J.A.B. Bulao & Associates

 CASE 2011-0123: DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-GENERALE VS. HON. RONALDO PUNO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND ALTER-EGO OF PRESIDENT GLORIA MACAPAGAL-ARROYO, AND ANYONE ACTING IN HIS STEAD AND ON BEHALF OF THE PRESIDENT OF THE PHILIPPINES, ARMED FORCES OF THE PHILIPPINES (AFP), OR ANY OF THEIR UNITS OPERATING IN THE AUTONOMOUS REGION IN MUSLIM MINDANAO (ARMM), AND PHILIPPINE        NATIONAL POLICE, OR ANY OF THEIR        UNITS OPERATING IN ARMM (G.R. NO. 190259, 07 JUNE 2011, ABAD, J.) SUBJECT: VALIDITY OF PROCLAMATION OF STATE OF EMERGENCY. (BRIEF TITLE: AMPATUAN VS. PUNO)

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SUBJECT: COURT WILL RESPECT PRESIDENT’S JUDGMENT UNLESS THERE IS GRAVE ABUSE OF DISCRETION

While it is true that the Court may inquire into the factual bases for the President’s exercise of the above power,^[1][18] it would generally defer to her judgment on the matter.  As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,^[2][19] it is clearly to the President that the Constitution entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless violence.  Unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President’s judgment.

. . . . . . . . .

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President’s actions.

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EN BANC

DATU ZALDY UY AMPATUAN,             G.R. No. 190259

ANSARUDDIN ADIONG, REGIE

SAHALI-GENERALE

Petitioners,                      Present:

                                                                     CORONA, C.J., 

                                                                     CARPIO,

                                                                     CARPIO MORALES,

                                                            VELASCO, JR.,

  NACHURA,

                                                            LEONARDO-DE CASTRO,

– versus –                                              BRION,

  PERALTA,

  BERSAMIN,

 DELCASTILLO,

  ABAD,

  VILLARAMA, JR.,

  PEREZ,

  MENDOZA, and

  SERENO, JJ.

HON. RONALDO PUNO, in his capacity

as Secretary of the Department of Interior

and Local Government and alter-ego of

President Gloria Macapagal-Arroyo,

and anyone acting in his stead and on

behalf of the President of the Philippines,

ARMED FORCES OF THE PHILIPPINES

(AFP), or any of their units operating in

the Autonomous Region in Muslim

Mindanao (ARMM), and PHILIPPINE   

NATIONAL POLICE, or any of their      Promulgated:

units operating in ARMM,                       

                             Respondents.                    June 7, 2011                   

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DECISION

ABAD, J.:

          On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation 1946,^[1][1] placing “the Provinces of Maguindanao and Sultan Kudarat and the City ofCotabato under a state of emergency.” She directed the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) “to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence” in the named places.

Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO 273)^[2][2] “transferring” supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the Office of the President to the Department of Interior and Local Government (DILG).  But, due to issues raised over the terminology used in AO 273, the President issued Administrative Order 273-A (AO 273-A) amending the former, by “delegating” instead of “transferring” supervision of the ARMM to the DILG.^[3][3]

          Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,^[4][4] filed this petition for prohibition under Rule 65. They alleged that the proclamation and the orders empowered the DILG Secretary to take over ARMM’s operations and seize the regional government’s powers, in violation of the principle of local autonomy under Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The President gave the DILG Secretary the power to exercise, not merely administrative supervision, but control over the ARMM since the latter could suspend ARMM officials and replace them.^[5][5] 

          Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of emergency, especially in the Provinceof Sultan Kudaratand the City of Cotabato, where no critical violent incidents occurred. The deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the President’s emergency powers.^[6][6]  Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and that respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents,^[7][7] the Office of the Solicitor General (OSG) insisted that the President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore peace and order in subject places.^[8][8]  She issued the proclamation pursuant to her “calling out” power^[9][9] as Commander-in-Chief under the first sentence of Section 18, Article VII of the Constitution.  The determination of the need to exercise this power rests solely on her wisdom.^[10][10]  She must use her judgment based on intelligence reports and such best information as are available to her to call out the armed forces to suppress and prevent lawless violence wherever and whenever these reared their ugly heads.

