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THE PEOPLE OF THE PHILIPPINES, AND THE FAMILY WHEREFORE, the Court finding the Motion to
BANK AND TRUST COMPANY (Formerly Family Savings Quash filed by the accused TENABLE,
Bank), petitioners, vs. hereby DISMISSES the above-entitled cases.
Silvestre L. Tagarao for private respondent. and b) the order dated August 26, 1982, denying the separate
motions for reconsideration of the order dated July 30, 1982
filed by petitioner People of the Philippines (People) and
petitioner Family Bank and Trust Company (Family), which
MEDIALDEA, J.: reads:
This special civil action for certiorari seeks to set aside and AFTER a careful and thorough study of the
nullify the orders of respondent Judge Benigno M. Puno in allegations in the Motions for Reconsideration,
Criminal Cases No. 3485, 3486, 3487, 3488, 3489 and 3490, dated August 3, and 13, 1982, filed by the
all entitled "People of the Philippines v. Hernani Palillo" filed Prosecution, together with the Opposition dated
before the then Court of First Instance of Quezon, Branch II August 12, 1982 and the Supplemental
with station at the City of Lucena, to wit: a) the order dated Opposition dated August 21, l982, filed by the
July 30, 1982, granting respondent Palillo's Motion to Dismiss Defense, the Court finds the said motion(s)
dated July 30, 1982 and ordering the dismissal of the without merit and, therefore, denies the same.
aforementioned cases, the dispositive portion of which reads:
SO ORDERED. (p. 28, Rollo)
Contrary to law. (pp. 40-41, Rollo) The counsel for the accused filed an Opposition to the Motion
to Withdraw on the ground that the filing of so-called proper
Criminal Case No. 3490: informations with the Court of First Instance of Quezon is not a
legal ground to withdraw the above-entitled case, considering
That on or about the 28th day of January, 1980, that the City Court of Lucena had already acquired jurisdiction
in the City of Lucena, Province of Quezon, over the case and the accused had already been arraigned
Philippines, and within the jurisdiction of this and had pleaded not guilty to the charge.
Honorable Court, the said accused, did then
and there wilfully, unlawfully and feloniously On April 16, 1982, the City Court issued an order, dismissing
issue and make out Check No. AA37-54334 Criminal Case No. 10323, for lack of jurisdiction.
dated January 28, 1980, in the amount of
P85,000.00, drawn against the Consolidated Subsequently, upon motion of private respondent through
Bank and Trust Company, but when said check counsel, Criminal Cases Nos. 3485, 3486, 3487, 3488, 3489
was presented for payment the same was and 3490 pending in various branches of the Court of First
dishonored and was refused payment for the Instance of Quezon, were consolidated for trial before Branch
reason that the drawer thereof, the herein II of the aforesaid CFI, presided by the respondent judge.
accused, did not have sufficient funds in said
bank; and that thereafter, despite notice by the On July 28, 1982, private respondent was again arraigned,
complainant herein, the Family Savings Bank, now before the Court of First Instance of Quezon, Branch II
Lucena Branch, Lucena City, the accused failed and she entered a plea of "Not Guilty" in all aforesaid six (6)
and refused to deposit with said bank the criminal cases.
After entering her plea of "Not Guilty," private respondent filed direct control and supervision of the City Fiscal in the six (6)
on the same day a Motion to Dismiss the aforementioned six criminal cases before the CFI of Quezon.
(6) criminal cases on the ground of double jeopardy, claiming
that the City Court of Lucena City had already acquired On August 16, 1982, with the conformity of the City Fiscal, the
jurisdiction over Criminal Case No. 10323 and that, therefore, private prosecutor through the above-named counsel filed its
the dismissal of the last mentioned case, the very case own Motion for Reconsideration of the respondent judge's
bearing the same causes of action as the six (6) criminal order of dismissal.
cases, constituted a dismissal on the merits.
On August 23, 1982, private respondent Palillo through
On July 29, 1982, the City Fiscal filed an Opposition to the counsel filed a supplemental opposition to the prosecution s
aforesaid Motion to Dismiss, citing as grounds therefore that motions for reconsideration.
the private respondent had not been placed in jeopardy before
the City Court since she was arraigned under a defective On August 26, 1982, respondent Judge issued the second
information before the latter Court and such court had no questioned order, denying both the City Fiscal and the private
jurisdiction over the offense charged in Criminal Case No. prosecutor's motions for reconsideration for lack of merit.
10323.
Hence, this petition which the City Fiscal and the private
On July 30, 1982 the respondent CFI judge issued the first prosecutor jointly filed directly with this Court.
questioned order granting private respondent's motion to
dismiss all the six (6) criminal informations filed against her. In his comment, the Solicitor General recommended that the
questioned orders of the respondent judge be reversed and
On August 5, l982, the complainant through Assistant City set aside and that the case be remanded to the court a quo for
Fiscal Elviro Q. Quitain of Lucena City filed a motion for trial.
reconsideration of the said order.
On the other hand, the counsel for the herein private
On August 12,1982, private respondent filed an Opposition to respondent, after four (4) motions for extension of time, failed
the City Fiscal's motion for reconsideration. to file his own comment.
In the meantime, the A.M. Perez and Associates Law Office, Accordingly, an March 2, 1983, this Court issued a resolution
through Atty. Dante T. Ramos, filed its formal appearance on dispensing with the private respondent's comment, giving due
August 12, 1982 as private prosecutor in behalf of the Family course to the petition and declaring the case submitted for
Bank and Trust Company (herein private petitioner) under the decision.
In support of their petition, petitioners contend that, in issuing The main issue in this petition is whether or not the dismissal
the orders complained of, respondent judge acted with grave of Criminal Case No. 10323 pending before the City Court of
abuse of discretion and/or in excess or lack of jurisdiction Lucena, Branch I, for lack of jurisdiction and the subsequent
because: filing of other informations (Criminal Cases Nos. 3485-3490)
with the respondent Court against the same private
a) The respondent judge was without jurisdiction to inquire respondent for the same offenses had placed her in double
into, much less reverse the City Court's finding contained in its jeopardy.
order dated April 16, 1982 that the City Court had no
jurisdiction over Criminal Case No. 10323, the latter order A careful scrutiny of the circumstances of these cases would
having long become final and constituted res judicata between clearly show that no double jeopardy exists. It is a settled rule
the parties thereto. that to raise the defense of double jeopardy, the following
requisites must concur: (1) a first jeopardy must have attached
b) The respondent judge had no jurisdiction to pass upon the prior to the second; (2) the first jeopardy must have been
issue of jurisdiction of the City Court over Criminal Case No. validly terminated; and (3) the second jeopardy must be for the
10323, such competence being in law reserved only to the same offense, or the second offense include or is necessarily
Supreme Court. included in the offense charged in the first information, or is an
attempt to commit the same or is a frustration thereof (People
c) The respondent judge's holding that the City Court had v. City Court of Manila, G.R. No. L-36528, September 24,
concurrent jurisdiction with Court of First Instance of Lucena 1987, 154 SCRA 175; Ada v. Virola, G.R. Nos. 82346-47, April
over the offense charged under Criminal Case No. 10323 and 17, 1989, 172 SCRA 336).
that the dismissal of said case thereby precludes further
prosecution of the accused under the six (6) cases before the And legal jeopardy attaches only: (a) upon a valid indictment;
Court of First Instance of Quezon finds no valid support in law (b) before a competent court; (c) after arraignment; (d) a valid
and jurisprudence. plea having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the
d) The orders complained of effectively denies the prosecution accused (Tangan v. Republic of the Philippines, G.R. No.
of its day in Court and of its right to due process. 73963, Nov. 5, l987, 155 SCRA 435).
e) The respondent judge gravely abused its discretion in not As correctly found by the City Court of Lucena, jurisdiction
finding that the accused, herein, respondent PALILLO, has over the offenses charged in Criminal Case No. 10323
waived the defense of double jeopardy and is thus estopped exclusively pertains to the Court of First Instance of Quezon.
from setting up said defense (p. 78, Rollo).
Section 1 of Batas Pambansa Blg. 22 provides for a penalty of 10323. Hence, the City Court of Lucena correctly dismissed
imprisonment of not less than thirty days but not more than said case and since the dismissal was based on lack of
one (1) year or by a fine of not less than but not more than jurisdiction, it did not constitute a bar to the prosecution of the
double the amount of the check which fine shall in no case same offense in the proper court. (U.S. v. Bernardo, G.R. No.
exceed Two Hundred Thousand Pesos, or both such fine or 6027, 19 Phil. 265; Cristobal v. People, G.R. No. L-1542, 84
imprisonment at the discretion of the court. Phil. 473)
The Judiciary Reorganization Act of 1948 provides that the It is noteworthy that the Motion to Withdraw Criminal Case No.
municipal judges in the capitals of provinces and sub- 10323 and the subsequent filing of the six (6) criminal
provinces and judges of city courts shall have like jurisdiction informations with the Court of First Instance were made in
as the Court of First Instance to try parties charged with an compliance with the directive of the Ministry of Justice. Clearly,
offense committed within their respective jurisdictions, in which these were designed to correct the error committed with
the penalty provided by law does not exceed prision respect to the filing of the information in Criminal Case No.
correccional or imprisonment for not more than six years or 10323. Nevertheless, the Court finds that the error does not
fine not exceeding six thousand pesos or both . . . (Section constitute substantial prejudice to private respondent
87). considering that no evidence yet has ever been presented and
the private respondent was never exposed to trial. Thus, the
In determining whether a criminal case is within the jurisdiction proceedings in Criminal Cases Nos. 3485-3490 were as
of a Municipal or City Court, the maximum punishment that though the accused was being tried and prosecuted under an
might be imposed is controlling, and the fact that the minimum original information. The constitutional mandate against putting
punishment is within its jurisdiction is immaterial. a person twice in jeopardy of punishment for the same offense
is to protect the accused from going through a trial a second
Taking into account the amount of each check which is time. But, since the first proceeding was dismissed for lack of
P85,000.00 upon which the court may base the alternative jurisdiction and the State was not afforded the right to present
imposable penalty of fine pursuant to BP. Blg. 22, as alleged in its own evidence to substantiate the allegations in the
the information filed in the City Court, it is clear that the latter information, there is no second jeopardy to speak of. Contrary
has no jurisdiction to try the case considering that the to the stand of the private respondent in its motion to quash
imposable fine will be P85,000.00 at the very least up to the Criminal Cases Nos. 3485-3490, the City Court's order of
amount of P170,000.00 which is way beyond the maximum dismissal cannot be considered as a judgment of acquittal
amount of P6,000.00 from which the City Court may validly since, as already pointed out, the said court has no jurisdiction
draw concurrent jurisdiction over the case. It is this alternative to try the case.
penalty of fine and not the penalty of imprisonment which
divests the City Court of its jurisdiction to try Criminal Case No.
Moreover, the assailed order of dismissal of Criminal Cases constitute a proper basis for the claim of double
Nos. 3485-3490 unjustly deprives the State of its right to due jeopardy. We have likewise held that a trial
process. court may not arbitrarily deny a timely and well-
founded motion of the prosecution for
This Court had occasion to rule in People v. Pablo, G.R. No. L- reconsideration of an order of dismissal or
37271, June 25, 1980 (98 SCRA 289) that the court should acquittal and that such arbitrary refusal to
bear in mind that it is the guardian of the rights of the accused reopen the case will be set aside to give the
as well as of the people at large, and that it should not unduly State its day in court and an opportunity to
force the accused to go to trial, or for light cause, jeopardize prove the offense charged against the accused
the rights or interest of the public. The rights of the offended and to prevent miscarriage of justice, especially
parties, who usually take active part in the trial, are equally when no substantial right of the accused would
entitled to the protection offered by the courts to the public at be prejudiced thereby. (People v. Navarro, etc.,
large in the trial of a criminal case. (People v. Declare, G.R. 63 SCRA 264).
