G.R. No. 222702




Rappler, Inc. vs. Andres D. Bautista, G.R. No. 222702, April 5, 2016 ♦ Decision, Carpio [J] ♦ Concurring Opinion, Leonen [J] EN BANC April 5, 2016 G.R. No. 222702 RAPPLER, INC., petitioner, vs. ANDRES D. BAUTISTA, respondent. CONCURRING OPINION LEONEN, J.: I concur. In addition, I disagree that petitioner availed itself of the wrong remedy in raising before this Court a controversy involving the fundamental right to free speech. I Respondent argues that petitioner availed itself of the wrong remedy since certiorari cannot challenge '"purely executive or administrative functions' of agencies."1 Moreover, prohibition cannot lie as respondent was not exercising any ministerial function in entering into the Memorandum of Agreement on behalf of the Commission on Elections.2 Respondent submits that petitioner ultimately seeks the reformation of a contract, and such cause of action should have been brought before the trial courts.3 A petition for certiorari and prohibition lies when an officer gravely abuses his or her discretion. The Constitution provides for this Court's expanded power of judicial review "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Govemment."4 This proviso was borne out of our country's experience under Martial Law, to extend judicial review "to review political discretion that clearly breaches fundamental values and principles congealed in provisions of the Constitution."5 Under the present Constitution, this Court has the power to resolve controversies involving acts done by any government branch or instrumentality with grave abuse of discretion. 6 Procedurally, our Rules of Court provides for two (2) remedies in determining the existence of any grave abuse of discretion pursuant to this Court's constitutional mandate: that is, the special civil actions for certiorari and prohibition under Rule 65. 7 A petition for certiorari may be filed "[w]hen any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction(.]"8 A petition for prohibition may be filed "[w]hen the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction[.]"9 Still, respondent's contention that he only exercised administrative functions 10 in relation to the Memorandum of Agreement fails to convince. Jurisprudence holds that the remedies of certiorari and prohibition have broader scope before this Court: With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial. quasi-judicial or ministerial .functions. This application is expressly authorized by the text of the second paragraph of Section 1, supra. Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nul1ify the acts of legislative and executive officials. Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances. 11 (Emphasis supplied, citations omitted) We recognize the need for a studied balance between complying with our duty under Article VIII, Section 1 of the Constitution and ensuring against acting as an advisory organ. We maintain our policy of judicial deference, but always vigilant against any grave abuse of discretion with its untold repercussions on fundamental rights. Procedural lapses pursuant to the Rules of Court12 cannot limit this Court's constitutional powers, including its duty to determine the existence of "grave abuse of discretion amounting to lack or excess of jurisdiction" by any governmental branch or instrumentality.13 This constitutional mandate does not qualify the nature of the action by a governmental branch or instrumentality; thus, limiting this to only judicial or quasi-judicial actions will be constitutionally suspect. To be sure, Article VIII, Section 1 does not do away with the policy of judicial deference. It cannot be read as license for active interference by this Court in the acts of other constitutional departments and government organs 14 since judicial review requires the existence of a justiciable case with a ripe and actual controversy.15 Further, the existence of "grave abuse of discretion" requires capriciousness, arbitrariness, and actions without legal or constitutional basis. 16 In my view, the Constitution itself has impliedly amended the Rules of Court, and it is time to expressly articulate this amendment to remove any occasion for misinterpretation. It is our constitutional mandate to protect the People against government's infringement of fundamental rights, including actions by the Commission on Elections. 17 II The Memorandum of Agreement refers to Section 7.3 of Republic Act No. 9006, otherwise known as the Fair Elections Act. This provision states that "[t]he COMELEC [Commission on Elections] may require national television and radio networks to sponsor at least three (3) national debates among presidential candidates and at least one (1) national debate among vice presidential candidates[.]" 