Republic of the Philippines


G.R. No. 168338             February 15, 2008

RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.

C O N C U R R I N G   and   D I S S E N T I N G   O P I N I O N S


I concur in the results of the majority opinion penned by Chief Justice Puno, but only insofar as the NTC aspect of the case is concerned.

The opinion of the Chief Justice末upon which this concurrence hinges末is to the effect that the warning issued by the NTC, by way of a press release, that the continuous airing or broadcast of the "Garci Tapes" is a violation of the Anti-Wiretapping Law, restricts the freedom of speech and of the press and constitutes a content-based prior restraint impermissible under the Constitution. The quality of impermissibility comes in owing to the convergence and combined effects of the following postulates, to wit: the warning was issued at the time when the "Garci Tapes" was newspaper headline and radio/TV primetime material; it was given by the agency empowered to issue, suspend, or altogether cancel the certificate of authority of owners or operators of radio or broadcast media; the chilling effect the warning has on media owners, operators, or practitioners; and facts are obtaining casting doubt on the proposition that airing the controversial tape would violate the anti-wiretapping law.

I also agree with the Chief Justice痴 observation that the prior restraining warning need not be embodied in a formal order or circular, it being sufficient that such warning was made by a government agency, NTC in this case, in the performance of its official duties. Press releases on a certain subject can rightfully be treated as statements of official position or policy, as the case may be, on such subject.

To me, the facts on record are sufficient to support a conclusion that the press release issued by NTC末with all the unmistakable threat embodied in it of a possible cancellation of licenses and/or the filing of criminal cases against erring media owners and practitioners末constitutes a clear instance of prior restraint. Not lost on this writer is the fact that five (5) days after it made the press release in question, NTC proceeded to issue jointly with the Kapisanan ng mga Broadcasters sa Pilipinas (KBP) another press release to clarify that the earlier one issued was not intended to limit or restrain press freedom. With the view I take of the situation, the very fact that the KBP agreed to come up with the joint press statement that "NTC did not issue any [Memorandum Circular] or order constituting a restraint of press freedom or censorship" tends to prove, rather than disprove, the threatening and chilling tone of its June 11, 2005 press release. If there was no prior restraint from the point of view of media, why was there a need to hold a dialogue with KBP and then issue a clarifying joint statement?

Moreover, the fact that media owners, operators, and practitioners appeared to have been frozen into inaction, not making any visible effort to challenge the validity of the NTC press statement, or at least join the petitioner in his battle for press freedom, can only lead to the conclusion that the chilling effect of the statement left them threatened.

The full ventilation of the issues in an oral argument would have been ideal, particularly so since TV and radio operators and owners opted not to intervene nor were asked to give their comment on the chilling effect of the NTC press statement. Nonetheless, I find the admissions in the pleadings and the attachments thereto to be more than sufficient to judiciously resolve this particular issue. The contents of the June 11, 2005 press release eloquently spoke for themselves. The NTC "warning" is in reality a threat to TV and radio station owners and operators not to air or broadcast the "Garci Tapes" in any of their programs. The four corners of the NTC痴 press statement unequivocally reveal that the "Garci Tapes" may not be authentic as they have yet to be duly authenticated. It is a statement of fact upon which the regulatory body predicated its warning that its airing or broadcast will constitute false or misleading dissemination of information that could result in the suspension or cancellation of their respective licenses or franchises. The press statement was more than a mere notice of a possible suspension. Its crafting and thrust made it more of a threat末a declaration by the regulatory body that the operators or owners should not air or broadcast the tapes. Otherwise, the menacing portion on suspension or cancellation of their franchises to operate TV/radio station will be implemented. Indeed, the very press statement speaks eloquently on the chilling effect on media. One has to consider likewise the fact that the warning was not made in an official NTC circular but in a press statement. The press statement was calculated to immediately inform the affected sectors, unlike the warning done in a circular which may not reach the intended recipients as fast.

In all, the NTC statement coupled with other circumstances convince this writer that there was indeed a chilling effect on the TV/radio owners, in particular, and media, in general.

While the Court has several pieces of evidence to fall back on and judiciously resolve the NTC press release issue, the situation is different with respect to the Department of Justice (DOJ) warning issue. What is at hand are mere allegations in the petition that, on June 8, 2005, respondent DOJ Secretary Raul Gonzales warned reporters in possession of copies of the compact disc containing the alleged "Garci" wiretapped conversation and those broadcasting or publishing its contents that they could be held liable under the Anti-Wiretapping Act, adding that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge of the crime committed or in whose presence the crime was being committed.1

There was no proof at all of the possible chilling effect that the alleged statements of DOJ Secretary Gonzales had on the reporters and media practitioners. The DOJ Secretary, as head of the prosecution arm of the government and lead administrator of the criminal justice system under the Administrative Code2 is, to be sure, impliedly empowered to issue reminders and warnings against violations of penal statutes. And it is a known fact that Secretary Gonzales had issued, and still issues, such kind of warnings. Whether or not he exceeded his mandate under premises is unclear. It is for this main reason that I found the prior-restraint issue in the DOJ aspect of the case not yet ripe for adjudication.

I, therefore, register my concurrence with the ponencia of Chief Justice Reynato S. Puno insofar as it nullifies the official statement made by respondent NTC on June 11, 2005, but dissent, with regrets, with respect to the nullification of the June 8, 2005 official statement of respondent Secretary of Justice.

Associate Justice


1 Rollo, pp. 8-9 & 59.

2 Sec. 1, Chapter I, Title III of Book IV.

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