On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers over the ARMM to the DILG Secretary who was her alter ego any way.  These orders did not authorize a take over of the ARMM.  They did not give him blanket authority to suspend or replace ARMM officials.^[11][11] The delegation was necessary to facilitate the investigation of the mass killings.^[12][12] Further, the assailed proclamation and administrative orders did not provide for the exercise of emergency powers.^[13][13] 

          Although normalcy has in the meantime returned to the places subject of this petition, it might be relevant to rule on the issues raised in this petition since some acts done pursuant to Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal cases that the government subsequently filed against those believed affected by such proclamation and orders.

The Issues Presented

The issues presented in this case are:

1.       Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded ARMM Organic Act;

2.       Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City; and

3.       Whether or not the President had factual bases for her actions.   

The Rulings of the Court

We dismiss the petition.

One.  The claim of petitioners that the subject proclamation and administrative orders violate the principle of local autonomy is anchored on the allegation that, through them, the President authorized the DILG Secretary to take over the operations of the ARMM and assume direct governmental powers over the region.

But, in the first place, the DILG Secretary did not take over control of the powers of the ARMM.  After law enforcement agents took respondent Governor of ARMM into custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on succession found in Article VII, Section 12,^[14][14] of RA 9054.  In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor.^[15][15]  In short, the DILG Secretary did not take over the administration or operations of the ARMM.

Two.  Petitioners contend that the President unlawfully exercised emergency powers when she ordered the deployment of AFP and PNP personnel in the places mentioned in the proclamation.^[16][16]  But such deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places mentioned.  And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers.  The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President.  She did not need a congressional authority to exercise the same.

Three.  The President’s call on the armed forces to prevent or suppress lawless violence springs from the power vested in her under Section 18,Article VII of the Constitution, which provides.^[17][17]

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x

While it is true that the Court may inquire into the factual bases for the President’s exercise of the above power,^[18][18] it would generally defer to her judgment on the matter.  As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,^[19][19] it is clearly to the President that the Constitution entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless violence.  Unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President’s judgment. Thus, the Court said:

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts.  Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. x x x.^[20][20] 

          Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and CotabatoCity, as well as the President’s exercise of the “calling out” power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the take over of the entire ARMM by the DILG Secretary had no basis too.^[21][21]

But, apart from the fact that there was no such take over to begin with, the OSG also clearly explained the factual bases for the President’s decision to call out the armed forces, as follows:

The Ampatuan and Mangudadatu clans are prominent families engaged in the political control of Maguindanao. It is also a known fact that both families have an arsenal of armed followers who hold elective positions in various parts of the ARMM and the rest of Mindanao.

Considering the fact that the principal victims of the brutal bloodshed are members of the Mangudadatu family and the main perpetrators of the brutal killings are members and followers of the Ampatuan family, both the military and police had to prepare for and prevent reported retaliatory actions from the Mangudadatu clan and additional offensive measures from the Ampatuan clan.

x x x x

The Ampatuan forces are estimated to be approximately two thousand four hundred (2,400) persons, equipped with about two thousand (2,000) firearms, about four hundred (400) of which have been accounted for. x x x

As for the Mangudadatus, they have an estimated one thousand eight hundred (1,800) personnel, with about two hundred (200) firearms. x x x

Apart from their own personal forces, both clans have Special Civilian Auxiliary Army (SCAA) personnel who support them: about five hundred (500) for the Ampatuans and three hundred (300) for the Mangudadatus.

What could be worse than the armed clash of two warring clans and their armed supporters, especially in light of intelligence reports on the potential involvement of rebel armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu Andal Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall worsen the age-old territorial dispute between the said RAG and the Ampatuan family.

x x x x

On the other hand, RAG faction which is based in Sultan Kudarat was reported to have received three million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for the procurement of ammunition. The said faction is a force to reckon with because the group is well capable of launching a series of violent activities to divert the attention of the people and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu family. The Cotabato-based faction has the strength of about five hundred (500) persons and three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has the strength of about four hundred (400) persons and three hundred (300) firearms and was reported to be moving towards Maguindanao to support the Mangudadatu clan in its armed fight against the Ampatuans.^[22][22]

          In other words, the imminence of violence and anarchy at the time the President issued Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned.  Progress reports also indicated that there was movement in these places of both high-powered firearms and armed men sympathetic to the two clans.^[23][23]  Thus, to pacify the people’s fears and stabilize the situation, the President had to take preventive action.  She called out the armed forces to control the proliferation of loose firearms and dismantle the armed groups that continuously threatened the peace and security in the affected places.