18 Section 7 .3 clearly empowers the Commission on Elections acting as a constitutional commission-and not the Commission on Elections Chair--- to require networks to sponsor these debates. The alleged authority of the Chair was only "to create the Technical Working Group for the conduct of the presidential debate in connection with the May 9, 2016 election." The Commission on Elections Minute Resolution No. 15.0560 reads: 15-0560 IN THE MATTER OF THE CREATION OF THE TE[CHNICAL] [WORKING] GROUP FOR THE CONDUCT OF THE PRESIDENTIAL DEBATE PURSUANT TO REPUBLIC ACT NO. 9006, IN CONNECTION WITH THE MAY 9, 2016 ELECTIONS In view of Republic Act No. 9006, otherwise known as the "Fair Election Act'', which provides for the holding of free, orderly, honest, peaceful, and credible election through fair election practices, and Section 7.3 thereof, which provides that the Commission on Elections may require national television and radio networks to sponsor at least three (3) national debates among presidential candidates and at least one (1) among vice presidential candidates, the Commission RESOLVED, as its hereby RESOLVES, to authorize Chairman J. Andres D. Bautista to create the Technical Working Group for the conduct of the presidential debate in connection with the May 9, 2016 Elections, with representatives from the Offices of the Members of the Commission en banc. Let the Office of the (hairman implement this Resolution. SO ORDERED.19 (Emphasis in the original) Authority to create a technical working group does not equate to authority to enter into the assailed Memorandum of Agreement with the Lead Networks. Technical working groups often involve bringing together a pool of experts and representatives from the relevant interest groups to discuss ideas and proposals. This falls under the preparatory phase, not the executory stage. Members of a technical working group are not necessarily the same parties and signatories of any contract, memorandum, rules, or issuance resulting from their consultative meetings. By analogy, this Court can resolve to create a technical working group composed of trial court judges, among others, to aid its Special Committee in reviewing our Rules of Procedure, but it is still this Court, sitting En Banc, that will resolve to approve any recommended proposal by the group. 20 Even the Civil Code provides that "[i]f the agent contracts in the name of the principal, exceeding the scope of his [or her] authority, and the principal does not ratify the contract, it shall be void if the party with whom the agent contracted is aware of the limits of the powers granted by the principal[.]"21 There is no showing that a Commission on Elections resolution explicitly authorizing respondent to enter the Memorandum of Agreement was attached to the Agreement as to assure the parties of respondent's authority to sign on behalf of the Commission on Elections. There is also no showing that the Commission on Elections has resolved to approve or ratify the Memorandum of Agreement respondent signed. III The requirement under Rule 65 that there be no other plain, speedy, and adequate remedy in the ordinary course of law22 also exists. The debates pursuant to the Memorandum of Agreement have already been scheduled. Petitioner alleged that it was already denied the right to cover the February 21 , 2016 Presidential Debate by GMA 7, the first of the three (3) presidential debates to be organized in accordance with the Memorandum of Agreement. 23 While the Memorandum of Agreement includes an arbitration clause for dispute resolution, 24 the judiciary has the solemn duty in the allocation of constitutional boundaries and the resolution of conflicting claims on constitutional authority, thus: In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. . . . The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution[. ]25 IV The Petition raises very serious concerns about a fundamental constitutional right. The Constitution mandates that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."26 This proscription applies not only to legislations but even to governmental acts. 27 ABS-CBN v. Commission on Elections, 28 for example, involved respondent's Resolution approving the issuance of a restraining order for the petitioner to stop conducting exit surveys.29 This Court nullified the assailed Commission on Elections Resolution. 