PRIVACY OF COMMUNICATION

GAANAN v IAC
Case: whether or not telephone extension lines are covered by the term “devices” under RA 4200 or Anti-
Wiretapping Act
Brief facts:

 Direct assault case against Leonardo Laconico was filed by complainant Atty. Tito Pintor and his client
Manuel Montebon.
 The said complainants made a telephone call to Laconico to give their terms for withdrawal of their
complaint.
 That same morning, Laconico called Gaanan (a lawyer), to advise him regarding the settlement of his direct
assault case
 When Manuel Montebon called again, Laconico asked Gaanan to listen to the conversation through a
telephone extension (in the conversation, he asked for 8,000 as consideration for withdrawing the direct
assault case
 Laconico was instructed to give the money to Montebon’s wife. Laconico insisted that he should receive the
money himself. Laconico thereafter alerted the Philippine Constabulary
 When Montebon received the money, he was arrested by the Philippine Constabulary
 On the following day, Gaanan executed an affidavit stating that he indeed heard in the telephone
conversation that Montebon asked for 8,000
 Gaanan and Laconico are now both charged with violation of anti-wiretapping act
(the phrase “any other device or arrangement” under anti wiretapping act does not include extension lines)
The law refers to a “tap” of a wire or cable or the use of a “deviee or arrangement” for the purpose of secretly
overhearing, intercepting, or recording the communication. There must be either a physical interruption
through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or
record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone,
dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered
as “tapping” the wire or cable of a telephone line. The telephone extension in this case was not installed for
that purpose. It just happened to be there for ordinary office use.
(the term “device or arrangement” under RA 4200 should be interpreted to comprehend instruments of the same
or similar nature used to tap, intercept or record a telephone conversation, not an extension line)
Hence, the phrase “device or arrangement” in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is,
instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be presumed by the party or parties being overheard
because, by their very nature, they are not of common usage and their purpose is precisely for tapping,
intercepting or recording a telephone conversation.
(a person calling another should presume that there may be an extension line and there is a risk of third party
listening to the conversation)
An extension telephone is an instrument which is very common especially now when the extended unit does not
have to be connected by wire to the main telephone but can be moved from place to place within a radius of a
kilometer or more. A person should safely presume that the party he is calling at the other end of the line
probably has an extension teiephone and he runs the risk of a third party listening as in the case of a party
line or a telephone unit which shares its line with another.
(Senate Congressional Records show that extension telephone is not included and that the law is more
concerned with penalizing act of recording than the act of merely listening)
A perusal of the Senate Congressional Records will show that not only did our lawmakers not conteinplate the
inclusion of an extension telephone as a prohibited “device or arrangement” but of greater importance, they
were more concerned with penalizing the act of recording than the act of merely listening to a telephone
conversation.
(use of extension line not covered by RA 4200)
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
goyernment authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone
users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the
enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension
telephone is not among such devices or arrangements.
RAMIREZ v CA
Case: Ramirez filed case against Garcia for having allegedly vexed, insulted and humiliated her in a
“hostile and furious mood” and in a manner offensive to her dignity and personality,” contrary to
morals, good customs and public policy. In support of her claim, she submitted a transcript of their
conversation based on a tape recording made by her. In response, Garcia filed a case against Ramirez for
violation of RA 4200. Ramirez contends that the provision merely refers to the unauthorized taping of a
private conversation by a party other than those involved in the communication and that R.A. 4200
penalizes the taping of a “private communication,” not a “private conversation” and that consequently,
her act of secretly taping her conversation with private respondent was not illegal under the said act.
(RA 4200 made no distinction as to whether the party sought to be punished is a party other than or different
from those involved in the private communication, the statute’s intent is to penalize all persons unauthorized to
make such recording)
Section 1 of R.A. 4200 clearly and unequivocally makes it illegal for any person, not authorized by all the
parties to any private communication to secretly record such communication by means of a tape recorder. The
law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other
than or different from those involved in the private communication. The statute’s intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier “any.” Consequently, as
respondent Court of Appeals correctly concluded, “even a (person) privy to a communication who records his
private conversation with another without the knowledge of the latter (will) qualify as a violator” under this
provision of R.A. 4200.
(mere allegation that a private communication was secretly recorded would suffice to constitute offense under
RA 4200)
Second, the nature of the conversation is immaterial to a violation of the statute. The substance of the same
need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by means of the devices enumerated therein.
The mere allegation that an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed
out in his COMMENT before the respondent court: “Nowhere (in the said law) is it required that before one
can be regarded as a violator, the nature of the conversation, as well as its communication to a third person
should be professed.”
(“private conversation” is within the scope of the term “private communication”)
Finally, petitioner’s contention that the phrase “private communication” in Section 1 of R.A. 4200 does not
include “private conversations” narrows the ordinary meaning of the word “communication” to a point of
absurdity. The word communicate comes from the latin word communicare, meaning “to share or to impart.”
In its ordinary signification, communication connotes the act of sharing or imparting, as in a conversation, or
signifies the “process by which meanings or thoughts are shared between individuals through a common
system of symbols (as language signs or gestures)” These definitions are broad enough to include verbal or
non-verbal, written or expressive communications of “meanings or thoughts” which are likely to include the
emotionally—charged exchange, on February 22, 1988, between petitioner and private respondent, in the
privacy of the latter’s office. Any doubts about the legislative body’s meaning of the phrase “private
communication” are, furthermore, put to rest by the fact that the terms “conversation” and “communication”
were interchangeably used by Senator Tanada in his Explanatory Note to the bill.