          Notably, the present administration of President Benigno Aquino III has not withdrawn the declaration of a state of emergency under Proclamation 1946.  It has been reported^[24][24] that the declaration would not be lifted soon because there is still a need to disband private armies and confiscate loose firearms. Apparently, the presence of troops in those places is still necessary to ease fear and tension among the citizenry and prevent and suppress any violence that may still erupt, despite the passage of more than a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President’s actions.

          WHEREFORE, the petition is DISMISSED for lack of merit.

          SO ORDERED.          

ROBERTO A. ABAD

                                                              Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

      ANTONIO T. CARPIO              CONCHITA CARPIO MORALES    

  Associate Justice                                               Associate Justice

PRESBITERO J. VELASCO, JR.     ANTONIO EDUARDO B. NACHURA

               Associate Justice                                     Associate Justice

TERESITA J. LEONARDO-DE CASTRO       ARTURO D. BRION

                     Associate Justice                                 Associate Justice

       DIOSDADO M. PERALTA                     LUCAS P. BERSAMIN

                 Associate Justice                                      Associate Justice        

 MARIANO C. DEL CASTILLO             MARTIN S. VILLARAMA, JR.

              Associate Justice                                     Associate Justice

   JOSE PORTUGAL PEREZ                            JOSE CATRAL MENDOZA

             Associate Justice                                                 Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA

          Chief Justice

CASE  2011-0122: RODOLFO N. REGALA VS. FEDERICO P. CARIN (G.R. NO. 188715, 6 APRIL 2011, CARPIO MORALES, J.) SUBJECT: QUASI DELICT; MORAL DAMAGES; NOMINAL DAMAGES. (BRIEF TITLE: REGALA VS. CARIN)

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SUBJECT:  MORAL DAMAGES MUST BE SHOWN TO BE THE PROXIMATE RESULT OF WRONGFUL ACT.

In prayers for moral damages, however, recovery is more an exception rather than the rule.  Moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person.  To be entitled to such an award, the claimant must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any of the cases listed in Articles 2219^[19] and 2220^[20] of the Civil Code. Moreover, the damages must be shown to be the proximate result of a wrongful act or omission.  The claimant must thus establish the factual basis of the damages and its causal tie with the acts of the defendant. 

SUBJECT: WHAT TO PROVE TO MERIT AN AWARD OF MORAL DAMAGES

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.^[21]

SUBJECT: MALICE IS A CRUCIAL ELEMENT IN MORAL DAMAGES. WHAT IS MALICE?

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.^[27] While the Court harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondent’s property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

SUBJECT: NOMINAL DAMAGES IS ADJUDICATED IN ORDER THAT ONE’S RIGHT WHICH HAS BEEN VIOLATED MAY BE VINDICATED.

Petitioner, however, cannot steer clear from any liability whatsoever. Respondent and his family’s rights to the peaceful enjoyment of their property have, at the very least, been inconvenienced from the incident borne of petitioner’s construction work. Any pecuniary loss or damage suffered by respondent cannot be established as the records are bereft of any factual evidence to establish the same.  Nominal damages may thus be adjudicated in order that a right of the plaintiff, respondent herein, which has been violated or invaded by the defendant, petitioner herein, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.^[29]

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Republic of the Philippines

Supreme Court

Baguio City

THIRD DIVISION

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

D E C I S I O N

CARPIO MORALES, J.:

          Assailed via this petition for review of petitioner Rodolfo N. Regala is the May 26, 2009 Decision^[1] of the Court of Appeals which affirmed with modification the May 29, 2006 Decision^[2] of the Regional Trial Court (RTC) of Las Piñas City, Br. 255 in Civil Case No. LP-99-0058, ordering petitioner to pay respondent Federico P. Carin moral and exemplary damages and attorney’s fees.

Petitioner and respondent are adjacent neighbors at Spirig Street, BF Resort Village, Las Piñas City.  When petitioner decided to renovate his one storey residence by constructing a second floor, he under the guise of merely building an extension to his residence, approached respondent sometime in May 1998 for permission to bore a hole through a perimeter wall shared by both their respective properties, to which respondent verbally consented on condition that petitioner would clean the area affected by the work.

