Exhibit A to the Department of General Services for administrative action. A criminal complaint was then filed against Orfanel for libel. He was convicted in bothe the RTC and the CA.

Defendant maintains that the Court of Appeals has erred: (1) in not holding that Exhibit A is a "privileged communication which would exempt the author thereof from criminal responsibility"; (2) in basing his conviction on a "presumption of malice"; (3) in failing to hold "that Exhibit A merely contained an opinion or belief" for which defendant "incurred no criminal liability"; (4) in holding that the failure of the defense to present Artemio Holgado as a witness "should be taken against" him (defendant); and (5) "in holding that there had been publication of the letter Exhibit A."

Issues:

1.Did the CA err in in not holding that Exhibit A is a "privileged communication which would exempt the author thereof from criminal responsibility?

2. Did the CA err in basing his conviction on a "presumption of malice"?

3. Did the CA err in failing to hold "that Exhibit A merely contained an opinion or belief" for which defendant "incurred no criminal liability?

4. Did the CA err in holding that the failure of the defense to present Artemio Holgado as a witness "should be taken against" him (defendant)?

5. Did the CA err "in holding that there had been publication of the letter Exhibit A."?

Held: No to all. Petition dismissed.

Ratio:

1. it should be noted that a privileged communication may be either absolutely privileged or conditionally privileged. A communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith. This class includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings. Upon the other hand, conditionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith.

It has, moreover, been held that there is malice when the defamer has been prompted by ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed.

Exhibit A is not an absolutely privileged communication. It belongs to the class of communications regarded as qualifiedly privileged in the RPC:

ART. 354. Requirement for Publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral, or social duty

Exhibit A falls under the first subdivision of the above-quoted provision. Being conditional or qualified, the privileged nature of said communication does not warrant defendant's acquittal, if he acted in bad faith or with malice.

2. At the outset, it is not disputed that the imputations made in Exhibit A are per se defamatory. The defendant testified that he made them in good faith, believing that it was his duty to send Exhibit A to the Director of Printing; but, the trial court and the Court of Appeals found his testimony unworthy of credence.

This finding is one of fact, which is beyond our power to review, in this appeal by certiorari from a decision of the Court of Appeals. Section 29 of Republic Act No. 296 explicitly provides that decisions of said Court, when rendered in the exercise of its exclusive appellate jurisdiction over cases properly brought to it from Courts of First Instance, "shall be final", subject to the discretionary power of review by certiorari of the Supreme Court, on questions of law.

The findings of fact on the appellate court are conclusive at the Supreme Court.

The CA found that he acted with malice based on the following circumstances:

The imputations contained in his letter Exhibit A appear to be absolutely groundless. Indeed, the administrative investigation prompted by said communication resulted in the complete exoneration of complainant Jesus Ballesteros. What is more, in the present criminal action, defendant did not even try to prove either the truth of said imputations, or that there was any semblance of truth.

In Exhibit A, defendant said that he had in his possession a sample copy of the wedding invitation card allegedly "printed in the Bureau of Printing" and sold by the complainant to Artemio Holgado. Yet, defendant did not introduce or offer in evidence, either the aforementioned sample copy of the invitation or the testimony of Mr. Holgado. Defendant did not even explain why he failed to do so. Neither did he try to prove that complainant had actually "bought a choice lot in Las Piñas subdivision" and "a coconut plantation in Catanauan, Quezon", in addition to having "a fat bank account in a bank in Manila", as alleged in the fourth specification in said Exhibit A.

Worse still, he did not introduce any evidence of specific facts or circumstances that could have led a reasonably prudent man to believe honestly and earnestly that said imputations are true.

Also the defendant was motivated by a civil case for a parcel of land. He was a relative of the plaintiff and the lower courts presumed that he had a grudge on him. This was the finding of the lower courts, hence there was a presumption of malice.

In short, he was merely interested in embarrassing his cousin or putting him under a cloud of suspicion. Defendant's purpose was not to forestall the irregularities in the Bureau of Printing, in general. In his own words, his objective was "to stop the racketeering activities of Ballesteros", not of the other employees said to be involved in the racket because he didn’t name the other employees involved in the racket.

3. Under his third assignment of error, defendant insists that he cannot be punished for writing and sending Exhibit A, because he merely expressed therein his opinion or belief.

To begin with, this assertion is inaccurate. It is true he expressed in Exhibit A the "opinion or belief" that there was a "flourishing racket" in the Bureau of Printing and that this had been "going on for two years already." The defendant, however, went farther. He denounced in Exhibit A that complainant was the person engaged in such racket.