ADIONG v COMELEC
Case : Adiong, a senatorial candidate, questions whether or not the COMELEC may prohibit the posting
of decals and stickers on“mobile” places, public or private, and limit their location or publication to the
authorized posting areas that it fixes as he, being a neophyte in the field of politics stands to suffer grave
and irreparable injury with this prohibition.
(the prohibition violates freedom of speech clause; all protections in Bill of Rights are important but freedom of
speech enjoys preferred freedom)
The prohibition unduly infringes on the citizen’s fundamental right of free speech enshrined in the Constitution
(Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in
this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom. All of the protections expressed in the Bill
of Rights are important but we have accorded to free speech the status of a preferred freedom.
(where significance of freedom of expression originates)
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the
indispensable condition of nearly every other freedom. It is difficult to imagine how the other provisions of
the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or
persuade is denied and taken away.
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and
that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and
public officials. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the
generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when
what may be curtailed is the dissemination of information to make more meaningful the equally vital right of
suffrage.
(posting of decals and stickers does not constitute clear and present danger to justify curtailment of freedom of
speech and expression)
The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any
substantial government interest. There is no clear public interest threatened by such activity so as to
justify the curtailment of the cherished citizen’s right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be
avoided must be so substantive as to justify a clamp over one’s mouth or a writing instrument to be stilled
(clear and present danger rule- only greatest abuses endangering permanent interests can give occasion for
permissible limitation on freedom of speech and expression)
For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not
doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided
and the evil to be curbed, which in other context might support legislation against attack on due process
grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain
orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger,
actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for
permissible limitation.
(prohibition violates freedom of expression of an individual to express his preference)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the
candidate or the political party. The regulation strikes at the freedom of an individual to express his preference
and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate
but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by
the owner, primarily his own and not of anybody else.
the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidaciesis not impaired by posting decals and stickers on cars and other private
vehicles)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other
moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes
crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate
is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread
out the number of decals and stickers is not as important as the right of the owner to freely express his choice
and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his
personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on “mobile” places whether public or private except in
the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the
Constitution

BAYAN v ERMITA
Case: assails BP 880 which requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. Petitioners argue that it curtails the choice of venue
and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. It also characterizes public assemblies without a
permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions
(right to peacably assemble is together with freedom of speech, of expression and of the press, which enjoys
primacy of constitutional protection)
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together
with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected.
(although the right to assemble is sacrosanct, it can still be regulated (under police power) so that it shall not be
injurious to the community or society)
It must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right
to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise
of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or society.
(BP 880 is not an absolute ban but merely a restriction)
B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place
and manner of the assemblies. This was adverted to in Osmeña v. Comelec, 288 SCRA 447 (1998), where the
Court referred to it as a “content-neutral” regulation of the time, place, and manner of holding public
assemblies. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies that would use public places. The reference to “lawful cause” does not make it content-based
because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to
protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public
assembly content based, since they can refer to any subject. The words “petitioning the government for redress
of grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in
the rally.