          As earlier indicated, petitioner’s real intention was to build a second floor, in fact with a terrace atop the dividing wall.  In the course of the construction of the second floor, respondent and his wife Marietta suffered from the dust and dirt which fell on their property.  As petitioner failed to address the problem to respondent’s satisfaction, respondent filed a letter-complaint^[3] with the Office of the City Engineer and Building Official of Las Piñas City on June 9, 1998.

In his letter-complaint, respondent related that, despite the lack of a building permit for the construction of a second floor, petitioner had demolished the dividing wall, failed to clean the debris falling therefrom, allowed his laborers to come in and out of his (respondent’s) property without permission by simply jumping over the wall, and trampled on his vegetable garden; and that despite his protestations, petitioner persisted in proceeding with the construction, he claiming to be the owner of the perimeter wall.  

Several “sumbongs”^[4] (complaints) were soon lodged by respondent before the Office of Barangay Talon Dos against petitioner for encroachment, rampant invasion of privacy and damages arising from the construction, and for illegal construction of scaffoldings inside his (respondent’s) property.

          As no satisfactory agreement was reached at the last barangay conciliation proceedings in December 1998, and petitioner having continued the construction work despite issuance of several stop-work notices from the City Engineer’s Office for lack of building permit, respondent filed on March 1999 a complaint^[5] for damages against petitioner before the RTC of Las Piñas City.

In his complaint, respondent alleged in the main that, instead of boring just one hole as agreed upon, petitioner demolished the whole length of the wall from top to bottom into five parts for the purpose of constructing a second floor with terrace;  and that debris and dust piled up on respondent’s property ruining his garden and forcing him to, among other things, shut some of the windows of his house.  Respondent thus prayed for the award of moral and exemplary damages.

Petitioner, denying respondent’s allegations, claimed in his Answer^[6] that he was the sole and exclusive owner of  the wall referred to as a perimeter wall, the same having been built within the confines of his property and being part and parcel of the house and lot package he purchased from the developer, BF Homes, Inc., in 1981;  that the issue of its ownership has never been raised by respondent or his predecessor;  and that securing the consent of respondent and his neighbors was a mere formality in compliance with the requirements of the Building Official to facilitate the issuance of a building permit, hence, it should not be taken to mean that he (petitioner) acknowledges respondent to be a co-owner of the wall. He added that he eventually secured the requisite building permit^[7] in March 1999 and had duly paid the administrative fine.^[8]

Further, petitioner, denying that a demolition of the whole length of the wall took place, claimed that he and his contractor’s laborers had been diligently cleaning respondent’s area after every day’s work until respondent arrogantly demanded the dismantling of the scaffoldings, and barred the workforce from, and threatening to shoot anyone entering the premises;  and that the complaint was instituted by respondent as leverage to force him to withdraw the criminal case for slander and light threats^[9] which he had earlier filed against respondent for uttering threats and obscenities against him in connection with the construction work.

At the trial, after respondent and his wife confirmed the material allegations of the complaint, petitioner took the witness stand and presented his witnesses.

Architect Antonio Punzalan III^[10] testified that he installed GI sheets to prevent debris from falling onto respondent’s property and had instructed his workers to clean the affected area after every work day at 5:00 p.m., but they were later barred by respondent from entering his property. 

Engineer Crisostomo Chan^[11] from the Office of the Building Official of Las Piñas City testified, among other things, on the circumstances surrounding the complaint for illegal construction filed by respondent and that a building permit was eventually issued to petitioner on March 15, 1999.

Engineer Sonia Haduca^[12] declared that upon a joint survey conducted on the properties of both petitioner and respondent in December 1998 to determine their exact boundaries, she found an encroachment by petitioner of six centimeters at the lower portion of the existing wall negligible, since the Land Survey Law permits an encroachment of up to ten centimeters.

By Decision of May 29, 2006, Branch 255 of the Las Piñas City RTC rendered judgment in favor of respondent whom it awarded moral damages in the sum of P100,000, exemplary damages of P100,000 and attorney’s fees of P50,000 plus costs of suit.^[13]

In finding for respondent, the trial court declared that, apart from the fact that petitioner knowingly commenced the renovation of his house without the requisite building permit from the City Engineer’s Office, he misrepresented to respondent his true intent of introducing renovations.  For, it found that instead of just boring a hole in the perimeter wall as originally proposed, petitioner divided the wall into several sections to serve as a foundation for his firewall (which ended up higher than the perimeter wall) and the second storey of his house.

