SUPREME COURT DECISIONS

Search for www.chanrobles.com

PLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS

separate (concurring) opinion

PANGANIBAN, J.:

I think the basic issues in this case are:

A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/censor television shows?

B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its powers correctly and properly?

The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, and 121 and 128, for the reason that they allegedly constituted an "attack against another religion." The first involves doctrine; the second application.

A. EXTENT AND LIMIT OF MTRCBS POWERS

The statutory powers of the MTRCB are set forth in Sec. 3 of P.D. No. 1986. ¹cräläwvirtualibräry

In implementing P.D. No. 1986 the MTRCB issued its own Rules and Regulations. At issue in this case is Section 4 ² of such Rules.

On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and religion. ³cräläwvirtualibräry

Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression x x x by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship laws in the context of the constitutions guarantees of freedom of religion and of speech and expression."

Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals and religious institutions to evangelize, preach, promote, teach, and even prosedytize.

Religious Freedom A Cherished Right

FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of thought to a private, personal relationship between a mans conscience and his God, but it is subject to regulation when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious freedom will not stalemate the State and ipso facto render it incompetent in preserving the rights of others and in protecting the general welfare.

MTRCBs Power to Review and to Censor is Valid

SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB under P.D. No. 1986 has the basic initiatory authority and power 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 pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs and publicity materials. I regret I cannot go along with Mr. Justice Mendozas avante garde thesis that Section 3-c of P.D. No. 1986, from where the above-quoted words were taken, is "upon its face and as applied, unconstitutional." I note the extensive materials particularly from American cases, buttressing his cogent stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our country, particularly the totality of our cultural and religious milieu, is far different from that in America.

Petitioner INC contends that the MTRCBs authority extends only to non-religious video materials but not to religious programs, particularly those of INC, which it claims are neither "immoral" nor "indecent." This position presents more problems than solutions. For who will determine whether a given canned material is religious or not, and therefore whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which is constitutionally mandated to be neutral, continue to exercise the power to make such determination, rather than leave it up to the producer, maker or exhibitor of such material, who/which, because of vested interests would, in the normal course, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the censors quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon the matter x x x." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and values-eroding television shows and programs.

In Gonzales vs. Kalaw Katigbak ⁴ and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr., ⁵ this Court early on acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or television set." ⁶ And these audiences have less opportunity to cogitate, analyze and reject the utterances, compared to readers of printed materials. ⁷ It is precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the welfare of the young" ⁸ that I vote for the retention of the States power of review and prohibition via the MTRCB. High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising, unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit, are inapplicable in our factual context and time.

MTRCB Must Use Constitutional Standard

THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it can do so ONLY if it exercises its powers of review and prohibition according to a standard and/or a limit.

I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. No. 1986 should be struck down as an unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and present danger rule" which is eloquently explained by JJ., Kapunan, Puno and Mendoza (and which explanation I shall not repeat here).

Having said that, may I respectfully point out however that there is an even more appropriate standard in the Philippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people." On the other hand, when the question is whether the material being reviewed "encourages the commission of violence or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be applied as the standard in place of the "dangerous tendency" rule.

Just a word edgewise about cultural values. Our cultural ideals and core values of galang, pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala, maka-Diyos, maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and what we are because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious expression runs counter to such core values, serious questions have to be raised about the ultimate redeeming worth of such expression. An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . . In brief, I am in agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and governed by the policy of laissez faire.

Validity of MTRCBs Internal Rule

FOURTH. Anent the validity of Sec. 4 of the Boards Rules and Regulation authorizing MTRCB to prohibit the showing of materials "which clearly constitute an attack against any race, creed or religion x x x," I agree with Mr. Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibit the exhibition of shows that offend another race or religion." Indeed, where it can be shown that there is a clear and present danger that a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of public welfare, why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and less praiseworthy."

I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a religion, whereas Art. 201 merely penalizes those who exhibit programs which "offend" such religion. Subject to changing the word "attack" with the more accurate "offend." I believe Section 4 of the Rules can stand.

In sum, I respectfully submit (1) that P.D. No. 1986 is constitutional, subject to the substitution (or interpretation) of the words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec. 4 of the Boards Rules would be likewise valid, provided the words "constitute an attack" are changed with "offend."

B. WAS THE BANNING OF THE IGLESIA PROGRAMS PROPER?

We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. No. 1986 in prohibiting the public telecasting of the Iglesia program? In short, did the INC series "offend" a religion? Juridically stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to public welfare? [Note: I advisedly used both the "values" and "clear and present" standards in framing the question because the INC program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a "crime."]

Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and Protestant religions.

In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification for banning the showing of any material.

In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a species of the freedom of speech on the say-so of anyone not even of the MTRCB. Paraphrasing People vs. Fernando, ⁹ the disputable presumption (which is of statutory origin; that official duties have been regularly performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to state the factual and legal bases of their conclusions and judicial dispositions, with more reason must quasi-judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest priority and amplest protection."

FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion thru the use of the proper standards that the tapes in question offended another religion. I vote to GRANT the petition insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the INC to show its pretaped programs without first submitting them for review by the MTRCB.