MUTUC v COMELEC
Case where Mutuc, a candidate for delegate to the Constitutional Convention assails the validity of
prohibition by the COMELEC against the use of taped jingles for campaign purposes.
(the prohibition constitutes censorship and is therefore an abridgment of free speech or free press)
In unequivocal language, the Constitution prohibits an abridgment of free speech or a free press. It has been
the constant holding that this preferred freedom calls all the more for the utmost respect when what may be
curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. The
Commission on Elections, in prohibiting the use of taped jingle for campaign purposes did, in effect, impose
censorship, an evil against which this constitutional right is directed. Nor could the Commission justify its
action by the assertion that petitioner, if he would not resort to taped jingle, would be free, either by himself or
through others, to use his mobile loudspeakers. Precisely, the constitutional guarantee is not to be emasculated
confining it to a speaker having his say, but not perpetuating what is uttered by him through tape or other
mechanical contrivances.
(the power of COMELECE with respect to enforcement and administration of laws relative to conduct of
elections is limited purely to administrative questions)
As a branch of the executive department—although—independent of the President—to which the Constitution
has given the "exclusive charge" of the enforcement and administration of all laws relative to the conduct of
elections, the power of decision of the Commission is limited to purely "administrative questions." It has been
the constant holding, as it could not have been otherwise, that the Commission cannot exercise any authority in
conflict with or outside of the law, and there is no higher law than the Constitution.

IN RE TONY VALENCIANO
Case: Valenciano reported that the basement of the Hall of Justice of Quezon City (QC) had been
converted into a Roman Catholic Chapel. He believed that such practice violated the constitutional
provision on the separation of Church and State and the constitutional prohibition against the
appropriation of public money or property for the benefit of a sect, church, denomination, or any other
system of religion.
(the state recognizes inherent right of people to have some form of belief system)
the State still recognizes the inherent right of the people to have some form of belief system, whether such may
be belief in a Supreme Being, a certain way of life, or even an outright rejection of religion. Our very own
Constitution recognizes the heterogeneity and religiosity of our people
(two aspects of religious profession and worship)
"The right to religious profession and worship has a two-fold aspect - freedom to believe and freedom to act on
one's beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that affect the public welfare." 24 Justice
Isagani A. Cruz explained these two (2) concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own
theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion;
acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the
immortality of his soul - in fact, cherish any religious conviction as he and he alone sees fit. However absurd
his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe
as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his
beliefs and he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so
becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all other
rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent
in protecting the general welfare. The inherent police power can be exercised to prevent religious practices
inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and
not merely for the purpose of evading the reasonable requirements or prohibitions of the law.
(allowing citizens to practice their religion does not constitute fusion of Church and State)
As pointed out by Judge Lutero, "the Roman Catholics express their worship through the holy mass and to stop
these would be tantamount to repressing the right to the free exercise of their religion. Our Muslim brethren,
who are government employees, are allowed to worship their Allah even during office hours inside their own
offices. The Seventh Day Adventists are exempted from rendering Saturday duty because their religion prohibits
them from working on a Saturday. Even Christians have been allowed to conduct their own bible studies in
their own offices. All these have been allowed in respect of the workers' right to the free exercise of their
religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and State.

Estrada v Escritor

(Bakitbanagtatag ng Free Exercise Clause and Establishment Clause? [Sa US itobessy])

“..In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence individual
religious beliefs and practices.”..
(Bakit may pake pa tayosa religion clauses ng US?)
“..The Court then turned to the religion clauses’ interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors to the
Philippine religion clauses, although we have significantly departed from the U.S. interpretation..”