The trial court further declared that respondent and his family had thus to contend with the noise, dust and debris occasioned by the construction, which petitioner and his work crew failed to address despite respondent’s protestations, by refusing to clean the mess or install the necessary safety devices.

Applying Article 2176 of the Civil Code on quasi-delicts, the trial court ruled that petitioner was at fault and negligent for failing to undertake sufficient safety measures to prevent inconvenience and damage to respondent to thus entitle respondent to moral and exemplary damages.

On appeal by petitioner, the Court of Appeals affirmed the trial court’s decision with modification by reducing the award of moral and exemplary damages to P50,000 and P25,000, respectively.  The appellate court anchored its affirmance on Article 19 of the New Civil Code which directs every person to, in the exercise of his rights and in the performance of his duties, act with justice, and observe honesty and good faith.

By Resolution^[14] of July 10, 2009, the appellate court denied petitioner’s motion for reconsideration as well as respondent’s prayer in his Comment that the original awards made by the trial court be restored. 

Hence, petitioner’s present petition faulting the appellate court in

Affirming with modification the decision of the trial court….considering the absence of any competent proof to warrant the grant of moral and exemplary damages as well as attorney’s fees.^[15]  (underscoring supplied)

Petitioner maintains that since moral and exemplary damages are compensatory in nature, being meant neither to punish nor enrich, the claimant must establish that not only did he sustain injury but also that the other party had acted in bad faith or was motivated by ill will.  To petitioner, respondents failed to discharge this burden.  He adds that the trial court did not delve into whether petitioner’s renovations were the primary cause of respondent’s claimed injuries, viz violation of privacy, sleepless nights and mental anguish, among other things, as it instead focused on the lack of a building permit as basis for the awards.

Rebutting the testimony of respondent’s wife as to the alleged unauthorized intrusion of petitioner’s workers into respondent’s property in order to erect scaffoldings, petitioner points out that such an undertaking would take a considerable length of time and could not have gone unnoticed had consent not been given by respondent.

Moreover, petitioner posits, if consent had truly been withheld, there was nothing to prevent respondent from dismantling or immediately removing the offending structures – a course of action he did not even attempt.

In his Comment^[16] to the petition, respondent quotes heavily from the appellate and trial court’s findings that fault and negligence attended petitioner’s renovation, thus justifying the award of damages. He goes on to reiterate his plea that the awards given by the trial court in its decision of May 29, 2006 should be reinstated.

The petition is partly impressed with merit.

The trial court’s award of moral and exemplary damages, as affirmed by the appellate court, was premised on the damage and suffering sustained by respondent arising from quasi-delict under Article 2176^[17] of the Civil Code.  Thus the trial court explained:

Indeed, there was fault or negligence on the part of the defendant when he did not provide sufficient safety measures to prevent causing a lot of inconvenience and disturbance to the plaintiff and his family. The evidence presented by the plaintiff regarding the dirt or debris, as well as the absence of devices or safety measures to prevent the same from falling inside plaintiff’s property, were duly established. It did not help the cause of the defendant that he made a lot of misrepresentations regarding the renovations on his house and he did not initially have a building permit for the same. In fact, it was only after the construction works were completed that the said permit was issued and upon payment of an administrative fine by the defendant.^[18]

In prayers for moral damages, however, recovery is more an exception rather than the rule.  Moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person.  To be entitled to such an award, the claimant must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any of the cases listed in Articles 2219^[19] and 2220^[20] of the Civil Code. Moreover, the damages must be shown to be the proximate result of a wrongful act or omission.  The claimant must thus establish the factual basis of the damages and its causal tie with the acts of the defendant. 

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.^[21]

In the present case, respondent failed to establish by clear and convincing evidence that the injuries he sustained were the proximate effect of petitioner’s act or omission. It thus becomes necessary to instead look into the manner by which petitioner carried out his renovations to determine whether this was directly responsible for any distress respondent may have suffered since the law requires that a wrongful or illegal act or omission must have preceded the damages sustained by the claimant.

It bears noting that petitioner was engaged in the lawful exercise of his property rights to introduce renovations to his abode. While he initially did not have a building permit and may have misrepresented his real intent when he initially sought respondent’s consent, the lack of the permit was inconsequential since it only rendered petitioner liable to administrative sanctions or penalties.