30 It held that "exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press."31 The evil sought to be prevented in the protection of free speech is especially grave during elections. In Osmeña v. Commission on Elections, 32 this Court mentioned how "discussion of public issues and debate on the qualifications of candidates in an election are essential to the proper functioning of the government established by our Constitution."33 Adiong v. Commission on Elections34 has explained the importance of protecting free speech that contributes to the web of information ensuring the meaningful exercise of our right of suffrage: We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.1âwphi1 We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.35 (Citations omitted) Freedom of speech is affected when government grants benefits to some media outlets, i.e. lead networks, while unreasonably denying the same privileges to the others. This has the effect of stifling speech especially when the actions of a government agency such as the Commission on Elections have the effect of endowing a monopoly in the market of free speech. In Diocese of Bacolod v. Commission on Elections, 36 we examined free speech in light of equality in opportunity and deliberative democracy: The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other hand, a complete guarantee must also take into consideration the effects It will have in a deliberative democracy. Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect of drowning out the speech and the messages of those in the minority. In a sense, social inequality does have its effect on the exercise and effect of the guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than those who have less. Those who espouse the more popular ideas will have better reception that the subversive and the dissenters of society. To be really heard and understood, the marginalized view normally undergoes its own degree of struggle.37 Here, respondent contends that entering into the Memorandum of Agreement does not trigger Article IX-C, Section 4 of the Constitution as this provision involves its coercive power, while the Memorandum of Agreement was consensual. 38 Moreover, the provision pertains to equal opportunity for candidates and not mass media entities: Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or –controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. 39 Article II, Section 24 of the Constitution states that "[t]he State recognizes the vital role of communication and information in nation building." Article III, Section 7 provides that "[t]he right of the people to information on matters of public concern shall be recognized." These provisions create a constitutional framework of opening all possible and available channels for expression to ensure that information on public matters have the widest reach. In this age of information technology, media has expanded from traditional print, radio, and television. Internet has sped data gathering and multiplied the types of output produced. The evolution of multimedia introduced packaging data into compact packets such as "infographics" and "memes." Many from this generation no longer listen to the radio or watch television, and instead are more used to live streaming videos online on their cellular phones or laptops. Social media newsfeeds allow for real-time posting of video excerpts or "screen caps," and engaging comments and reactions that stimulate public discussions on important public matters such as elections. Article IX-C, Section 4 on the Commission on Elections' power of supervision or regulation of media, communication, or information during election period is situated within this context. The Commission on Elections' power of supervision and regulation over media during election period should not be exercised in a way that constricts avenues for public discourse. V Freedom of expression is a fundamental and preferred right.40 Any governmental act in prior restraint of speech-that is, any "official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination"41-carries a heavy burden of unconstitutionality.42 Speech restraint regulation may also be either content-based, "based on the subject matter of the utterance or speech," or content-neutral, "merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards."43 The effect of government's mandate empowering lead networks from excluding other media is a prior restraint, albeit indirectly. The evil of prior restraint is not made less effective when a private corporation exercises it on behalf of government. In GMA Network, Inc. v. Commission on Elections, 44 this Court declared as unconstitutional Section 9(a) of Resolution No. 9615, as amended, 45 that interpreted the 120- and 180-minute airtime allocation for television and radio advertisements under Section 6 of the Fair Elections Act as total aggregate per candidate instead of per station as previously applied. A Concurring Opinion discussed free speech scrutiny against any kind of prior restraint: While the Commission on Elections does have the competence to interpret Section 6, it must do so without running afoul of the fundamental rights enshrined in our Constitution, especially of the guarantee of freedom of expression and the right to suffrage. *Not only must the Commission on Elections have the competence, it must also be cognizant of our doctrines in relation to any kind of prior restraint.