2 STRAINS OF JURISPRUDENCE ON RELIGION CLAUSES(US):

I. Standard of Separation (Jeffersonian: wall of separation is meant to protect state from church)
a. Strict Separation

 believes that the Establishment Clause was meant to protect the state from the church

 the state’s hostility towards religion allows no interaction between the two

 an absolute barrier to formal interdependence of religion and state needs to be erected

 Religious institutions could not receive aid, whether direct or indirect, from the state, nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers

 Only the complete separation of religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a strict "wall of separation" is
necessary

b. Strict Neutrality/Separation

 believes that the "wall of separation" does not require the state to be their adversary

 the state must be neutral in its relations with groups of religious believers and non-believers

 State power is no more to be used so as to handicap religions than it is to favor them

 strict neutrality approach is not hostile to religion, but it is strict in holding that religion may not be
used as a basis for classification for purposes of governmental action, whether the action confers rights
or privileges or imposes duties or obligations

 Only secular criteria may be the basis of government action

 It does not permit, much less require, accommodation of secular programs to religious belief

II. Benevolent Neutrality/ Accomodation (wall of separation is meant to protect church from state)

 The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance
  The purpose of accommodations is to remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion

 As Justice Brennan explained, the "government may take religion into account…to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish."

“Philippines adheres to benevolent neutrality approach”

“..It is indubitable that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution..”

Cited Cases (US) Re: Free Exercise Clause

Sherbert v Verner:In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under
the law as her employment was terminated for refusal to work on Saturdays on religious grounds.

“..when a law of general application infringes religious exercise, albeit incidentally, the state interest sought to
be promoted must be so paramount and compelling as to override the free exercise claim..”

“..In this highly sensitive constitutional area(religious liberty), ‘only the gravest abuses, endangering
paramount interests, give occasion for permissible limitation..”

“..when government action burdens, even inadvertently, a sincerely held religious belief or practice, the state
must justify the burden by demonstrating that the law embodies a compelling interest, that no less restrictive
alternative exists, and that a religious exemption would impair the state’s ability to effectuate its compelling
interest..”

Employment Division, Oregon Department of Human Resources v Smith: individuals challenged the state’s
determination that their religious use of peyote, which resulted in their dismissal from employment, was
misconduct disqualifying them from receipt of unemployment compensation benefits

“..theright of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral
law of general applicability of the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)..”

“..even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal law.."
Cited Cases (US) Re: Free Exercise Clause

German v. Barangan, 135 SCRA 514, 517: “The 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. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified..”

Ebralinag v. The Division Superintendent of Schools: The case involved several Jehovah’s Witnesses who
were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic
pledge, in violation of the Administrative Code of 1987. In resolving the religious freedom issue, a unanimous
Court overturned an earlier ruling denying such exemption, using the "grave and imminent danger" test

Compelling State Interest (three-step process)

(TEST USED IN THIS CASE)

 If the plaintiff can show that a law or government practice inhibits the free exercise of his religious
beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that it is the least restrictive
means of achieving that objective.

 If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from
the law or practice at issue.

 In order to be protected, the claimant’s beliefs must be ‘sincere’, but they need not necessarily be
consistent, coherent, clearly articulated, or congruent with those of the claimant’s religious
denomination. ‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular
beliefs, however sincere and conscientious, do not suffice

“..On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent’s claimed religious belief and practice are beyond serious doubt…A look at the
evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override respondent’s fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its legitimate state objective is the least
intrusive means..”

(Pwedekaba ma exempt from application of penal laws on account of religion?)

“..Just because the law is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise
Clause. As stated by Justice O’Connor in her concurring opinion in Smith, "[t]here is nothing talismanic about
neutral laws of general applicability or general criminal prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws
aimed at religion..”
“..unlike other fundamental rights like the right to life, liberty or property, the Religion Clauses are stated in
absolute terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful order." Only
the right to free speech is comparable in its absolute grant. Given the unequivocal and unqualified grant
couched in the language, the Court cannot simply dismiss a claim of exemption based on the Free Exercise
Clause, solely on the premise that the law in question is a general criminal law..”

(Free exercise of religion clause – the most inalienable and sacred of human rights)
“..Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in
our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the
most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that
the state’s interest is important, because our Constitution itself holds the right to religious freedom sacred..”