No. 64362, February 9, 1989, 170 SCRA 142)
We disagree, however, with the petitioner's contention that
In the earlier case of Silvestre v. Military Commission No. 21, respondent judge had no jurisdiction to pass upon the issue of
G.R. No. L-46366, March 8, 1978, 82 SCRA 19, We ruled that: jurisdiction of the City Court over Criminal Case No. 10323.
Respondent Court obviously has the competence to pass
The State is entitled to due process in criminal upon the issue of the city court's jurisdiction over the first
cases, that is, it must be given the opportunity information. It should be pointed out that in order to resolve
to present its evidence in support of the charge. whether or not an accused has been placed twice in jeopardy,
The Court has always accorded this right to the the court should first determine whether or not a first jeopardy
prosecution and, where the right had been had legally attached. As already discussed before, a legal
denied, had promptly annulled the offending jeopardy attaches only if the court which first tried the offense
court action. We have heretofore held that a is a court of competent jurisdiction. And since the herein
purely capricious dismissal of an information private respondent interposed the defense of double jeopardy
deprives the State of fair opportunity to on the basis that the city court had validly acquired jurisdiction
prosecute and convict, it denies the prosecution over Criminal Case No. 10323, it is necessary for the
its day in court. For this reason, it is a dismissal respondent court to pass upon the said issue.
(in reality an acquittal) without due process,
and, therefore null and void. Such dismissal is Anent the contention of petitioner that private respondent had
invalid for lack of a fundamental pre-requisite, waived the defense of double jeopardy when she failed to
that is, due process, and, consequently, will not plead the said defense at the time of arraignment, suffice it to
say that the promulgation of the 1985 Rules on Criminal Narvasa, C.J., Cruz, Griño-Aquino and Bellosillo, JJ., concur.
Procedure had effectively granted to an accused the right to
invoke the defense of double jeopardy even after arraignment. G.R. No. L-45129 March 6, 1987
Thus, Sec. 8, Rule 117 of the New Rules provides:
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
Sec. 8. Failure to move to quash or to allege THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding
any ground Judge of the Court of First Instance of Batangas, Second Branch, and
therefore. –– The failure of the accused to MANUEL OPULENCIA, respondents.
assert any ground of a motion to quash before
he pleads to the complaint or information, either
because he did not file a motion to quash, or
failed to allege the same in said motion shall be FELICIANO, J.:
deemed a waiver with the grounds of a motion
to quash except the grounds of no offense In this petition for certiorari and mandamus, the People of the Philippines
charged, lack of jurisdiction over the offense seek to set aside the orders of the respondent Judge of the Court of First
Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8
charged, extinction, of the offense or November 1976, respectively, quashing an information for theft filed against
penalty and jeopardy, as provided for in private respondent Manuel Opulencia on the ground of double jeopardy and
paragraphs (a), (b), (f) and (h) of Section 3 of denying the petitioner's motion for reconsideration.
this Rule. (emphasis supplied).
On 1 February 1975, members of the Batangas City Police together with
personnel of the Batangas Electric Light System, equipped with a search
Notwithstanding the foregoing disquisitions with respect to the warrant issued by a city judge of Batangas City, searched and examined the
procedural issues raised, this petition warrants the issuance of premises of the Opulencia Carpena Ice Plant and Cold Storage owned and
the writ of certiorari prayed for, there being no double jeopardy operated by the private respondent Manuel Opulencia. The police
in this case. discovered that electric wiring, devices and contraptions had been installed,
without the necessary authority from the city government, and
"architecturally concealed inside the walls of the building" 1owned by the private
ACCORDINGLY, the petition is GRANTED and the assailed respondent. These electric devices and contraptions were, in the allegation of the petitioner
orders are hereby REVERSED and SET ASIDE. These cases "designed purposely to lower or decrease the readings of electric current consumption in the
electric meter of the said electric [ice and cold storage] plant." 2 During the
are hereby REMANDED to the appropriate Regional Trial
subsequent investigation, Manuel Opulencia admitted in a written
Court of Quezon to which Criminal Cases Nos. 3485, 3486, statement that he had caused the installation of the electrical devices
3487, 3488, 3489 and 3490 are assigned to proceed with the "in order to lower or decrease the readings of his electric meter. 3
trial on the merits against private respondent.
On 24 November 1975, an Assistant City Fiscal of Batangas City filed before
SO ORDERED. the City Court of Batangas City an information against Manuel Opulencia for
violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of prescribes two months from the time of discovery thereof, and it appearing
this ordinance was, under its terms, punishable by a fine "ranging from Five further that the information was filed by the fiscal more than nine months
Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not after discovery of the offense charged in February 1975.
exceed thirty (30) days, or both, at the discretion of the court." 4 This
information reads as follows: Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas
City filed before the Court of First Instance of Batangas, Branch 11, another
The undersigned, Assistant City Fiscal, accuses Manuel information against Manuel Opulencia, this time for theft of electric power
Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. under Article 308 in relation to Article 309, paragraph (1), of the Revised
6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. Penal Code. This information read as follows:
1974, with damage to the City Government of Batangas,
and penalized by the said ordinance, committed as The undersigned Acting City Fiscal accuses Manuel
follows: Opulencia y Lat of the crime of theft, defined and
penalized by Article 308, in relation to Article 309,
That from November, 1974 to February, 1975 at Batangas paragraph (1) of the Revised Penal Code, committed as
City, Philippines and within the jurisdiction of this follows:
Honorable Court, the above-named accused, with intent to
defraud the City Government of Batangas, without proper That on, during, and between the month of November,
authorization from any lawful and/or permit from the proper 1974, and the 21st day of February, 1975, at Kumintang,
authorities, did then and there wilfully, unlawfully and lbaba, Batangas City, Philippines, and within the
feloniously make unauthorized installations of electric jurisdiction of this Honorable Court, the above-named
wirings and devices to lower or decrease the consumption accused, with intent of gain and without the knowledge
of electric fluid at the Opulencia Ice Plant situated at and consent of the Batangas Electric Light System, did
Kumintang, Ibaba, this city and as a result of such then and there, wilfully, unlawfully and feloniously take,
unathorized installations of electric wirings and devices steal and appropriate electric current valued in the total
made by the accused, the City Government of Batangas amount of FORTY ONE THOUSAND, SIXTY TWO
was damaged and prejudiced in the total amount of PESOS AND SIXTEEN CENTAVOS (P41,062.16)
FORTY ONE THOUSAND, SIXTY TWO PESOS AND Philippine Currency, to the damage and prejudice of the
SIXTEEN CENTAVOS (P41,062.16) Philippine currency, said Batangas Electric Light System, owned and operated
covering the period from November 1974 to February, by the City Government of Batangas, in the
1975, to the damage and prejudice of the City Government aforementioned sum of P41,062.16.
of Batangas in the aforestated amount of P41,062.16,
Philippine currency.
The above information was docketed as Criminal Case No. 266 before the
Court of First Instance of Batangas, Branch II. Before he could be arraigned
The accused Manuel Opulencia pleaded not guilty to the above information. thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976,
On 2 February 1976, he filed a motion to dismiss the information upon the alleging that he had been previously acquitted of the offense charged in the
grounds that the crime there charged had already prescribed and that the second information and that the filing thereof was violative of his
civil indemnity there sought to be recovered was beyond the jurisdiction of constitutional right against double jeopardy. By Order dated 16 August 1976,
the Batangas City Court to award. In an order dated 6 April 1976, the the respondent Judge granted the accused's Motion to Quash and ordered
Batangas City Court granted the motion to dismiss on the ground of the case dismissed. The gist of this Order is set forth in the following
prescription, it appearing that the offense charged was a light felony which paragraphs:
The only question here is whether the dismissal of the first A Motion for Reconsideration of the above-quoted Order filed by the
case can be properly pleaded by the accused in the petitioner was denied by the respondent Judge in an Order dated 18
motion to quash. November 1976.
In the first paragraph of the earlier information, it alleges On 1 December 1976, the present Petition for certiorari and mandamus was
that the prosecution "accuses Manuel Opulencia y Lat of filed in this Court by the Acting City Fiscal of Batangas City on behalf of the
violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 People.
Article II, Title IV of Ordinance No. 1, s. 1974, with damage
to the City Government of Batangas, etc. " (Emphasis The basic premise of the petitioner's position is that the constitutional
supplied). The first case, as it appears, was not simply one protection against double jeopardy is protection against a second or later
of illegal electrical connections. It also covered an amount jeopardy of conviction for the same offense. The petitioner stresses that the
of P41,062.16 which the accused, in effect, allegedly with first information filed before the City Court of Batangas City was one for
intent to defraud, deprived the city government of unlawful or unauthorized installation of electrical wiring and devices, acts
Batangas. If the charge had meant illegal electric which were in violation of an ordinance of the City Government of Batangas.
installations only, it could have alleged illegal connections Only two elements are needed to constitute an offense under this City
which were done at one instance on a particular date Ordinance: (1) that there was such an installation; and (2) no authority
between November, 1974, to February 21, 1975. But as therefor had been obtained from the Superintendent of the Batangas City
the information states "that from November, 1974 to Electrical System or the District Engineer. The petitioner urges that the
February 1975 at Batangas City, Philippines, and within relevant terms of the City Ordinance — which read as follows:
the jurisdiction of this Honorable Court, the above-named
accused with intent to defraud the City Government of
Batangas, without proper authorization from any lawful Section 3.-Connection and Installation
and/or permit from the proper authorities, did then and
there wilfully, unlawfully and feloniously make (a) x x x
unauthorized installations of electric wirings and
devices, etc." (Emphasis supplied), it was meant to include (b) The work and installation in the houses and building
the P 41,062.16 which the accused had, in effect, and their connection with the Electrical System shall be
defrauded the city government. The information could not done either by the employee of the system duly authorized
have meant that from November 1974 to 21 February by its Superintendent or by persons adept in the matter
1975, he had daily committed unlawful installations. duly authorized by the District Engineer. Applicants for
electrical service permitting the works of installation or
When, therefore, he was arraigned and he faced the connection with the system to be undertaken by the
indictment before the City Court, he had already been persons not duly authorized therefor shall be considered
exposed, or he felt he was exposed to consequences of guilty of violation of the ordinance.
what allegedly happened between November 1974 to
February 21, 1975 which had allegedly resulted in would show that:
defrauding the City of Batangas in the amount of P
41,062.16. (Emphases and parentheses in the original)
The principal purpose for (sic) such a provision is to
ensure that electrical installations on residences or
buildings be done by persons duly authorized or adept in
the matter, to avoid fires and accidents due to faulty 3. Under-reading of electrical consumption; and
electrical wirings. It is primarily a regulatory measure and
not intended to punish or curb theft of electric fluid which is 4. By tightening the screw of the rotary blade to slow down
already covered by the Revised Penal Code. 5 the rotation of the same. 7
The gist of the offense under the City Ordinance, the petitioner's argument The petitioner concludes that:
continues, is the installing of electric wiring and devices without authority
from the proper officials of the city government. To constitute an offense
under the city ordinance, it is not essential to establish any mens rea on the The unauthorized installation punished by the ordinance
part of the offender generally speaking, nor, more specifically, an intent to [of Batangas City] is not the same as theft of electricity
appropriate and steal electric fluid. [under the Revised Penal Code]; that the second offense
is not an attempt to commit the first or a frustration
thereof and that the second offense is not necessarily
In contrast, the petitioner goes on, the offense of theft under Article 308 of included in the offense charged in the first inforrnation 8
the Revised Penal Code filed before the Court of First Instance of Batangas
in Criminal Case No. 266 has quite different essential elements. These
elements are: The above arguments made by the petitioner are of course correct. This is
clear both from the express terms of the constitutional provision involved —
which reads as follows:
1. That personal property be taken;
No person shall be twice put in jeopardy of punishment for
2. That the personal property (taken) belongs to another; the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall
3. That the taking be done with intent of gain; constitute a bar to another prosecution for the same act.
(Emphasis supplied; Article IV (22), 1973 Constitution) 9
4. That the taking be done without the consent of the
owner; and and from our case law on this point. 10 The basic difficulty with the petitioner's
position is that it must be examined, not under the terms of the first sentence of Article IV
(22) of the 1973 Constitution, but rather under the second sentence of the same
5. That the taking be accomplished without violence section. The first sentence of Article IV (22) sets forth the general rule: the constitutional
6
against or intimidation of persons or force upon things. protection against double jeopardy is not available where the second prosecution is for an
offense that is different from the offense charged in the first or prior prosecution, although
both the first and second offenses may be based upon the same act or set of acts. The
The petitioner also alleges, correctly, in our view, that theft of electricity can second sentence of Article IV (22) embodies an exception to the general proposition: the
be effected even without illegal or unauthorized installations of any kind by, constitutional protection, against double jeopardy is available although the prior offense
for instance, any of the following means: charged under an ordinance be different from the offense charged subsequently under a
national statute such as the Revised Penal Code, provided that both offenses spring from
the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11
1. Turning back the dials of the electric meter;
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of
2. Fixing the electric meter in such a manner that it will not the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No.