* . . . . What Resolution No. 9615 does not take into consideration is that television and radio networks are not similarly situated. *The industry structure consists of network giants with tremendous bargaining powers that dwarf local community networks.* Thus, a candidate with only a total aggregate of 120/180 minutes of airtime allocation will choose a national network with greater audience coverage to reach more members of the electorate. Consequently, the big networks can dictate the price, which it can logically set at a higher price to translate to more profits. This is true in any setting especially in industries with high barriers to entry and where there are few participants with a high degree of market dominance. *Reducing the airtime simply results in a reduction of speech and not a reduction of expenses.* Resolution No. 9615 may result in local community television and radio networks not being chosen by candidates running for national offices. Hence, advertisement by those running for national office will generally be tailored for the national audience. This new aggregate time may, therefore, mean that local issues which national candidates should also address may not be the subject of wide-ranging discussions. . . . . Election regulations are not always content-neutral regulations, and even if they were, they do not necessarily carry a mantle of immunity from free speech scrutiny. The question always is whether the regulations are narrowly tailored so as to meet a significant governmental interest and so that there is a lesser risk of excluding ideas for a public dialogue. The scrutiny for regulations which restrict speech during elections should be greater considering that these exercises substantiate the important right to suffrage. Reducing airtime to extremely low levels reduce information to slogans and sound bites which may impoverish public dialogue. We know that lacking the enlightenment that comes with information and analysis makes the electorate's role to exact accountability from elected public officers a sham[.]46 (Emphasis supplied, citations omitted) Petitioner points out that "[r]espondent surrendered the [Commission on Elections'] bargaining position and rather than asking the Lead Networks for concessions to ensure broader participation of other media outlets, the [r]espondent granted them exclusive rights which they would have enjoyed only if they produced their own debates without [the Commission on Elections'] participation."47 Undoubtedly, respondent as Chair and without proper authorization from the Commission on Elections En Banc facilitated and endorsed a contract that favored lead networks at the expense of smaller internet-based media outlets like petitioner. His doing so magnified the standpoints of those arbitrarily considered as lead and weakened the expression of the point of view of others. Certainly, the laudable effort to inform the public on substantial issues in the upcoming elections should not be purchased at the cost of the fundamental freedoms of those with less capital. ACCORDINGLY, I vote to PARTIALLY GRANT the Petition. The respondent Andres D. Bautista, as Chair of the Commission on Elections, is directed to implement Part VI (C), paragraph 19 of the Memorandum of Agreement, which allows the debates to be shown or live-streamed unaltered in petitioner's and other websites subject to the copyright condition that the source is clearly indicated. MARVIC M.V.F. LEONEN Associate Justice Footnotes 1 Rollo, p. 183, Comment, citing Spouses Dacudao v. Secretary Gonzales, 701 Phil. 96, 108 (20 13) [Per J. Bersamin, En Banc]. 2 Id. 3 Id. at 183- 184. 4 CONST., art. VIII, sec. l. 5 See J. Leonen, Concurring Opinion in Belgica v. Ochoa, G.R. Nos. 208566, November 19, 2013, 710 SCRA I, 290 [Per J. Perlas-Bernabe, En Banc]. 