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concurring and dissenting opinion

KAPUNAN, J.:

While I concur in the result of the majoritys decision reversing that of the Court of Appeals insofar as it set aside the action of respondent MTRCB x-rating petitioners TV Program Series Nos. 115, 119 and 121, with due respect, I cannot agree with its opinion that respondent Board of Review for Motion Pictures and Television (now MTRCB) has the power to review petitioners TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the Constitutions guarantee of freedom of religion, ¹ and of speech and expression, ² and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section 3 of P.D. 1986 which provides as follows:

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

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export.

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

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence and pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

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

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are subjudice in nature.

Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures and TV programs.

The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various media, including pulpit or podium, print, television film, and the electronic mail.

The broad latitude of freedom afforded by the free exercise clause is a historic outgrowth of our countrys twin colonial experiences: our forefathers aversion against the Spanish colonial governments interference with religious belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the American Constitutional Convention. These two poles conjoined to place the individual conscience beyond the coercive power of government. Involving as it does the relationship of man to his Creator, respect for the inviolability of conscience lay at the core of the free exercise clauses in our Constitutions from 1935 to 1987. ³cräläwvirtualibräry

It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious belief is generally insulated from state action, and state interference with such belief is allowed only in extreme cases.

Free exercise encompasses all shades of expression of religious belief. It includes the right to preach, proselyte and to perform other similar functions. ⁴ As oftentimes these aspects of the free exercise clause fall within areas affected by government regulation, the importance of religious freedom is such that the state must make special provisions to relieve religious liberty from restrictions imposed by generally legitimate government regulations. ⁵ Commenting on religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing ⁶ that:

[O]n 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. No verbal formula, no sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights. ⁷cräläwvirtualibräry

Even before film and television achieved the power and influence it has gained in the last few decades, the U.S. Supreme Court, in the case of Burtsyn v. Wilson, ⁸ conceded that movies were a significant medium for the dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression." ⁹ The U.S. Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the fact that films are "designed to entertain as well as to inform," ¹⁰ thus, recognizing that motion pictures fell within the sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland ¹¹ held that:

The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censors business is to censor, there is an inherent danger that he may be less responsive than a court part of an independent branch of government to constitutionally protected interests in free expression. ¹²cräläwvirtualibräry

In American Bible Society v. City of Manila, ¹³ this Court held that any restraint on the right to disseminate religious information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent." ¹⁴ Affirming the use of this "clear and present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent." ¹⁵cräläwvirtualibräry

Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil rights, the essence of all that has been said and written about the subject is that only those interests of the highest order and those not otherwise served can overbalance claims to free exercise of religion. ¹⁶ In a highly sensitive constitutional area, only the gravest situation endangering paramount governmental interests give occasion for permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient justification for infringing religious liberty." ¹⁷cräläwvirtualibräry

It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of religious expression in film or television by requiring the submission of the video tapes of petitioners religious program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest, it would only burden such fundamental right like the free exercise of religion by the least intrusive means possible. ¹⁸ There is no demonstration here of any sufficient state interest to justify the infringement.

In any case, petitioners religious programs, which in their very essence and characterization are the exercise of religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession of faith that binds and elevates man to his Creator" ¹⁹ will involve pornography, excessive violence or danger to national security.

Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive, and that the phrase "contrary to law" should, in the Solicitor Generals words in behalf of respondents, be construed "in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that offend any race or religion." ²⁰ Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986 in any case explicitly furnish the standard left out in the enumeration when it provides:

SECTION 4. GOVERNING STANDARD. a) The BOARD shall judge the motion pictures and television programs and publicity materials submitted to it for review, using as standard contemporary Filipino cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law and good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not limited to:

xxx xxx xxx

vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from individual members thereof; x x x.

There are several reasons why I cannot agree with respondent Boards contention that it may add the standard "attack against any religion" among those enumerated by P.D. 1986. While the laws enumeration is concededly not exclusive, inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter.

In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation. ²¹ It cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of "attack against any religion" among the enumerated standards was intentional and part of the evolving process of fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses the manifest intention of the law-making authority to do away with the standard. This view is supported by the Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case came up before his office for review, that:

[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D. 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards for censorship, to wit: immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with dangerous tendency to encourage the commission of violence, or a wrong as determined by the Board, applying contemporary Filipino cultural values as standard. As stated, the intention of the Board to subject the INCs television program to previewing and censorship is prompted by the fact that its religious program makes mention of beliefs and practices of other religion. On the face of the law itself, there can conceivably be no basis for censorship of said program by the Board as much as the alleged reason cited by the Board does not appear to be within the contemplation of the standards of censorship set by law. ²²cräläwvirtualibräry

Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 201 ²³ of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D. 1986 clearly treats with an altogether different matter prior restraint and censorship. The two laws stand at opposite poles in the continuum of regulation and punishment.

Thus, the censors cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards utilized in determining those forms of expression that fall within the area of protected speech or expression, and because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal statutes, the former prevents the speech or expression from entering the marketplace of ideas. ²⁴ That is exactly the effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious speech or expression utilizing the medium of television.

It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before the courts, the most recent having been the Flag Salute cases. ²⁵ However, a regulation neutral on its face poses free exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones which relate to its political structure." ²⁶ Facially neutral standards are a facet of prevailing consensus. The old flag salute cases are testaments to the natural preference for the prevailing political and social morality over the religious liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above the protests of the other religions, sects and denominations. ²⁷ Applying "contemporary Filipino standards" and values (the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally protected area and potentially would simply provide the Board with a veiled excuse for clamping down against unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free exercise provision in our Constitution not only insulates religion against governmental power, but when taken together with the Establishment clause, affords protection to religious minorities by preventing the use of that power in imposing the majoritys will.

We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may arise such that the tenets of one individual may seem the "rankest error" to his neighbor. ²⁸ In the process of persuading others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification. However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors. ²⁹ Even if the exercise of the liberties protected by the speech, expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent sanctions for proven violations of laws, rather than inflict prior restraints on religious expression.

Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and political rights of persons. It is our courts which determine whether or not certain forms of speech and expression have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society that they should be allowed to flourish unobstructed and unmolested. ³⁰cräläwvirtualibräry

The majority opinion professes fealty to freedom of religion which, it openly admits, has been accorded a preferred status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech." ³¹ The majority then adds pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this heavy burden, its acts of censorship will be struck down. It failed in the case at bar." ³²cräläwvirtualibräry

And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because "with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the law." ³³ The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz ³⁴ wherein it was held that:

As has been said, the performance of the duty of determining whether a publication contains printed matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every intendment of the law is in favor of the correctness of his action. The rule is (and we go only to those cases coming from the United States Supreme Court and pertaining to the United States Postmaster-General), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong.

I share with Justice Mendozas view that the majoritys pronouncement would in effect place on the producer or exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is wrong and the court will not interfere with the Boards decision unless it can be clearly shown that it is wrong, following the ruling in Sotto vs. Ruiz.

The majoritys ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and supplants a judicial standard for determining constitutionally protected speech and expression with the censors standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the Board might possibly object to prior to submission to that body and thereby obtains the censors nod, or 2) submits the Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged litigation. Either case constitutes grievous assault on the freedom of speech and religion.

The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioners TV programs. In that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of Posts. Petitioners programs which are televised in the exercise of freedom of worship cannot be placed in the category of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who determines, without judicial safeguards, whether or not to allow the exercise of such freedom.

The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema to a society which places high significance to these values.

WHEREFORE, premises considered, I vote to grant the petition.