Then, again, in order to escape criminal responsibility for libel or slander, it is not enough for the party who writes a defamatory communication to another to say that he (the writer) expresses therein no more than his opinion or belief. The communication must be made in the performance of a "legal, moral, or social duty." Defendant had no such "legal, moral, or social duty" to convey his opinion or belief about complainant's moral fiber, to the Director of Printing or the Secretary of General Services. Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or disloyal officers and employees thereof, when there is reasonable ground to believe that they fall under this category.

He had no legal right, much less duty, to gossip, or foster the circulation of rumors, or jump at conclusions, and more so if they are gratuitous or groundless. Otherwise, the freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and promoting the general welfare, would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private, selfish and vindictive ends, thereby hampering the operation of the Government with administrative investigations of charges preferred without any color or appearance of truth, and with no other probable effect than the harassment of the officer or employee concerned, to the detriment of public service and public order.

Furthermore, the evidence on record does not satisfactorily show that the defendant really entertained the "opinion or belief" he claimed to have.

It is only logical to believe that, before writing Exhibit A on May 5, 1961, he must have made further inquiries and sought, with greater earnestness, evidence to support the charges therein set forth, and that he found no such evidence, because, otherwise, he would have introduced the same in the administrative investigation against complainant herein or, at least, in the case at bar.

Worse still, he did not introduce in the present case some of the evidence presented by him at the administrative investigation above referred to.

Defendant's own testimony, in said investigation, was to the effect that, on February 8, 1961, he paid Ballesteros P3.00 for a lead mold for calling cards. Defendant's other witnesses, in that investigation, were Antonio Muñoz and Cornelio Regala, Acting Chiefs, respectively, of the Job and Tabular Section and the Composing Division, of the Bureau of Printing. Both, in effect, affirmed that Ballesteros did not and could not have committed, in said office, the irregularities imputed to him by the defendant. Hence, defendant's evidence in said administrative investigation showed that nobody had given him the information mentioned in Exhibit A.

Newell-  The person must honestly believe in the truth of the charge he makes at the time he makes it. And this implies that he must have some ground for the assertion; it need not be a conclusive or convincing ground; but no charge should ever be made recklessly and wantonly, even in confidence. The inquirer should be put in possession of all known means of knowledge; if the only means of knowledge is hearsay, he should be told so. A rumor should never be stated as a fact; and in repeating a rumor care should be taken not to heighten its color or exaggerate its extent. If the only information possessed is contained in a letter, he should be given the letter and left to draw his own conclusions. A person should not speak with the air of knowing of his own knowledge that every word is a fact when he is merely repeating gossip or hazarding a series of reckless assertions. If time allows, and means of inquiry exist, he should make some attempt to sift the charge before spreading it. In short, confidential advice should be given seriously and conscientiously; it should be manifests that the person does not take pleasure in maligning the party, but is compelled to do so in the honest discharge of a painful duty.

Then, too, in the present case, there is proof of a litigation between immediate members of the family of both parties, which may have created a feeling of enmity between the complainant and the defendant, whereas, in the cases above-mentioned, there was nothing that could have so marred the personal relations between the complainant and the accused, apart from the fact that there was satisfactory proof of the latter's good faith and absence of malice.

4. Defendant claimed to believe in the truth of the charges contained in his letter Exhibit A, upon the ground that Artemio Holgado had allegedly informed him about it. It was his duty to prove that he had been, in fact, so tipped by Holgado. He should have known that Holgado's testimony would have been the best proof thereon. His failure, not only to introduce said testimony, but, also, to explain why he did not do so, necessarily weakened his defense.

Inference from not producing Evidence, distinguished. The principle has been already examined that a party's failure to produce evidence which, if favorable, would naturally have been produced, is open to the inference that the facts were unfavorable to his cause.

5. Under the last assignment of error, defendant assails the decision appealed from, upon the ground that he should not be held accountable for the fact that Exhibit A was read by the Administrative officer of the Bureau of Printing, who, apparently opens letters addressed to the Director of Printing, and, also, by his secretary, Mario Banzuela, to whom the Director had referred it, as well as by those who participated in the aforementioned investigation, inasmuch as said communication was addressed to no other than the Director of Printing.

It should be noted, however, that defendant had, likewise, sent a copy of Exhibit A to the Secretary of General Services. Moreover, considering that the former had explicitly asked an investigation of the charges preferred in said communication, it is obvious that the reading of Exhibit A by other persons than its aforementioned addressee was precisely what the defendant had envisaged and sought.