register the actual electrical consumption; 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the
City of Iloilo. The information charged him with having "wilfully, unlawfully
and feloniously drive[n] and operate[d]" an automobile — "recklessly and III of the Constitution, ordains that "no person shall be
without reasonable caution thereby endangering other vehicles and twice put in jeopardy of punishment for the same offense."
pedestrians passing in said street." Three months later, Yap was again (Emphasis in the original) The second sentence of said
charged in Criminal Case No. 16443 of the same Municipal Court, this time clause provides that "if an act is punishable by a law and
with serious physical injuries through reckless imprudence. The information an ordinance, conviction or acquittal under either shall
charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 constitute a bar to another prosecution for the same
as amended by Republic Act No. 587) committed by driving and operating act." Thus, the first sentence prohibits double jeopardy of
an automobile in a reckless and negligent manner and as a result thereof punishment for the same offense, whereas the second
inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the contemplates double jeopardy of punishment for the same
second information upon the ground that it placed him twice in jeopardy of act. Under the first sentence, one may be twice put in
punishment for the same act. This motion was denied by the respondent jeopardy of punishment of the same act provided that he is
municipal judge. Meantime, another municipal judge had acquitted Yap in charged with different offenses, or the offense charged in
Criminal Case No. 16054. Yap then instituted a petition for certiorari in the one case is not included in or does not include, the crime
Court of First Instance of Iloilo to set aside the order of the respondent charged in the other case. The second sentence applies,
municipal judge. The Court of First Instance of Iloilo having reversed the even if the offenses charged are not the same, owing to
respondent municipal judge and having directed him to desist from the fact that one constitutes a violation of an ordinance
continuing with Criminal Case No. 16443, the respondent Judge brought the and the other a violation of a statute. If the two charges
case to the Supreme Court for review on appeal. In affirming the decision are based on one and the same act conviction or acquittal
appealed from and holding that the constitutional protection against double under either the law or the ordinance shall bar a
jeopardy was available to petitioner Yap, then Associate Justice and later prosecution under the other. 12 Incidentally, such conviction or
Chief Justice Roberto Concepcion wrote: acquittal is not indispensable to sustain the plea of double jeopardy of
punishment for the same offense. So long as jeopardy has attached
under one of the informations charging said offense, the defense may
To begin with, the crime of damage to property through be availed of in the other case involving the same offense, even if
reckless driving — with which Diaz stood charged in the there has been neither conviction nor acquittal in either case.
court of first instance — is a violation of the Revised Penal
Code (third paragraph of Article 365), not the Automobile The issue in the case at bar hinges, therefore, on whether
Law (Act No. 3992, as amended by Republic Act No. 587). or not, under the information in case No. 16443, petitioner
Hence, Diaz was not twice accused of a violation of could — if he failed to plead double jeopardy — be
the same law. Secondly, reckless driving and certain convicted of the same act charged in case No. 16054, in
crimes committed through reckless driving are punishable which he has already been acquitted. The information in
under different provisions of said Automobile Law. Hence case No. 16054 alleges, substantially, that on the date and
— from the view point of Criminal Law, as distinguished in the place therein stated, petitioner herein had wilfully,
from political or Constitutional Law — they constitute, unlawfully and feloniously driven and operated "recklessly
strictly, different offenses, although under certain and without reasonable caution" an automobile described
conditions, one offense may include the other, and, in said information. Upon the other hand, the information in
accordingly, once placed in jeopardy for one, the plea of case No. 16443, similarly states that, on the same date
double jeopardy may be in order as regards the other, as and in the same place, petitioner drove and operated the
in the Diaz case. (Emphases in the original) aforementioned automobile in a "reckless and negligent
manner at an excessive rate of speed and in violation of
Thirdly, our Bill of Rights deals with two (2) kinds of double the Revised Motor Vehicle Law (Act No. 3992), as
jeopardy. The first sentence of clause 20, section 1, Article amended by Republic Act No. 587, and existing city
ordinances." Thus, if the theories mentioned in the second The question of Identity or lack of Identity of offenses is addressed by
information were not established by the evidence, examining the essential elements of each of the two offenses charged, as
petitioner could be convicted in case No. 16443 of the very such elements are set out in the respective legislative definitions of the
same violation of municipal ordinance charged in case No. offenses involved. The question of Identity of the acts which are claimed to
16054, unless he pleaded double jeopardy. have generated liability both under a municipal ordinance and a national
statute must be addressed, in the first instance, by examining the location of
It is clear, therefore, that the lower court has not erred such acts in time and space. When the acts of the accused as set out in the
eventually sustaining the theory of petitioner herein. two informations are so related to each other in time and space as to be
reasonably regarded as having taken place on the same occasion and
where those acts have been moved by one and the same, or a continuing,
Put a little differently, where the offenses charged are penalized either by intent or voluntary design or negligence, such acts may be appropriately
different sections of the same statute or by different statutes, the important characterized as an integral whole capable of giving rise to penal liability
inquiry relates to the identity of offenses charge: the constitutional protection simultaneously under different legal enactments (a municipal ordinance and
against double jeopardy is available only where an Identity is shown to exist a national statute).
between the earlier and the subsequent offenses charged. In contrast, where
one offense is charged under a municipal ordinance while the other is
penalized by a statute, the critical inquiry is to the identity of the acts which In Yap, the Court regarded the offense of reckless driving under the Iloilo
the accused is said to have committed and which are alleged to have given City Ordinance and serious physical injuries through reckless imprudence
rise to the two offenses: the constitutional protection against double jeopardy under the Revised Motor Vehicle Law as derived from the same act or sets
is available so long as the acts which constitute or have given rise to the first of acts — that is, the operation of an automobile in a reckless manner. The
offense under a municipal ordinance are the same acts which constitute or additional technical element of serious physical injuries related to the
have given rise to the offense charged under a statute. physical consequences of the operation of the automobile by the accused,
i.e., the impact of the automobile upon the body of the offended party.
Clearly, such consequence occurred in the same occasion that the accused
The question may be raised why one rule should exist where two offenses operated the automobile (recklessly). The moral element of negligence
under two different sections of the same statute or under different statutes permeated the acts of the accused throughout that occasion.
are charged, and another rule for the situation where one offense is charged
under a municipal ordinance and another offense under a national statute. If
the second sentence of the double jeopardy provision had not been written In the instant case, the relevant acts took place within the same time frame:
into the Constitution, conviction or acquittal under a municipal ordinance from November 1974 to February 1975. During this period, the accused
would never constitute a bar to another prosecution for the same act under a Manuel Opulencia installed or permitted the installation of electrical wiring
national statute. An offense penalized by municipal ordinance is, by and devices in his ice plant without obtaining the necessary permit or
definition, different from an offense under a statute. The two offenses would authorization from the municipal authorities. The accused conceded that he
never constitute the same offense having been promulgated by different effected or permitted such unauthorized installation for the very purpose of
rule-making authorities — though one be subordinate to the other — and the reducing electric power bill. This corrupt intent was thus present from the
plea of double jeopardy would never lie. The discussions during the 1934- very moment that such unauthorized installation began. The immediate
1935 Constitutional Convention show that the second sentence was inserted physical effect of the unauthorized installation was the inward flow of electric
precisely for the purpose of extending the constitutional protection against current into Opulencia's ice plant without the corresponding recording
double jeopardy to a situation which would not otherwise be covered by the thereof in his electric meter. In other words, the "taking" of electric current
first sentence. 13 was integral with the unauthorized installation of electric wiring and devices.
It is perhaps important to note that the rule limiting the constitutional Under the Rules of Court, an order sustaining a motion to quash based on
protection against double jeopardy to a subsequent prosecution for the same prescription is a bar to another prosecution for the same offense. 15
offense is not to be understood with absolute literalness. The Identity of
offenses that must be shown need not be absolute Identity: the first and It is not without reluctance that we deny the people's petition for certiorari
second offenses may be regarded as the "same offense" where the second and mandamus in this case. It is difficult to summon any empathy for a
offense necessarily includes the first offense or is necessarily included in businessman who would make or enlarge his profit by stealing from the
such first offense or where the second offense is an attempt to commit the community. Manuel Opulencia is able to escape criminal punishment
first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to because an Assistant City Fiscal by inadvertence or otherwise chose to file
be available, not all the technical elements constituting the first offense need be present in
the technical definition of the second offense. The law here seeks to prevent harrassment of an information for an offense which he should have known had already
an accused person by multiple prosecutions for offenses which though different from one prescribed. We are, however, compelled by the fundamental law to hold the
another are nonetheless each constituted by a common set or overlapping sets of technical protection of the right against double jeopardy available even to the private
elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People respondent in this case.
vs. del Carmen et al., 88 Phil. 51 (1951):
The civil liability aspects of this case are another matter. Because no
While the rule against double jeopardy prohibits reservation of the right to file a separate civil action was made by the
prosecution for the same offense, it seems elementary that Batangas City electric light system, the civil action for recovery of civil liability
an accused should be shielded against being prosecuted arising from the offense charged was impliedly instituted with the criminal
for several offenses made out from a single action both before the City Court of Batangas City and the Court of First
act. Otherwise, an unlawful act or omission may give use Instance of Batangas. The extinction of criminal liability whether by
to several prosecutions depending upon the ability of the prescription or by the bar of double jeopardy does not carry with it the
prosecuting officer to imagine or concoct as many extinction of civil liability arising from the offense charged. In the present
offenses as can be justified by said act or omission, by case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the
simply adding or subtracting essential elements. Under the police investigation having stolen electric current through the installation and use of
theory of appellant, the crime of rape may be converted unauthorized elibctrical connections or devices. While the accused pleaded not guilty before
into a crime of coercion, by merely alleging that by force the City Court of Batangas City, he did not deny having appropriated electric power.
and intimidation the accused prevented the offended girl However, there is no evidence in the record as to the amount or value of the electric power
appropriated by Manuel Opulencia, the criminal informations having been dismissed both by
from remaining a virgin. (88 Phil. at 53; emphases the City Court and by the Court of First Instance (from which dismissals the Batangas City
supplied) electric light system could not have appealed 17) before trial could begin. Accordingly, the
related civil action which has not been waived expressly or impliedly, should be remanded
to the Court of First Instance of Batangas City for reception of evidence on the amount or
By the same token, acts of a person which physically occur on the same value of the electric power appropriated and converted by Manuel Opulencia and rendition
occasion and are infused by a common intent or design or negligence and of judgment conformably with such evidence.
therefore form a moral unity, should not be segmented and sliced, as it were,
to produce as many different acts as there are offenses under municipal
WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the
ordinances or statutes that an enterprising prosecutor can find
civil action for related civil liability be remanded to the Court of First Instance
of Batangas City for further proceedings as indicated above. No
It remains to point out that the dismissal by the Batangas City Court of the pronouncement as to costs.
information for violation of the Batangas City Ordinance upon the ground that
such offense had already prescribed, amounts to an acquittal of the accused
SO ORDERED.
of that offense. Under Article 89 of the Revised Penal Code, "prescription of
the crime" is one of the grounds for "total extinction of criminal liability."
Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., [1956] 51). This provision of the Philippine Bill was carried
concur. over in Identical words in the Jones Law of August 29,
1916 (Sec. 3, Ibid, 105).
Cruz, J., took no part.
10 The case law on this point includes: Lu Hayco vs. Court
of Appeals, 138 SCRA 227 (1985); People vs. Bocar, 138
SCRA 166 (1985); People vs. Militante, 117 SCRA 910
(1982); Flores Jr. vs. Ponce Enrile, 115 SCRA 236 (1982);
Footnotes People vs. Glorin 80 SCRA 675 (1977); People vs.
Consulta, 70 SCRA 277 (1976); Tacas vs. Cariaso 72
1 Petition for certiorari and Mandamus, dated 27 SCRA 527 (1976); Bustamante vs. Maceren, 48 SCRA
November 1976, p. 2. 155 (1972); People vs. Mencias, 46 SCRA 88 (1972);
People vs. Doriquez, 24 SCRA 163 (1968); Culanag vs.
2 Id. Director of Prisons, 20 SCRA 1123 (1967); People vs.
Ramos, 2 SCRA 523 (1961); Yap vs. Hon. Lutero, 105
Phil. 1307 (1959); People vs. Opemia 98 Phil. 698 (1956);
3 Id.; and Annex "A " of the Petition. People vs. Alger 92 Phil. 227 (1953); People vs. del
Carmen, 88 Phil. 51 (1951); Melo vs. People, 85 Phil. 766
4 Order dated 6 April 1976 of Acting City Judge Aguileo S. (1950); People vs. Ylagan, 58 Phil. 851 (1933); People vs.
de Villa, City Court, Branch I, Batangas City, Criminal Cabrera, 43 Phil. 82 (1922); Julia vs. Sotto, 2 Phil. 247
Case No. 2385. (1903).
5 Memorandum for the Petitioner dated 16 April 1977, pp. 11 G.R. No. L-12669, 30Aprill959.Unfortunately,this
13-14. decision is not reported in full; see 105 Phil. 1307 (1959).
x x x (IV Id. pp. 113-115; brackets MR. LAUREL. Well my suggestion that
supplied) we approve in principle the proposition
covers this particular case. That is to
The distinction between "acts" and "offenses" in the say, a person may not be prosecuted
context of the double jeopardy provision was present in twice in a case where there are two
the minds of the delegates to the Convention. Thus: laws, one general law and one municipal
ordinance. That is to say, in case he is
MR. LAUREL. Mr. President, that has prosecuted under a general law, that is
practically been brought up here, a part or the consequences of a
because some of our delegates municipal ordinance, and vice versa.
suggested that the word "act" be That is the Idea, the primary Idea, and
that is our recommendation. Now, as to
how we should word it, whether we la Corte Supreme declare, en ese caso
should retain the draft as it is or we shall particular, que como quiera que aquel
modify or amplify that and then acto estaba penado por una ordenanza
incorporate the amendment suggested municipal y por una ley general, se
by Delegate Francisco, I think it is just a cometen dos delitos; uno contra el
matter of style and can be entirely left to municipio y otro contra el Estado o
the Committee on Style. " (IV Id, pp. contra la ley general de ahi que mi
116-117) enmienda en el sentido de que cuando
un acusado ha cometido un acto
xxx xxx xxx penado por una ordenanza municipal y
al tiempo por una ley general, y dicho
acusado ya ha sido convictopor la
"SR. FRANCISCO. Senor Presidente, infraccion procesado ulteriormente bajo
Caballeros de la convencion, voy a ser otra ley. Creo, por lo tanto, que no es
breve. Yo no estoy conforme con la cuestion solamente de estilo, sino que
ultima parte del discurso de mi es una cuestion fundamental" (IV Id, p.
distinguido amigo el Delegado por 119, emphases supplied)
Batangas, Sr. Laurel, al decir que la
frase "en ningun caso se pondra a una
persona en peligro de ser condenada 14 Section 9, Rule 117, Revised Rules of Court.
dos veces por el mismo delito," cubre la
enmienda que he presentado. La razon 15 Sections of and 8, Rule 117, Revised Rules of Court;
es muy sencilla. Las palabras "mismo see Cabral vs. Puno, 70 SCRA 606 (1976).
delito" no quieren decir un mismo
acto. Esta cuestion ha sido planteada 16 Supra, Note 3.
ante la Corte Suprema. Al ejecutar un
acto penado bajo o una ordenanza
municipal y penado bajo o una ley 17 People v. Velez, 77 Phil. 1046 (1946); People v.
general, se presents una accion contra Maceda, 73 Phil. 679 (1942); People v. Liggayu et al. 97
el en el juzgado de paz. Convicto en el PhiL 865 (1955)
juzgado de paz y firme la sentencia, se
presenta otra acusacion contra el en el G.R. Nos. 101557-58. April 28, 1993.
juzgado de Primera Instancia por
infraccion de una ley general. El PEOPLE OF THE PHILIPPINES and SPS. AMADO and TERESA RUBITE,
acusado se defiende alegando que esta petitioners,
en jeopardy, porque ya habia sido vs.
condenado por ese mismo acto, y la HON. FILOMENO A. VERGARA, PRESIDING JUDGE, RTC, BR. 51,
Corte Suprema declaro que la teoria del PALAWAN, and LEONARDO SALDE, SR., LEONARDO SALDE, JR.,
acusado era erronea, porque dice que lo FLORESITA SALDE, GLORIA SALDE-PANAGUITON, and JOJETA
que la ley prohibe es que se ponga a PANAGUITON, respondent.
uno en peugro de ser condenado por un
mismo delito y no por un mismo acto, y
V. Dennis for petitioners. accused for reinvestigation of the cases against them, which Provincial
Fiscal Eustaquio Z. Gacott, Jr., later resolved in their favor.
Perfecto delos Reyes and Roberto delos Reyes for private respondents.
On 12 December 1988, counsel for the offended parties gave, notice to the
DECISION Provincial Fiscal of their intention to appeal the latter's resolution to the
Department of Justice. On 2 February 1989, pending appeal to the
Department of Justice, Provincial Fiscal Gacott, Jr., moved for the dismissal
BELLOSILLO, J p: of the cases on the ground that the reinvestigation disclosed that petitioner-
spouses Amado and Teresa Rubite were the real aggressors and that the
Jeopardy is the peril in which an accused is placed when put on trial before a accused only acted in self-defense.
court of competent jurisdiction upon an indictment or information which is
sufficient in form and substance to sustain a conviction. No person can be On 9 February 1989, acting on the motion of the Provincial Fiscal, the
twice put in this peril for the same offense. The Constitution prohibits it. Regional Trial Court of Palawan, Br. 52, ordered the dismissal of Crim.
Nemo debet bis puniri pro uno delicto. This is the defense raised by Cases Nos. 7396 and 7397.
accused-private respondents after respondent Judge, upon motion of the
Provincial Fiscal, ordered without notice and hearing the dismissal of Crim.
Cases Nos. 7396 and 7397 both for frustrated murder, which thereafter were Meanwhile, on 1 March 1990, the Secretary of Justice ordered the Provincial
reinstated upon initiative of the Secretary of Justice and docketed anew as Prosecutor to refile the Informations. Hence, on 6 April 1990, two (2) new
Crim: Cases Nos. 8572 and 8573. Informations for frustrated murder against the same accused were filed by
Acting Provincial Prosecutor Clarito A. Demaala, docketed as Crim. Cases
Nos. 8572 and 8573.
It appears that on 7 April 1988, 3rd Asst. Provincial Fiscal Luis E. Estiller of
Puerto Princesa City filed Crim. Cases Nos. 7396 and 7397 for frustrated
murder against accused Leonardo Salde, Sr., Leonardo Salde, Jr., Floresita On 13 May 1991, after pleading "not guilty" to the new Informations, the
Salde, Gloria Salde-Panaguiton and Jojeta Panaguiton for allegedly accused moved to quash on the ground of double jeopardy, which was
conspiring together in attacking and taking turns in assaulting complainants, opposed by the Office of the Provincial Prosecutor. On 10 July 1991, the trial
the spouses Teresa and Amado Rubite, by throwing stones at Amado Rubite court granted the motion and dismissed Crim. Cases Nos. 8572 and 8573.
and hacking him with a bladed weapon, hitting him on the left fronto-parietal The motion to reconsider the order of 10 July 1991 filed by Acting Provincial
area which would have caused his death in Crim. Case No. 8572 (G.R. No. Prosecutor Demaala was denied on 16 August 1991. Hence, this petition for
101557), and by striking Teresa with wood and stones and hacking her with certiorari filed by private petitioners Amado and Teresa Rubite, complainants
a bolo which would have caused her death in Crim. Case No. 8573 (G.R. in the court below.
No. 101558).
Petitioners contend that the filing of the two (2) new Informations did not
On 3 June 1988, accused Leonardo Salde, Sr., Leonardo Salde, Jr., place accused-private respondents in double jeopardy since the dismissal of
Floresita Salde and Gloria Salde-Panaguiton were arraigned. They all the previous cases was made with the latter's express consent, which can
pleaded "not guilty." On 2 August 1988, accused Jojeta Panaguiton was also be equated with their motion for reinvestigation of the cases, dismissal of the
arraigned and likewise entered a plea of "not guilty." cases being their ultimate intention in moving for reinvestigation. It is the
position of petitioners that when the dismissal is with the express consent of
the accused, such dismissal cannot be the basis of a claim of double
On 19 September 1988, when the cases were initially called for trial, the jeopardy.
Prosecuting Fiscal together with counsel for accused jointly moved for the
suspension of the hearing pending the outcome of the motion filed by the
Petitioners further submit that the dismissal of the previous cases is null and Furthermore, private respondents, in response to the allegation that the
void as the motion to dismiss filed by the Provincial Prosecutor which led to orders of respondent judge dismissing the first two cases were null and void,
the dismissal of the cases did not contain a notice of hearing; hence, it was argue that if indeed the dismissal orders were null and void, petitioners
then a "mere scrap of paper" which the lower court should not even have should not have waited for the filing of the new Informations and their
entertained. subsequent quashal. They should have immediately challenged the
dismissal order. After sleeping on their rights, they cannot belatedly say that
Finally, petitioners maintain that where the prosecution has been deprived of they were denied due process.
a fair opportunity to prosecute and prove its case, its right to due process is
violated. The cases at bar raise two (2) fundamental issues: (a) whether private
respondents gave their express consent to the dismissal of the original
In this regard, the Solicitor General, interestingly, concurs with petitioners. Informations; and, (b) whether the first jeopardy was invalidly terminated.