The testimony of petitioner and his witnesses, specifically Architect Punzalan, demonstrates that they had actually taken measures to prevent, or at the very least, minimize the damage to respondent’s property occasioned by the construction work. Architect Punzalan details how upon reaching an agreement with petitioner for the construction of the second floor, he (Punzalan) surveyed petitioner’s property based on the Transfer Certificate of Title (TCT) and Tax Declarations^[22] and found that the perimeter wall was within the confines of petitioner’s property; that he, together with petitioner, secured the consent of the neighbors (including respondent) prior to the start of the renovation as reflected in a Neighbor’s Consent^[23] dated June 12, 1998; before the construction began, he undertook measures to prevent debris from falling into respondent’s property such as the installation of GI sheet strainers, the construction of scaffoldings^[24] on respondent’s property, the instructions to his workers to clean the area before leaving at 5:00 p.m;^[25]  and that the workers conducted daily clean-up of respondent’s property with his consent, until animosity developed between the parties.^[26]

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.^[27] While the Court harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondent’s property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

Necessarily, the Court is not inclined to award exemplary damages.^[28]

Petitioner, however, cannot steer clear from any liability whatsoever. Respondent and his family’s rights to the peaceful enjoyment of their property have, at the very least, been inconvenienced from the incident borne of petitioner’s construction work. Any pecuniary loss or damage suffered by respondent cannot be established as the records are bereft of any factual evidence to establish the same.  Nominal damages may thus be adjudicated in order that a right of the plaintiff, respondent herein, which has been violated or invaded by the defendant, petitioner herein, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.^[29]

WHEREFORE, the petition is GRANTED. The May 26, 2009 Decision of the Court of Appeals is VACATED.  The Court orders petitioner to pay respondent the sum of P25,000 as nominal damages.

No costs.

SO ORDERED.        

                                       CONCHITA CARPIO MORALES

                                                         Associate Justice

WE CONCUR:

ATTESTATION

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                  CONCHITA CARPIO MORALES

                                      Associate Justice

                                   Chairperson

CERTIFICATION

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                     RENATO C. CORONA                                                                                                 Chief Justice

^[1]       Penned by Associate Justice Fernanda Lampas Peralta with the concurrence of Associate Justices       Andres B. Reyes, Jr. and Apolinario D. Bruselas, Jr., CA rollo, pp. 157-164.

^[2]       Records, pp. 579-602.

^[3]       Exhibit “B,” records, pp. 281-282.

^[4]      Id. at 9 and 284. 

^[5]       Docketed as Civil Case No. LP-99-0058, id. at 2-6.

^[6]       Id. at 21-28.

^[7]      Exhibit “21,” id. at 427.

^[8]      Vide Exhibit “22,” id. at 428.

^[9]       Criminal Case Nos. 43519-20 before the Metropolitan Trial Court of Las Piñas City, Br. 79.

^[10]     TSN, August 4, 16, 2004.

^[11]    TSN, September 27, 2004.

^[12]    TSN, October 13, 2004

^[13]     Records, p. 602.

^[14]    CA rollo, p. 187.

^[15]    Rollo, p. 32.

^[16]     Id. at 350-356.

^[17]     Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

^[18]     Records, p. 600.

^[19]     Article 2219. Moral damages may be recovered in the following and analogous cases:

(1)     A criminal offense resulting in physical injuries;

(2)     Quasi-delicts causing physical injuries; 

(3)     Seduction, abduction, rape or other lascivious acts;

(4)     Adultery or concubinage;

(5)     Illegal or arbitrary detention or arrest;

(6)     Illegal search;

(7)     Libel, slander or any other form of defamation;

(8)     Malicious prosecution;

(9)     Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.

^[20]    Article 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently and in bad faith.

^[21]     B. F. Metal (Corporation) v. Lomoton, G. R. No. 170813, April 16, 2008, 551 SCRA 618, 628-629 citing Philippine Telegraph & Telephone Corp. v. Court of Appeals, G. R. No. 139268, September 3, 2002, 388 SCRA 270, 276.

^[22]     Exhibit “11,” records, p. 413.

^[23]     Exhibit “7,” id. at 288.

^[24]    Exhibits “5” to “6,” id. at. 278.

^[25]    TSN, August 4, 2004, pp. 18-34.

^[26]    Id. at 35-38.

^[27]    Far East Bank and Trust Company v. Court of Appeals, G. R. No. 108164, 241 SCRA 671, 675.

^[28]     Philippine Telegraph & Telephone Corp. v. Court of Appeals, G. R. No. 139268, September 3, 2002, 388 SCRA 270, 277.