Indeed, "(a) libel is 'published' not only when it is widely circulated, but also when it is made known or brought to the attention or notice of another person" than its author and the offended party.

Municipality of Paranaque v VM Realty G.R. No. 127820. July 20, 1998

J. Panganiban

Petition for review on certiorari

Facts:

Under a city council resolution, the Municipality of Parañaque filed on September 20, 1993, a Complaint for expropriation against Private Respondent  V.M. Realty Corporation over two parcels of land of 10,000 square meters. The city previously negotiated for the sale of the property but VM didn’t accept.

The trial court issued an Order dated February 4, 1994, authorizing petitioner to take possession of the subject property upon deposit with its clerk of court of an amount equivalent to 15 percent of its fair market value based on its current tax declaration.

According to the respondent, the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by RA 7160 (the Local Government Code); and (b) the cause of action, if any, was barred by a prior judgment or res judicata. Petitioner claimed that res judicata was not applicable.

The trial court dismissed the case. The petitioner’s MFR was denied.  The CA affirmed.

Issues:

1. WON a resolution duly approved by the municipal council has the same force and effect of an ordinance and will not deprive an expropriation case of a valid cause of action.

2. WON the principle of res judicata as a ground for dismissal of case is not applicable when public interest is primarily involved.

Held: No to 1^st Yes to 2nd. Petition dismissed.

Ratio:

1. Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case “substantially complies with the requirements of the law” because the terms “ordinance” and “resolution” are synonymous for “the purpose of bestowing authority [on] the local government unit through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain.

To strengthen this point, the petitioner cited Article 36, Rule VI of the Rules and Regulations Implementing the Local Government Code, which provides:  “If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU may expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation proceedings.”

Court-No. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter’s control and restraints, imposed “through the law conferring the power or in other legislations.

Sec 19, RA 7160

A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws.

Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain:

1.  An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.

2.  The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless.

3.  There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws.

4.  A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council.  Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance.

We are not convinced by petitioner’s insistence that the terms “resolution” and “ordinance” are synonymous.  A municipal ordinance is different from a resolution.  An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code.  But Congress did not.  In a clear divergence from the previous Local Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance.

Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people.[35] Accordingly, the manifest change in the legislative language -- from “resolution” under BP 337 to “ordinance” under RA 7160 -- demands a strict construction.

When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation.

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to exercise eminent domain.  It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation.

Strictly speaking, the power of eminent domain delegated to an LGU is in reality not eminent but “inferior” domain, since it must conform to the limits imposed by the delegation, and thus partakes only of a share in eminent domain.

2. As correctly found by the Court of Appeals and the trial court, all the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it.

Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agent to expropriate private property.

Eminent Domain can reach every form of property which the State might need for public use whenever they need it.

While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case.

In Republic vs De Knecht, the Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the parties.  The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with.

Fernando v CA G.R. No. 159751 December 6, 2006

J. Quisimbing

Facts:

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police CIDG conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). 

On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. 

The warrant ordered the search of the store for copies of New Rave, Hustler, IOU magazine, and VHS tapes.

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair.  The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic.

All appellants pled not guilty to the offenses charged. They waived their right to present evidence.  The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners Fernando and Estorninos.

The CA affirmed the decision. The petitioners sought for review in the SC on certiorari and assailed the CA decision.

They assigned the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials.  Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernando’s ownership was sufficiently proven.  As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information.

Issue: Whether the appellate court erred in affirming the petitioners’ conviction.

Held: No. Petition dismissed.

Ratio:

 As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.   

One such regulation is Article 201 of the Revised Penal Code.  To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. Necessarily, that the confiscated materials are obscene must be proved.

People v. Kottinger-.obscenity as something which is offensive to chastity, decency or delicacy.  The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.

Also, “that which shocks the ordinary and common sense of men as an indecency.” The disclaimer was whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.

Go Pin- If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed.  However, the pictures here in question were used not exactly for art’s sake but rather for commercial purposes.  In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance.  Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures

Padan- An actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature.  In it, there is no room for art.  One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.

Katigbak- the Court measures obscenity in terms of the “dominant theme” of the material taken as a “whole” rather than in isolated passages.

Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene. Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and “two-cents worths” among judges as to what is obscene or what is art.

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter.  Significantly, the dynamism of human civilization does not help at all.  It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.  It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

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. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct. Ie offensive descriptions of sex acts.

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.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.

   Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The mayor’s permit shows that Fernando was the owner of the store.

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials.  Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served.