Instead of filing a Comment as We required him to do, he filed a
Manifestation, citing Gumabon v. Dir. of the Bureau of Prisons, and We answer both in the negative. Then, double jeopardy lies.
submitting that "[c]onsidering that the Order of respondent judge dated
February 9, 1989 favorably granting the Motion to Dismiss without notice and The right against double jeopardy prohibits any subsequent prosecution of
hearing constituted a violation of basic constitutional rights, the respondent any person for a crime of which he has previously been acquitted or
court was consequently ousted of its jurisdiction when its Order violated the convicted. The objective is to set the effects of the first prosecution forever at
right of the prosecution to due process." In effect, the first jeopardy never rest, assuring the accused that he shall not thereafter be subjected to the
terminated as the respondent trial court was not competent to issue the 9 peril and anxiety of a second charge against him for the same offense. This
February 1989 Order. Court, as early as ninety (90) years back, in Julia v. Sotto, said —
While the Solicitor General concedes that "[w]hat should have been done by "Without the safeguard this article establishes in favor of the accused, his
the new Provincial Prosecutor was to refile the Informations in Crim. Cases fortune, safety, and peace of mind would be entirely at the mercy of the
Nos. 7396 and 7397 and not to file new Informations which were docketed complaining witness, who might repeat his accusation as often as dismissed
as Crim. Cases Nos. 8572 and 8573," he nevertheless avers that the filing of by the court and whenever he might see fit, subject to no other limitation or
the new Informations amounted merely to a continuation of the first jeopardy restriction than his own will and pleasure. The accused would never be free
and did not expose the private respondents to a second jeopardy. People v. from the cruel and constant menace of a never-ending charge, which the
Bocar laid down the requisites of a valid defense of double jeopardy: (a) a malice of the complaining witness might hold indefinitely suspended over his
first jeopardy must have attached prior to the second; (b) the first jeopardy head . . ."
must have been validly terminated; and, (c) the second jeopardy must be for
the same offense as that in the first. Consequently, there being no valid
termination of the first jeopardy, the defense of double jeopardy must fail. Que v. Cosico enumerates the requisites which must concur for double
jeopardy to attach: (a) a valid complaint or information; (b) a court of
competent jurisdiction; (c) the accused has pleaded to the charge; and, (d)
Private respondents on the other hand, invoking the now repealed Sec. 9, the accused has been convicted or acquitted or the case dismissed or
Rule 117, of the Rules of Court, asseverate that the "rules provide and terminated without the express consent of the accused.
speak of EXPRESS CONSENT" which cannot be equated with intention.
Hence, while they may have intended to have their cases dismissed upon
moving for reinvestigation, they never gave their express consent to the The concurrence of all these circumstances constitutes a bar to a second
dismissal of the cases. In fact, they never sought the dismissal of the prosecution for the same offense, an attempt to commit the said offense, a
charges against them.
frustration of the said offense, or any offense which necessarily includes or is Salde, Sr. and his co-accused merely defended themselves from the attack
necessarily included in the first offense charged. of the Rubites. Consequently, it would be unfair, arbitrary and unjustified to
prosecute the accused in the above-entitled case."
In the cases before Us, it is undisputed that valid Informations for frustrated
murder, i.e., Crim. Cases Nos. 7396 and 7397 were filed against private Besides, who should invoke "lack of notice" but the party deprived of due
respondents before the Regional Trial Court of Palawan, a court of notice or due process. And when the Provincial Prosecutor moved to dismiss
competent jurisdiction. It is likewise admitted that private respondents, after on the ground that the complaining witnesses were instead the aggressors
being properly arraigned, entered a plea of not guilty. The only question then and the accused simply acted in self-defense, would the accused have
remaining is whether the cases against them were dismissed with their opposed the motion as to require that he be first notified before the cases
express consent. against him be dismissed?
Express consent has been defined as that which is directly given either viva Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly
voce or in writing. It is a positive, direct, unequivocal consent requiring no provides that "[a]ll criminal actions either commenced by complaint or by
inference or implication to supply its meaning. This is hardly what private information shall be under the direction and control of the fiscal." It must be
respondents gave. What they did was merely to move for reinvestigation of remembered that as public prosecutor he is the —
the case before the prosecutor. To equate this with express consent of the
accused to the dismissal of the case in the lower court is to strain the "representative not of the ordinary party to a controversy, but of a
meaning of "express consent" too far. Simply, there was no express consent sovereignty whose obligation to govern impartially is as compelling as its
of the accused when the prosecutor moved for the dismissal of the original obligation to govern all; and whose interest, therefore, in a criminal
Informations. prosecution is not that it shall win a case, but that justice shall be done. As
such , he is in a peculiar and very definite sense the servant of the law, the
The Solicitor General then claims that there can be no valid defense of twofold aim of which is that guilt shall not escape or innocence suffer."
double jeopardy since one of the requisites for its valid defense, i.e., that
there be a valid termination of the first jeopardy, is unavailing. He further Hence, the fiscal or public prosecutor always assumes and retains full
argues that the motion to dismiss filed by the public prosecutor should not direction and control of the prosecution. The institution of a criminal action
have been entertained, much less granted, since there was no notice of depends upon his sound discretion. He has the quasi-judicial discretion to
hearing, nor was it actually set for hearing. determine whether or not a criminal case should be filed in court; whether a
prima facie case exists to sustain the filing of an Information; whether to
We do not agree. include in the charge those who appear to be responsible for the crime;
whether to present such evidence which he may consider necessary;
While it may be true that, as a general rule, all motions should contain a whether to call such witnesses he may consider material; whether to move
notice of hearing under Rule 15 of the Rules of Court, these cases present for dismissal of the case for insufficiency of evidence. As in the case at bar,
an unusual situation where the motion to dismiss filed negates the necessity he may move for the dismissal of the case if he believes that there is no
of a hearing. Here, it was the public prosecutor himself who after instituting cause of action to sustain its prosecution, which was what in fact he did after
Crim. Cases Nos. 7396 and 7397 filed a motion to dismiss on the ground being convinced that it would be "unfair, arbitrary and unjustified to
that after a reinvestigation it was found that — prosecute the accused" who were really the victims, as the reinvestigation
showed.
". . . the evidence in these cases clearly tilts in favor of both accused. The
spouses Amado and Teresa Rubite were the aggressors and the accused
Since it was the prosecuting officer who instituted the cases, and who an act without or in excess of jurisdiction and is not void. There is a great
thereafter moved for their dismissal, a hearing on his motion to dismiss was difference in the results which follow the failure to give the notice, which is
not necessary at all. It is axiomatic that a hearing is necessary only in cases necessary to confer on the court jurisdiction over the person and the subject
of contentious motions. The motion filed in this case has ceased to be matter of the action, and that which follows a failure to give notice of a step
contentious. Definitely, it would be to his best interest if the accused did not taken after the court has obtained such jurisdiction and is proceeding with
oppose the motion. The private complainants, on the other hand, are the action.
precluded from questioning the discretion of the fiscal in moving for the
dismissal of the criminal action. Hence, a hearing on the motion to dismiss Hence, the conditions for a valid defense of double jeopardy, i.e., (a) a first
would be useless and futile. jeopardy must have attached prior to the second; (b) the first jeopardy must
have been validly terminated; and, (c) the second jeopardy must be for the
On the other hand, the order of the court granting the motion to dismiss, same offense as that of the first, all being present in these cases, the
notwithstanding the absence of a notice and hearing on the motion, cannot defense of double jeopardy must prevail.
be challenged in this petition for certiorari which assails the dismissal of the
two (2) cases on the ground of double jeopardy. Petitioners can no longer WHEREFORE, finding no abuse of discretion, much less grave, committed
question the dismissal of the previous cases as the order has already by public respondent, and, for lack of merit, the instant petition is
become final there being no appeal therefrom. DISMISSED.
It has been repeatedly held that once an Information is filed with the court, it SO ORDERED.
acquires jurisdiction over the case, and the consequent discretion to dismiss
it. While the prosecutor retains full control over the prosecution, he loses
jurisdiction over the entire proceedings. Hence, what petitioners should have G.R. No. 132374 August 22, 2002
done was to appeal the dismissal of the cases on the ground that the said
motion failed to include a notice of hearing, and should not have waited for PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
the dismissal of the subsequent cases on the ground of double jeopardy, vs.
and thereafter question the first dismissal, which by then had already LUCIO ALBERTO y DANAO, accused-appellant.
become final, erroneous though it may be.
DECISION
The order of the court granting the motion to dismiss despite absence of a
notice of hearing, or proof of service thereof, is merely an irregularity in the QUISUMBING, J.:
proceedings. It cannot deprive a competent court of jurisdiction over the
case. The court still retains its authority to pass on the merits of the motion.
The remedy of the aggrieved party in such cases is either to have the order Subject of this appeal, which we find meritorious, is the judgment1 dated
set aside or the irregularity otherwise cured by the court which dismissed the August 21, 1997, of the Regional Trial Court, Branch 18, Pagadian City,
complaint, or to appeal from the dismissal order, and not certiorari. convicting Lucio Alberto of the special complex crime of robbery with
homicide, allegedly committed as follows:
It must be stressed that after a court has obtained jurisdiction over the case,
the failure to give notice of a subsequent step in the proceedings does not That on or about the 18th day of October 1993 at about 7:30 o’clock in the
deprive the court of jurisdiction. If substantial injury results from failure of evening at Barangay Gandiangan, Municipality of Imelda, Province of
notice and complaint is duly made thereof, the act of the court may be held Zamboanga del Sur, Philippines, and within the jurisdiction of this Honorable
to be erroneous and will be corrected in the proper proceeding, but it is not Court, the above-named accused with intent to gain and by means of
violence did then and there willfully, unlawfully, and feloniously take and rob killing in Barangay Gandiangan. He immediately went to the place of the
one Teresa2 Semic of cash money and by reason and on the occasion of incident and saw below the stairway of her kitchen outside her house the
said robbery, the above-named accused did then and there willfully, body of Teresa covered in her own blood. He saw a pair of slippers about
unlawfully, and feloniously attack, assault and stab said Teresa Semic three meters away from the body. He brought the slippers to their station.
thereby inflicting upon the latter mortal wounds which caused her death The following day, October 19, 1993, he went back
immediately thereafter.3 to Barangay Gandiangan, talked with the barangay captain, and arrested
appellant on the request of the barangay captain. Upon reaching the police
During his arraignment, appellant entered a plea of not guilty. Trial on the station, he asked appellant to open the bag which he brought with him.
merits then followed. Inside was a pair of short pants with bloodstain near the zipper, a bandana,
and a medallion necklace. He then asked appellant to take off his shoes
wherein an envelope was found containing P950 in different blood-stained
The prosecution presented as its first witness VIRGILIO ALAP- denominations. Three days later, he also recovered a knife from a certain
AP, barangay captain of Barangay Israel, Imelda, Zamboanga del Sur. He Payna. Witness Dela Cruz admitted that he was not sure whether the
testified that on the morning of October 19, 1993, he was informed by slippers he recovered really belonged to the person who killed Teresa.6
members of his Bantay Bayan that there was a killing
at Barangay Gandiangan. He was also informed of the suspicious acts of
Lucio Alberto, who would take out his bag from a sack whenever there was On June 26, 1996, the trial court issued an order dismissing the case for
no one around but would place it back when people were around. On the failure of the prosecution to submit its formal offer of exhibits. The said order
basis of this information, he brought Lucio Alberto and Titing Medel to the was lifted after the prosecution filed a motion for reconsideration on July 1,
house of the barangay captain of Barangay Gandiangan, where they were 1996. Thereafter, the prosecution continued to present its evidence.
investigated. He was informed by Titing Medel that the slippers which were
recovered near the body of Teresa Semic used to belong to him before he ATTY. PACIFICO T. CIMAFRANCA, of the Public Attorney’s Office (PAO),
exchanged it for a necklace from Alberto by way of barter. Alap-ap then testified that he assisted appellant at the time he executed his extrajudicial
accompanied Alberto to the PNP Police station of Imelda where he was confession7 on January 14, 1994. He identified said extrajudicial
turned over to SPO1 Francisco dela Cruz. He alleged that he was present confession8which was placed into the record of the trial by the court.
when the police conducted a physical examination on Alberto. They
discovered blood-stained currency bills amounting to a total of P950, The last witness for the prosecution, ERNESTO PAYNA, testified that he
believed to be stolen from the victim.4 was informed of the death of his aunt, Santiaga Theresa9 at around 7:00
P.M. of October 18, 1993. He saw the body of his aunt at the balcony near
JOEL MEDEL @ TITING followed on the witness stand. He testified that on the stairs of her kitchen. He also saw a pair of slippers about one meter from
October 18, 1993, he saw appellant Lucio Alberto outside the store of the body of the victim.10
Teresa "Isang" Semic. Appellant stayed behind, said the witness, when he
went home at around 6:00 P.M. He was at the house of On March 26, 1997, the defense orally asked for leave to file demurrer to
the barangay captain of Gandiangan when he found out that Aling "Isang" evidence. On April 25, 1997, the demurrer was filed but it was denied on
was already dead. He stated that the slippers found near the body of Aling May 13, 1997. On June 25, 1997, the trial court issued an order declaring
"Isang" were originally his, but he bartered them to Alberto for a necklace. that the accused should be deemed to have waived his right to present
He was present when the police recovered several bloodied bills in the evidence for the defense, and that the case be considered submitted for
amount of P950 from the shoes of appellant Lucio Alberto. 5 decision.