^[29]    Id. at 279.

CASE 2011-0121: RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL., (A.M. NO. 10-11-5-SC); RE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND FOR THE PEOPLE TO WITNESS THE “TRIAL OF THE DECADE” TO MAKE IT TRULY PUBLIC AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION (A.M. NO. 10-11-6-SC); RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF THE MAGUINDANAO MASSACRE TRIAL. (A.M. NO. 10-11-7-SC) (CARPIO-MORALES, J.) (14 JUNE 2011).

X======================== X

SUBJECT: WIN-WIN SITUATION

In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings.  Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.

. . . . . . . . . . . . . . . . . 

SUBJECT: RIGHT OF AN ACCUSED TO A FAIR TRIAL IS NOT INCOMPATIBLE TO A FREE PRESS

Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the “totality of circumstances” test, applied in People v. Teehankee, Jr.^[1][24] and Estrada v. Desierto,^[2][25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision.  Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. 

Moreover, an aggrieved party has ample legal remedies.  He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right.  As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary.  The trial court may likewise exercise its power of contempt and issue gag orders.  

X ============================ X

EN BANC

x—————————————————————————————-x

R E S O L U T I O N

CARPIO MORALES, J.:

          On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the most brutal killing of journalists in recent history, the tragic incident which came to be known as the “Maguindanao Massacre” spawned charges for 57 counts of murder and an additional charge of rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-09-162216-31, Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et al.  Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) ofQuezon City inside Camp Bagong Diwa inTaguigCity.

          Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,^[3][1] individual journalists^[4][2] from various media entities, and members of the academe^[5][3] filed a petition before this Court praying that live television and radio coverage of the trial in these criminal cases be allowed, recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and the use of devices.^[6][4]   The Court docketed the petition as A.M. No. 10-11-5-SC.

          In a related move, the National Press Club of the Philippines^[7][5] (NPC) and Alyansa ng Filipinong Mamamahayag^[8][6] (AFIMA) filed on November 22, 2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao    Massacre trial to relieve it of all other pending cases and assigned duties, and allow the installation inside the courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the television monitors outside the court.^[9][7]   The Court docketed the petition as A.M.     No. 10-11-6-SC.

          President Benigno S. Aquino III, by letter of November 22, 2010^[10][8]  addressed to Chief Justice Renato Corona, came out “in support of those who have petitioned [this Court] to permit television and radio broadcast of the trial.”   The President expressed “earnest hope that [this Court] will, within the many considerations that enter into such a historic deliberation,
attend to this petition with the dispatch, dispassion and humaneness, such a petition merits.”^[11][9]   The Court docketed the matter as A.M. No. 10-11-7-SC.  

          By separate Resolutions of November 23, 2010,^[12][10] the Court  consolidated A.M. No. 10-11-7-SC  with A.M. No. 10-11-5-SC.  The Court shall treat in a separate Resolution A.M. No. 10-11-6-SC.

          Meanwhile, various groups^[13][11] also sent to the Chief Justice their respective resolutions and statements bearing on these matters.

          The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC.  The President, through the Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply ofJanuary 18, 2011 andJanuary 20, 2011.  Ampatuan also filed a Rejoinder ofMarch 9, 2011. 

On Broadcasting the Trial of the Maguindanao Massacre Cases

          Petitioners seek the lifting of the absolute ban on live television and radio coverage of court proceedings.  They principally urge the Court to revisit the 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case^[14][12] and the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada^[15][13] which rulings, they contend, violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand when regulation is a viable alternative. 

          Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media coverage due to the gruesomeness of the crime, prominence of the accused, and the number of media personnel killed.  They inform that reporters are being frisked and searched for cameras, recorders, and cellular devices upon entry, and that under strict orders of the trial court against live broadcast coverage, the number of media practitioners allowed inside the courtroom has been limited to one reporter for each media institution.

          The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter^[16][14] to Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the proceedings of the Maguindanao Massacre cases.  Judge Solis-Reyes replied, however, that “matters concerning media coverage should be brought to the Court’s attention through appropriate motion.”^[17][15]   Hence, the present petitions which assert the exercise of the freedom of the press, right to information, right to a fair and public trial, right to assembly and to petition the government for redress of grievances, right of free access to courts, and freedom of association, subject to regulations to be issued by the Court.