6 Id. 7 Araullo v. Aquino III, G.R. Nos. 209287, July l, 2014, 728 SCRA 1, 71 [Per J. Bersamin, En Banc]. Chief Justice Sereno, Associate Justices Peralta, Villarama. Jr., Perez, Mendoza, and Reyes concurred. Senior Associate Justice Carpio wrote a Separate Opinion. Associate Justice Velasco joined Associate Justice Del Castillo's Separate Concurring and Dissenting Opinion. Associate Justice Brion wrote a Separate Opinion. Associate Justices Perlas-Bernabe and Leonen wrote Separate Concurring Opinions. Associate Justice Leonardo-De Castro took no part. In this Court's February 3, 2015 Resolution <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/209287.pdf> 8 [Per J. Bersamin, En Banc], the ponencia discussed: "The procedural challenges raised by the respondents, being a mere rehash of their earlier arguments herein, arc dismissed for being already passed upon in the assailed decision." See also Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>11 [Per J. Leon en, En Banc]. 8 RULES OF COURT, Rule 65, sec. 1. Emphasis supplied. 9 RULES OF COURT, Rule 65, sec. 2. Emphasis supplied. 10 Rollo, p. 183, Comment. 11 Araullo v. Aquino III, G.R. Nos. 209287, July 1, 2014, 728 SCRA 1, 74-75 [Per J. Bersamin, En Banc). 12 Rollo, pp. 183- 189, Comment. Respondent raises, among others, wrong remedy and failure to implead indispensable parties. 13 CONST., art. VIII, sec. 1. 14 See Angara v. Electoral Commission 63 Phil. 139, 157-159 (1936) [Per J. Laurel, En Banc]. 15 CONST., art. VIII, sec. l. 16 See J. Leonen, Concurring Opinion in Belgica v. Ochoa, G.R. Nos. 208566, November 19, 2013, 710 SCRA I, 290 [Per J. Perlas-Bernabe, En Banc]. 17 Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728. pdf> 12 [Per J. Leonen, En Banc]. 18 Rep. Act No. 9006 (2001), sec. 7.3. 19 Rollo, p. 200, Excerpt from the Minutes of the Regular En Banc Meeting of the Commission on Elections Held on July 29, 2015. 20 See for example, A.M. No. 08-8-7-SC (2016), The 2016 Revised Rules of Procedure for Small Claims Cases. 21 CIVIL CODE, art. 1898. 22 RULES OF COURT, Rule 65, secs. 1 and 2. 23 Rollo, p. 12, Petition for Certiorari and Prohibition with Prayer for a Preliminary Mandatory Injunction. 24 Id. at 43, Memorandum of Agreement, part XII. 2. 25 See Angara v. Electoral Commission, 63 Phil 139, 157 (1936) [Per J. Laurel). See also Araullo v. Aquino III, G.R. Nos. 209287, July I, 2014, 728 SCRA 1, 70-71 [Per J. Bersamin, En Banc). 26 CONST., art. III, sec. 4. 27 See Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> 32 [Per J, Leonen, En Banc] 28 380 Phil 780 (2000) (Per J. Panganiban, En Banc]. 29 Id. at 787. See also Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>32 [Per J, Leonen, En Banc] 30 ABS-CBN Broadcasting Corporation v. Commission on Elections, 380 Phil 780, 800 (2000) [Per J. Panganiban, En Banc]. 31 Id. at 787. 32 351 Phil 692 (1998) [Per J. Mendoza, En Banc]. 33 Id. at 719. 34 G.R. No. l03956, March 31, 1992, 207 SCRA 712 [Per J. Gutierrez, Jr., En Banc]. 35 Adiong v. Commission on Elections, GR. No. 103956, March 31, 1992, 207 SCRA 712, 716 (Per J. Gutierrez, Jr., En Banc]. See also Mutuc v. Commission on Elections, 146 Phil 798, 805-806 (1970) (Per J. Fernando, En Banc]. 36 G.R. No. 205728, January 21, 2015 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/january2015/205 728.pdf> [Per J, Leanen, En Banc]. 37 Id. at 62. 38 Rollo, p. 191, Comment, 39 CONST., art. IX-C, sec.4. 40 See Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> 41 [Per J, Leonen, En Banc], citing Reyes v. Bagatsing, 210 Phil 457, 475 (1983) [Per C.J. Fernando, En Banc]; Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715 and 717 [Per J. Gutierrez, Jr., En Banc]; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 151-A Phil 656, 676 (1973) [Per J. Makasiar, En Banc]. 41 Chavez v. Gonzales, 569 Phil 155, 203 (2008) [Per C.J. Puno, En Banc]. 42 See J. Leonen, Concurring Opinion in GMA Network, Inc. v. Commission on Elections, G.R. Nos. 205 357, September 2, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20 l4/september2014/205357_leonen.pdf> 2 [Per J. Peralta, En Banc], citing Iglesia ni Cristo v. Court of Appeals, 328 Phil 893, 928 (l996) [Per J. Puno, En Banc]; Social Weather Station v. Commission on Elections, 409 Phil 571, 584-585 (2001) [Per J. Mendoza, En Banc]. 43 Chavez v. Gonzales, 569 Phil 155, 203 (2008) [Per C.J. Puno, En Banc]. 44 GMA Network, Inc. v. Commission on Elections, G.R. Nos. 205357, September 2, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/septem ber2014/205357.pdf> [Per J. Peralta, En Banc]. 45 Id. at 45. 46 See J. Leonen, Concurring Opinion in GMA Network, Inc. v. Commission on Elections, G.R. Nos. 205357, September 2, 2014 <http://sc.judiciary.gov. ph/pdf/web/viewer.html?file=/jurisprudence/2014/september2014/205357_leonen.pdf> 8, 10-12 [Per J. Peralta, En Banc]. 47 Rollo, p. 12, Petition for Certiorari and Prohibition with Prayer for a Preliminary Mandatory Injunction. The Lawphil Project - Arellano Law Foundation