SPO1 FRANCISCO DELA CRUZ testified that he was in his house in the
evening of October 18, 1993 when he received a report that there was a
On August 21, 1997, the trial court promulgated its judgment, the dispositive The Office of the Solicitor General, for the appellee, counters that there was
portion of which reads: no violation of the right of appellant not to be placed in double jeopardy. The
OSG argues that the order of the trial court dismissing the case was illegal
WHEREFORE, judgment is hereby rendered finding the accused guilty and void for being issued with abuse of discretion. The trial court did not
beyond reasonable doubt. He is hereby sentence (sic) to the penalty of
1âwphi1
afford any opportunity to the prosecution to be heard before it decided to
reclusion perpetua to death and to pay the private offended party as dismiss the case, contrary to Section 15, Rule 119 of the Revised Rules of
indemnity the sum of P50,000.00, without subsidiary imprisonment in case of Court.15 It did not even consider that even without the said formal offer of
insolvency. exhibits, the prosecution could still prove its case on the basis of the
testimonial evidence alone. Being void, the said order cannot have the effect
of terminating the trial and, hence, cannot serve as basis for the claim of
SO ORDERED.11 double jeopardy.
Hence, this appeal. In his brief, appellant assigns the following as errors: On the claim of the defense that the needed quantum of proof to convict
appellant has not been met, the OSG maintains that appellant’s extrajudicial
I confession and the other pieces of evidence presented by the prosecution
are more than enough to convict appellant.
THE TRIAL COURT GRAVELY ERRED IN REINSTATING THE CASE
AFTER JUNE 26, 1996 AFTER IT HAS DISMISSED THE CASE FOR However, the OSG recommends that the appellant should be convicted of
INSUFFICIENCY OF EVIDENCE FOR FAILURE OF THE STATE TO two distinct crimes of homicide and theft, not robbery with homicide, because
SUBMIT ITS FORMAL OFFER OF EXHIBITS FOR ALMOST A YEAR from the tenor of the extrajudicial confession, it was clear that the appellant
WHEN REQUIRED TO BY THE TRIAL COURT OVER THE intended to kill the victim and that the taking of the P950.00 was a mere
OPPOSITION/OBJECTION OF THE ACCUSED AS THE SAME HAD afterthought.16
PLACED THE ACCUSED IN DOUBLE JEOPARDY FOR THE SAME
OFFENSE. The pertinent issues for resolution in this case are: (1) whether or not
appellant was placed in double jeopardy when the trial court reconsidered its
II order dismissing the case; (2) whether or not the extrajudicial confession
was admissible against appellant; and (3) whether or not the guilt of
THE TRIAL COURT GRAVELY ERRED IN RENDERING JUDGMENT appellant has been proved beyond reasonable doubt.
FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT.12
The three requisites before double jeopardy can be invoked are: (1) the first
Appellant contends that he was placed in double jeopardy when the trial jeopardy must have attached prior to the second; (2) the first jeopardy must
court reconsidered its order dismissing the case against him. More have been validly terminated; and (3) the second jeopardy must be for the
importantly, he contends that without the extrajudicial confession placed on same offense as that in the first, or the second offense includes or is
record,13 the evidence of the prosecution would not be able to meet the necessarily included in the offense charged in the first information, or is an
needed quantum of proof to establish his guilt. He assails said extrajudicial attempt to commit the same or is a frustration thereof.17 As to the first
confession on the ground that it was not duly established that it was he who jeopardy, it only arises (1) upon a valid indictment; (2) before a competent
signed it. He also argues that at the time said confession was executed, he court; (3) after arraignment; (4) when a valid plea has been entered; and (5)
was not assisted by a competent counsel of his choice. 14 when the defendant was acquitted, convicted, or the case was dismissed.
In our view, it is clear that no double jeopardy has attached in this case. We …[T]he lawyer called to be present during such investigation should be as
agree with the Solicitor General that the dismissal order made by the trial far as reasonably possible, the choice of the individual undergoing
court was not valid and cannot be used as basis for a claim of double questioning. If the lawyer were one furnished in the accused’s behalf, it is
jeopardy. The said right cannot be grounded on an error of law. As held important that he should be competent and independent, i.e., that he is
in People vs. Navarro: 18 willing to fully safeguard the constitutional rights of the accused, as
distinguished from one who would be merely be giving a routine, peremptory
The State is entitled to due process in criminal cases, that is, it must be and meaningless recital of the individual’s constitutional rights. In People vs.
given the opportunity to present its evidence in support of the charge. The Basay,21 this Court stressed that an accused’s right to be informed of the
Court has always accorded this right to the prosecution, and where the right right to remain silent and to counsel ‘contemplates the transmission of
had been denied, had promptly annulled the offending court action. We have meaningful information rather than just the ceremonial and perfunctory
heretofore held that a purely capricious dismissal of an information deprives recitation of an abstract constitutional principle.’
the State of fair opportunity to prosecute and convict; it denies the
prosecution its day in court. For this reason, it is a dismissal (in reality an Ideally therefore, a lawyer engaged for an individual facing custodial
acquittal) without due process, and, therefore, null and void. Such dismissal investigation (if the latter could not afford one) ‘should be engaged by the
is invalid for lack of a fundamental prerequisite, that is, due process, and, accused (himself), or by the latter’s relative or person authorized by him to
consequently, will not constitute a proper basis for the claim of double engage an attorney or by the court, upon proper petition of the accused or
jeopardy… person authorized by the accused to file such petition.’ Lawyers engaged by
the police, whatever testimonials are given as proof of their probity and
We agree with the OSG’s contention that the trial court exceeded its supposed independence, are generally suspect, as in many areas, the
authority when it dismissed the case without giving the prosecution a right to relationship between lawyers and law enforcement authorities can be
be heard, hence there was a violation of due process. Further, the failure of symbiotic.
the prosecution to offer its exhibits is not a ground to dismiss the case. Even
without any documentary exhibits, the prosecution could still prove its case …The competent or independent lawyer so engaged should be present from
through the testimonies of its witnesses. Thus, we find that when the trial the beginning to end, i.e., at all stages of the interview, counseling or
court reconsidered its order of dismissal, it merely corrected itself. advising caution reasonably at every turn of the investigation, and stopping
the interrogation once in a while either to give advice to the accused that he
On the second and third issues, appellant asks this Court to disregard the may either continue, choose to remain silent or terminate the interview.
extrajudicial confession which he had allegedly executed before and with the
assistance of Atty. Cimafranca, but which confession he denies. If On this score, we are constrained to hold that the standards of "competent
disregarded, he claims that the prosecution’s evidence would not be counsel" elucidated in Deniega were not met in this case. In the first place, it
sufficient to warrant a conviction beyond reasonable doubt. is clear that the appellant was not given the option to choose his own lawyer.
On its face, the preliminary statement in the extrajudicial
A counsel-assisted and voluntary confession is sufficient to establish the confession22 executed on January 14, 1994, bears this out:
guilt of the accused especially when it is corroborated on material points by
the prosecution witnesses.19 However, it is essential that the person making EXTRA-JUDICIAL CONFESSION OF LUCIO ALBERTO ASSISTED BY
the confession must be assisted by a "competent" counsel. The meaning ATTY. PACIFICO T. CIMAFRANCA, THIS JANUARY 14, 1994 AT
and standards of a "competent counsel" were explained in People vs. PAGADIAN CITY, PHILIPPINES.
Deniega20 as follows:
Preliminary Statement – I am informing you that you are under investigation A: No, I have warned the accused.
in connection to (sic) the killing of one Teresa Semic, do you need the
assistance of a lawyer. Q: You did not tell the accused which question are incriminating to him?
Additional preliminary statement – Atty. Pacifico T. Cimafranca, is a Lawyer It is clear from the above that Atty. Cimafranca was merely satisfied in just
of the Public Assistance Office, do you need his legal services to assist you. warning appellant of the consequences of his confession. He did not take an
active part during the actual taking of said confession. Further, it was evident
ANSWER: Yes. that Atty. Cimafranca did not give appellant a complete picture of what may
befall him once he executed the confession:
(SGD.) Lucio Alberto
Q: Did you tell him that the penalty impose (sic) would be death penalty?
The appellant was not asked whether he wishes and can afford to retain his
own lawyer. He was just told that Atty. Cimafranca was a lawyer and asked A: I cannot remember unless it is included there in the affidavit. 24
whether he needs his services. He was not made aware that he could
choose his own lawyer other than those assigned by the police or the In our view, the assistance rendered by Atty. Cimafranca during the custodial
prosecutor. To all intents and purposes, Atty. Cimafranca can be described investigation failed to meet the exacting tests laid down in People vs.
as a lawyer engaged by the police since PAO lawyers are generally Deniega, supra. Thus, we must conclude that the so-called extrajudicial
assigned to police stations and prosecutor’s offices as part of their regular confession of appellant is inadmissible as evidence for the prosecution.
duties. As such, it cannot be denied that the relationship of Atty. Cimafranca
with the police and the prosecutor could be symbiotic. In fact, we take note
that the office of Atty. Cimafranca was even located at the provincial capitol Moreover, we find that the prosecution did not even take any effort to
where he was at the beck and call of the Provincial Prosecutor. establish that the person who executed the said confession was the
appellant. Atty. Cimafranca was not made to identify appellant in court. Nor
were the signatures or initials therein identified as appellant’s own.
Aside from this, we are not satisfied that Atty. Cimafranca dutifully and
faithfully assisted appellant during the course of the investigation. This is
clear from his testimony in court, to wit: Without said confession, the prosecution’s evidence is weak. It is insufficient
to sustain the conviction of appellant.
Q: While in the course of taking confession you did not even give advice to
Lucio Alberto when not to answer the question and when to answer the First, the ownership of the slippers found near the body of the victim was not
question propounded? sufficiently established. The prosecution’s evidence seems to indicate that
the owner of the slippers was Joel Medel and not appellant. Medel testified
that he bartered the slippers for a necklace. However, he was not able to
A: I did not give him anymore further advice before taking down the satisfactorily explain why the necklace was still in the possession of
confession into writing because I have already warned the accused of the appellant and not with him at the time the former was apprehended. Second,
consequences of his confession. even the money allegedly found in the possession of appellant was not
established by the prosecution as belonging to the victim. Third, the blood
Q: You did not advice Lucio Alberto? allegedly found on the money and the shorts of appellant was not examined
so that a comparison with the victim’s blood could be made. Fourth, the PEOPLE OF THE PHILIPPINES, petitioner,
prosecution also failed to establish the time and cause of death of Teresa vs.
Semic. All in all, the prosecution miserably failed to overcome the HON. SIMEON. FERRER (in his capacity as Judge of the Court of First
presumption of innocence in favor of appellant. Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias
"Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"respondents.