          The Court partially GRANTS pro hac vice petitioners’ prayer for a live broadcast of the trial court proceedings, subject to the guidelines which shall be enumerated shortly.

          Putt’s Law^[18][16] states that “technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand.”  Indeed, members of this Court cannot strip their judicial robe and don the experts’ gown, so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom.

          A decade after Estrada and a score after Aquino, the Court is once again faced with the same task of striking that delicate balance between seemingly competing yet certainly complementary rights. 

          The indication of “serious risks” posed by live media coverage to the accused’s right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information.

          The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations. 

          In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings.  Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.

          The basic principle upheld in Aquino is firm ─ “[a] trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment[, and t]o so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated.”  The observation that “[m]assive intrusion of representatives of the news media into the trial itself can so alter and destroy the constitutionally necessary atmosphere and decorum” stands. 

The Court concluded in Aquino:

            Considering the prejudice it poses to the defendant’s right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.

            Accordingly, in order to protect the parties’ right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated.^[19][17]

          The Court had another unique opportunity in Estrada to revisit the question of live radio and television coverage of court proceedings in a criminal case.   It held that “[t]he propriety of granting or denying the instant petition involve[s] the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial.”  The Court disposed:

            The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay.

            WHEREFORE, the petition is DENIED.

            SO ORDERED.^[20][18]

          In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13, 2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for documentary purposes, under the following conditions:

          x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.^[21][19]

          Petitioners note that the 1965 case of Estes v. Texas^[22][20] which Aquino and Estrada heavily cited, was borne out of the dynamics of a jury system, where the considerations for the possible infringement of the impartiality of a jury, whose members are not necessarily schooled in the law, are different from that of a judge who is versed with the rules of evidence.  To petitioners,  Estes also does not represent the most contemporary position of the United States in the wake of latest jurisprudence^[23][21] and statistical figures revealing that as of 2007 all 50 states, except the District of Columbia, allow television coverage with varying degrees of openness.

          Other jurisdictions welcome the idea of media coverage.  Almost all the proceedings of United Kingdom’s Supreme Court are filmed, and sometimes broadcast.^[24][22]  The International Criminal Court broadcasts its proceedings via video streaming in the internet.^[25][23]

          On the media coverage’s influence on judges, counsels and witnesses, petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion.  They point out errors of generalization where the conclusion has been mostly supported by studies on American attitudes, as there has been no authoritative study on the particular matter dealing with Filipinos.

          Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the “totality of circumstances” test, applied in People v. Teehankee, Jr.^[26][24] and Estrada v. Desierto,^[27][25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision.  Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. 

          Moreover, an aggrieved party has ample legal remedies.  He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right.  As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary.  The trial court may likewise exercise its power of contempt and issue gag orders.  

          One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases – the private complainants/families of the victims and other witnesses – inside the courtroom.  On public trial, Estrada basically discusses:

            An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance.  A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago.  A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process.  In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.^[28][26] (underscoring supplied)

          Even before considering what is a “reasonable number of the public” who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families.  It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants.  It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each.

          The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough.  What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom.  Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial.

          In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the following guidelines toward addressing the concerns mentioned in Aquino and Estrada:  

(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting.

(b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to  carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. 

No selective or partial coverage shall be allowed.  No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court.      

(c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court.  No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings.  The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court.  The camera equipment should not produce or beam any distracting sound or light rays.  Signal lights or signs showing the equipment is operating should not be visible.  A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. 

The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment. 

(d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. 

The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches.  

If the premises outside the courtroom lack space for the set-up of the media entities’ facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. 

At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected or encrypted.

(e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court^[29][27] applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). 

The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both.

(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the day’s proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded.

(g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene.  Any commentary shall observe the sub judice rule and be subject to the contempt power of the court;

(h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court;

(i) The original audio-recording shall be deposited in theNationalMuseumand the Records Management and Archives Office for preservation and exhibition in accordance with law.

(j)  The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities. 

(k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines.  The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements.  It may conduct consultations with resource persons and experts in the field of information and communication technology.

(l)  All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines.

          Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context.  Technology per se has always been neutral.  It is the use and regulation thereof that need fine-tuning.  Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.

          WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines herein outlined.

          SO ORDERED. 

                                                CONCHITA CARPIO MORALES

                                                      Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE)

 RENATO C. CORONA

Chief Justice