The fact that appellant was not able to use his turn to present evidence in his
defense and rebut the prosecution’s evidence should not be the sole Solicitor R. Mutuc for respondent Feliciano Co.
determinant of his guilt. Moreover, whether the accused decided to present
evidence on his behalf or not, the burden of the prosecution to prove its case Jose W. Diokno for respondent Nilo Tayag.
remains. Among the fundamental rights of an accused under the Bill of
Rights is to be presumed innocent until the contrary is proved, and to
overcome the presumption, the prosecution must establish his guilt with
proof beyond reasonable doubt.25 Even if the accused should choose to
remain silent, if the prosecution failed in discharging its burden, then it is not CASTRO, J.:p
only the accused’s right to be freed; it is, even more, the court’s
constitutional duty to acquit him.26 Where it was not properly and sufficiently I. Statement of the Case
established beyond reasonable doubt that appellant was the one who killed
the victim, as in this case, his conviction could not be lawfully sustained. His
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
appeal should be considered favorably, and his conviction annulled.
Appellant should be freed forthwith. Act, 1 which outlaws the Communist Party of the Philippines and other
"subversive associations," and punishes any person who "knowingly,
WHEREFORE, the assailed decision of the Regional Trial Court of Pagadian willfully and by overt acts affiliates himself with, becomes or remains
City, Branch 18, is hereby REVERSED AND SET ASIDE. Appellant LUCIO a member" of the Party or of any other similar "subversive"
ALBERTO is ACQUITTED on the ground of insufficiency of evidence to organization.
prove his guilt beyond reasonable doubt. His immediate release from New
Bilibid Prison is hereby ordered, unless there is another lawful cause for his On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-
continued detention. The Director of the Bureau of Corrections, Muntinlupa Subversion Act was filed against the respondent Feliciano Co in the Court of
City, is directed to report compliance with this order within five (5) days from First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted
notice. a preliminary investigation and, finding a prima facie case against Co,
directed the Government prosecutors to file the corresponding information.
SO ORDERED. The twice-amended information, docketed as Criminal Case No. 27, recites:
1. As already stated, the legislative declaration in section 2 of the Act that ... A law forbidding the sale of beverages containingmore
the Communist Party of the Philippinesis an organized conspiracy for the than 3.2 per cent of alcohol would raise a question of
overthrow of theGovernment is inteded not to provide the basis for a legislativefact, i.e., whether this standard has a reasonable
legislativefinding of guilt of the members of the Party butrather to justify the relationto public health, morals, and the enforcement
proscription spelled out in section 4. Freedom of expression and freedom of problem. Alaw forbidding the sale of intoxicating
association are sofundamental that they are thought by some to occupy beverages (assuming itis not so vague as to require
a"preferred position" in the hierarchy of constitutional supplementation by rule-making)would raise a question of
values. 35 Accordingly, any limitation on their exercise mustbe justified adjudicative fact, i.e., whether thisor that beverage is
by the existence of a substantive evil. This isthe reason why before intoxicating within the meaning of the statuteand the limits
enacting the statute in question Congressconducted careful on governmental action imposed by the Constitution. Of
investigations and then stated itsfindings in the preamble, thus: course what we mean by fact in each case is itselfan
ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.
... [T]he Communist Party of the Philippines
althoughpurportedly a political party, is in fact an
organized conspiracyto overthrow the Government of the A conventional formulation is that legislative facts — those
Republic of the Philippinesnot only by force and violence facts which are relevant to the legislative judgment — will
but also by deceit, subversionand other illegal means, for not be canvassed save to determine whether there is a
the purpose of establishing in thePhilippines a totalitarian rationalbasis for believing that they exist, while
regime subject to alien dominationand control; adjudicativefacts — those which tie the legislative
enactment to the litigant — are to be demonstrated and
found according to the ordinarystandards prevailing for
... [T]he continued existence and activities of the judicial trials. 36
CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;
The test formulated in Nebbia vs. new York, 37 andadopted by this Court
in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in reasonable relation to a proper legislative purpose, and are neither
direction,posed by the Communist Party of the Philippines arbitrary nor discriminatory, the requirements of due process are
and its activities,there is urgent need for special legislation satisfied, and judicial determination to that effect renders a
court functus officio." The recital of legislative findings implements change. We rejectany principle of governmental
this test. helplessness in the face of preparationfor revolution, which
principle, carried to its logical conclusion,must lead to
anarchy. No one could conceive that it isnot within the
With respect to a similar statement of legislative findingsin the U.S. Federal power of Congress to prohibit acts intended tooverthrow
Subversive Activities Control Actof 1950 (that "Communist-action the government by force and violence.
organizations" are controlledby the foreign government controlling the
worldCommunist movement and that they operate primarily to"advance the
objectives of such world Communist movement"),the U.S. Supreme Court 2. By carefully delimiting the reach of the Act to conduct (as explicitly
said: described in sectin 4 thereof), Congressreaffirmed its respect for the rule that
"even throughthe governmental purpose be legitimate and substantial,that
purpose cannot be pursued by means that broadly stiflefundamental
It is not for the courts to reexamine the validity of
personal liberties when the end can be more narrowly achieved." 42 The
theselegislative findings and reject them....They are the
productof extensive investigation by Committes of requirement of knowing membership,as distinguished
Congress over morethan a decade and a half. Cf. Nebbia from nominal membership, hasbeen held as a sufficient basis for
v. New York, 291 U.S.502, 516, 530. We certainly cannot penalizing membershipin a subversive organization. 43 For, as has
dismiss them as unfoundedirrational imaginings. ... And if been stated:
we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist Membership in an organization renders aid and
organizations pose not only to existing governmentin the encouragement to the organization; and when
United States, but to the United States as asovereign, membership is acceptedor retained with knowledge that
independent Nation. ...we must recognize that thepower of the organization is engaged inan unlawful purpose, the
Congress to regulate Communist organizations of one accepting or retaining membershipwith such
thisnature is knowledge makes himself a party to the unlawfulenterprise
extensive. 39 in which it is engaged. 44
This statement, mutatis mutandis, may be said of thelegislative findings 3. The argument that the Act is unconstitutionallyoverbroad because section
articulated in the Anti-Subversion Act. 2 merely speaks of "overthrow"of the Government and overthrow may be
achieved by peaceful means, misconceives the function of the
That the Government has a right to protect itself againstsubversion is a phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is
proposition too plain to require elaboration.Self-preservation is the "ultimate merely a legislative declaration; the definitionsof and the penalties
value" of society. It surpasses and transcendes every other value, "forif a prescribed for the different acts prescribedare stated in section 4 which
society cannot protect its very structure from armedinternal attack, ...no requires that membershipin the Communist Party of the Philippines, to be
subordinate value can be protected" 40 As Chief Justice Vinson so aptly unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed,
said in Dennis vs. United States: 41 the first "whereas" clause makes clear thatthe overthrow contemplated is
"overthrow not only by forceand violence but also be deceit, subversion and
other illegalmeans." The absence of this qualificatio in section 2 appearsto
Whatever theoretical merit there may be to the be due more to an oversight rather than to deliberateomission.
argumentthat there is a 'right' to rebellion against
dictatorial governmentsis without force where the existing
structure of government provides for peaceful and orderly
Moreover, the word "overthrow' sufficiently connotesthe use of violent and Shall be fined not more than $20,000 or imprisoned
other illegal means. Only in a metaphoricalsense may one speak of peaceful notmore than twenty years, or both, and shall be ineligible
overthrow ofgovernments, and certainly the law does not speak in for emplymentby the United States or any department or
metaphors.In the case of the Anti-Subversion Act, the use ofthe word agencythereof, for the five years next following his
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly conviction.... 46
delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under In sustaining the validity of this provision, the "Court said in Scales vs.
thecontrol and domination of an alien power." What thisCourt once said in a United States: 47
prosecution for sedition is appropos: "The language used by the appellant
clearly imported anoverthrow of the Government by violence, and it should
beinterpreted in the plain and obvious sense in which it wasevidently It was settled in Dennis that advocacy with which we
intended to be understood. The word 'overthrow'could not have been arehere concerned is not constitutionally protected
intended as referring to an ordinarychange by the exercise of the elective speech, and itwas further established that a combination
franchise. The useof the whip [which the accused exhorted his audience to to promote suchadvocacy, albeit under the aegis of what
useagainst the Constabulary], an instrument designed toleave marks on the purports to be a politicalparty, is not such association as is
sides of adversaries, is inconsistentwith the mild interpretation which the protected by the firstAmendment. We can discern no
appellant wouldhave us impute to the language." 45 reason why membership, whenit constitutes a purposeful
form of complicity in a group engagingin this same
forbidden advocacy, should receive anygreater degree of
IV. The Act and the Guaranty of Free Expression protection from the guarantees of that Amendment.
As already pointed out, the Act is aimed against conspiracies to overthrow Moreover, as was held in another case, where the problemsof
the Government by force, violence orother illegal means. Whatever interest accommodating the exigencies of self-preservationand the values of liberty
in freedom of speechand freedom of association is infringed by the are as complex and intricate as inthe situation described in the legislative
prohibitionagainst knowing membership in the Communist Party ofthe findings stated inthe U.S. Federal Subversive Activities Control Act of
Philippines, is so indirect and so insubstantial as to beclearly and heavily 1950,the legislative judgment as to how that threat may best bemet
outweighed by the overriding considerationsof national security and the consistently with the safeguards of personal freedomsis not to be set aside
preservartion of democraticinstitutions in his country. merely because the judgment of judgeswould, in the first instance, have
chosen other methods. 48 For in truth, legislation, "whether it restrains
The membership clause of the U.S. Federal Smith Actis similar in many freedom tohire or freedom to speak, is itself an effort at
respects to the membership provision ofthe Anti-Subversion Act. The former compromisebetween the claims of the social order and individual
provides: freedom,and when the legislative compromise in either case
isbrought to the judicial test the court stands one step removedfrom
Whoever organizes or helps or attempts to organize the conflict and its resolution through law." 49
anysociety, group, or assembly of persons who teach,
advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a V. The Act and its Title
member of, or affiliatedwith, any such society, group or
assembly of persons, knowingthe purpose thereof — The respondent Tayag invokes the constitutional commandthat "no bill which
may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the VI. Conclusion and Guidelines
last proviso of section 4 which reads:
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we
And provided, finally, That one who conspires with cannot overemphasize the needfor prudence and circumspection in its
anyother person to overthrow the Government of the enforcement, operatingas it does in the sensitive area of freedom of
Republic ofthe Philippines, or the government of any of its expressionand belief. Accordingly, we set the following basic guidelines to
political subdivisionsby force, violence, deceit, subversion be observed in any prosecution under the Act.The Government, in addition
or illegal means,for the purpose of placing such to proving such circumstancesas may affect liability, must establish the
Government or political subdivisionunder the control and following elementsof the crime of joining the Communist Party of the
domination of any lien power, shallbe punished by prision Philippinesor any other subversive association:
correccionalto prision mayor with allthe accessory
penalties provided therefor in the same code. (1) In the case of subversive organizations other thanthe Communist Party of
the Philippines, (a) that thepurpose of the organization is to overthrow the
It is argued that the said proviso, in reality, punishes notonly membership in presentGovernment of the Philippines and to establish in thiscountry a
the Communist Party of the Philippinesor similar associations, but as well totalitarian regime under the domination of aforeign power; (b) that the
"any conspiracyby two persons to overthrow the national or any local accused joined such organization;and (c) that he did so knowingly, willfully
governmentby illegal means, even if their intent is not to establisha and byovert acts; and
totalitarian regime, burt a democratic regime, evenif their purpose is not to
place the nation under an aliencommunist power, but under an alien (2) In the case of the Communist Party of the Philippines,(a) that the CPP
democratic power likethe United States or England or Malaysia or even an continues to pursue the objectiveswhich led Congress in 1957 to declare it to
anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a
The Act, in addition to its main title ("An Act to Outlawthe Communist Party foreign power; (b) that the accused joined theCPP; and (c) that he did so
of the Philippines and SimilarAssociations, Penalizing Membership Therein, willfully, knowingly and byovert acts.
and forOther Purposes"), has a short title. Section 1 providesthat "This Act
shall be known as the We refrain from making any pronouncement as to thecrime or remaining a
Anti-Subversion Act."Together with the main title, the short title of the member of the Communist Party ofthe Philippines or of any other subversive
statuteunequivocally indicates that the subject matter is subversionin general association: weleave this matter to future determination.
which has for its fundamental purpose the substitutionof a foreign totalitarian
regime in place of theexisting Government and not merely subversion by
Communistconspiracies.. ACCORDINGLY, the questioned resolution of September15, 1970 is set
aside, and these two cases are herebyremanded to the court a quo for trial
on the merits. Costs de oficio.
The title of a bill need not be a catalogue or an indexof its contents, and
need not recite the details of the Act. 51 It is a valid title if it indicates in
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
broad but clear termsthe nature, scope, and consequences of the
proposed lawand its operation. 52 A narrow or technical construction
isto be avoided, and the statute will be read fairly and reasonablyin Concepcion, C.J., concurs in the result.
order not to thwart the legislative intent. We holdthat the Anti-
Subversion Act fully satisfies these requirements. Makasiar and Antonio, JJ., took no part.
complexities in coping withsuch problems. There must be then, and I am the
firstto recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the
most realistic, I feel that there was an insufficientappreciation of the
compulsion of the constitutionalcommands against bills of attainder and
Separate Opinions abridgmentof free speech. I am comforted by the thought that evenhad my
view prevailed, all that it would mean is that anew legislation, more in
comformity to my way of thinkingto what is ordained by the fundamental law,
wouldhave to be enacted. No valid fear need be entertained thenthat a
setback would be occasioned to legitilate state effortsto stem the tide of
FERNANDO, J., dissenting: subversive activities, in whateverform manifested.
It is with regard that I find myself unable to join therest of my brethren in the 2. The starting point in any inquiry as to the significanceof the bill of attainder
decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to clause is the meaning attachedto it by the Constitutional Convention of 1934
be admittedthat the learned and scholarly opinbion of Justice Castro and by the people who adopted it. As was explained by the then Delegate,
hasthe impress of conscientious and painstaking scrutiny ofthe later Justice, Jose P. Laurel in his address on November19, 1934 as
constitutional issues raised. What is more, the stressin the Chairman of the Committee on the Bill of Rights quoted in the opinion of the
concluding portion thereof on basic guidelines thatwill assure in the Court: "A billof attainder is a legislative act which inflicts punishment without
trial of those prosecuted under suchAct respect for their judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In
England, the Bill of Attainder was an act of Parliament by which a man was
constitutional rights is to be commended.Nonetheless, my own
tried, convictedand sentenced to death without a jury, without ahearing in
reading of the decisionscited, interpreting the bill of attainder court, without hearing the witnesses againsthim and without regard to the
clause 2 coupled withthe fears, perhaps induced by a too- rules of evidence. His bloodwas attainted or corrupted, rendering him devoid
latitudinarian constructionof the guarantees of freedom of belief and of allheritable quality — of acquiring and disposing property bydescent. (Ex
expression 3 as well as freedom of association 4 as to impermissible parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
inroadsto which they may be exposed, compels a than death, the act wasknown as a 'bill of pains and penalties.' Bills of
differentconclusion. Hence this dissent. attainder, like ex post facto laws, were favorite methods of Stuartoppression.
Once, the name of Thomas Jefferson was includedin a bill of attainder
presented to Parliament becauseof his reform activities." 5Two American
1. There is to be sure no thought on my part that theequally pressing
concern of state safety and security shouldbe ignored. The political branches SupremeCourt decision were thus in the minds of the framers.They
of the governmentwould lay themselves oepn to a justifiable indictment are Cummings v. Missouri 6 and Ex parteGarland. 7 They speak
fornegligence had they been remiss in their obligation tosafeguard the nation unequivocally. Legislative acts, no matter whattheir form, that apply
against its sworn enemies. In a simplerera, where the overthrow of the either to named individuals or easilyascertainable members of a
government wasusually through the rising up in arms, with weapons farless group in such a way as to inflicton them punishment amounting to a
sophisticated than those now in existence, there wasno constitutional issue deprivation ofany right, civil or political, without judicial trial are billsof
of the magnitude that now confrontsus. Force has to be met with force. It attainder prohibited by the Constitution. 8
was as clearcutas that. Advances in science as well as more subtlemethods
of inducing disloyalty and weakening the senseof allegiance have introduced
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest beequally open to objection. And further, it these clauseshad
for refusing to take the loyalty oath requiredby the state Constitution declared that all such priests and clergymen shouldbe so held guilty,
of Missouri of 1865. Undersuch a provision, lawyers, doctors, and be thus deprived, provided they didnot, by a day designated, do
ministers, and otherprofessionals must disavow that they had ever, certain specified acts, theywould be no less within the inhibition of
"by act orword," manifested a "desire" for the success of the the Federal Constitution.In all these cases there would be the
nation'senemies or a sympathy" with the rebels of the AmericanCivil legislativeenactment creating the deprivation, without any of
War. If they swore falsely, they were guilty of perjury.If they engaged theordinary forms and guards provided for the security ofthe citizen
in their professions without theoath, they were criminally liable. The in the administration of justice by the establishedtribunales." 10
United States Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment On the very same day that the ruling in Cummings washanded down, Ex
withoutjudicial trial. The deprivation of any right, civil orpolitical, parte Garland 11 was also decided. Thatwas a motion for leave to
previously enjoyed, amounted to a punishment.Why such a practrice as an attorney beforethe American Supreme Court.
conclusion was unavoidable was explained inthe opinion of Justice Petitioner Garland wasadmitted to such bar at the December term of
Field thus: "A bill of attainder isa legislative act, which inflicts 1860. Underthe previous rules of such Court, all that was
punishment without a judicialtrial. If the punishment be less than necessarywas that the applicant have three years practice in the
death, the actis termed a bill of pains and penalties. Within the statecourts to which he belonged. In March 1865, the rule
meaningof the Constitution, bills of attainder include bills ofpains and waschanged by the addition of a clause requiring that an oathbe
penalties. In these cases the legislative body, inaddition to its taken under the Congressional acts of 1862 and 1865to the effect
legitimate functions, exercises the powersand office of judge; it that such candidate for admission to the barhad never voluntarily
assumes, in the language of thetextbooks, judicial magistracy; it borne arms against the UnitedStates. Petitioner Garland could not in
pronounces upon theguilt of the party, without any of the forms or conscience subscribeto such an oath, but he was able to show a
safeguardsof trial; it determines the sufficiency of the proofs presidentialpardon extended on July 15, 1865. With such actof
produced,whether conformable to the rules of evidence orotherwise; clemency, he moved that he be allowed to continue inpractice
and it fixes the degree of punishment in accordancewith its own contending that the test oath requirement wasunconstitutional as a
notions of the enormity of the offense. ... If the clauses of the 2d bill of attainder and that at any rate,he was pardoned. The same
article of the Constitutionof Missouri, to which we have referred, had ruling was announced by theCourt again through Justice Field. Thus:
in termsdeclared that Mr. Cummings was guilty, or should be "In the exclusionwhich the statute adjudges, it imposes a
heldguilty, of having been in armed hostility to the UnitedStates, or of punishmentfor some of the acts specified which were not
having entered that state to avoid beingenrolled or drafted into the punishableat the time they were committedl; and for other of the
military service of the UnitedStates, and, therefore, should be actsit adds a new punishment to that before prescribed, andit is thus
deprived of the right topreach as a priest of the Catholic church, or to brought within the further inhibition of the Consitutionagainst the
teach inany institution of learning, there could be no question thatthe passage of an ex post facto law. Inthe case of Cummings v.
clauses would constitute a bill of attainder within themeaning of the Missouri, just decided, ... wehave had occasion to consider at length
Federal Constitution. If these clauses, insteadof mentioning his the meaning of abill of attainder and of an ex post factolaw in the
name, had declared that all priestsand clergymen within the state of clauseof the Constitution forbidding their passage by the states,and it
Missouri were guiltyof these acts, or should be held guilty of them, is unnecessary to repeat here what we there said.A like prohibition is
and hencebe subjected to the like deprivation, the clause would contained in the Constitution againstenactments of this kind by
Congress; and the argumentpresented in that case against certain decided, the Court, in Exparte Garland, also held invalid on the same
clauses of the Constitutionof Missouri is equally applicable to the act grounds anAct of Congress which required attorneys practicing beforethis
ofCongress under consideration in this case." 12 Court to take a similar oath. Neither of thesecases has ever been overruled.
They stand for the propositionthat legislative acts, no matter what their
form,that apply either to named individuals or to easily
There was a reiteration of the Cummings and Garlanddoctrine in United ascertainablemembers of a group in such a way as to inflictpunishment on
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 them without a judicial trial are billsof attainder prohibited by the Constitution.
the respondents, Lovett,Watson, and Dodd, were and had been for Adherenceto this principle requires invalidation of Section 304. Wedo adhere
several yearsworking for the government. The government to it." 14
agencies,which had lawfully employed them, were fully satisfiedwith
the quality of their work and wished to keep thememployed on their United States v. Brown 15 a 1965 decision was the firstcase to review a
jobs. Over their protest, Congress providedin Section 304 of the conviction under the Labor-ManagementReporting and Disclosure
Urgent Deficiency AppropriationAct of 1943, by way of an Act of 1959, making it a crimefor a member of the Communist Party
amendment attached to theHouse Bill, that after November 15, 1943, to serve as anofficer ir, except in clerical or custodial positions,
no salary orcompensation should be paid respondent out of any anemployee of a labor union. Respondent Brown, a longshoremanon
moneythen or thereafter appropriated except for services as jurorsor the San Francisco docks, and an open andavowed Communist, for
members of the armed forces, unless they wereprior to November more than a quarter of a centurywas elected to the Executive Board
15, 1943, again appointed to jobs bythe President with the advide of Local 10 of theInternational Longshoremen's and
and consent of the Senate.Notwithstanding such Congressional Warehousemen's Unionfor consecutive one-year terms in 1959,
enactment, and thefailure of the President to reappoint the 1960, and 1961.On May 24, 1961, respondent was charged in a one-
respondents, theagencies, kept all the respondents at work on their countindictment returned in a district court of California withservicing
jobs forvarying periods after November 15, 1943, but their as a member of an executive board of a labororganization while a
compensationwas discontinued after that date. Respondentsbrought member of the Communist Party, inwillful violation of the above
this action in the Court of Claims for the salariesto which they felt provision. The question ofits validity under the bill of attainder clause
entitled. The Ameican Supreme Courtstated that its inquiry was thus was thusproperly raised for adjudication. While convicted in thelower
confined to whether theaction in the light of proper construction of court, the Court of Appeals for the Ninth Circuitreversed. It was
the Act presenteda justificiable controversy, and, if so, whether sustained by the American SupremeCourt. As noted in the opinion by
Section304 is a bill of attainder insofar as the respondents Chief Justice Warren,"the wide variation in form, purpose and effect
wereconcerned. of ante-Constitutionbills of attainder indicates that the properscope of
the Bill of Attainder Clause, and its relevance tocontemporary
After holding that there was a juditiciable, view theAmerican Supreme Court problems, must ultimately be sought by attemptingto discern the
in an opinion by Justice Blackcategorically affirmed: "We hold that Section reasons for its inclusion in theConstitution, and the evils it was
304 fallsprecisely within the category of Congressional actionswhich the desinged to eliminate.The best available evidence, the writings of the
Constitution barred by providing that 'No Billof Attainder or ex post Law shall architectsof our constitutional system, indicates that the Bill
be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of
ofAttainder Clause was inteded not as a narrow, technical(and
attainder is a legislative act which inflicts punishmentwithout a judicial trial. If
the punishment be lessthan death, the act is termed a bill of pains and therefore soon to be outmoded) prohibition, but ratheras an
penalties.Within the meaning of the Constitution, bills of attainderinclude bills implementation of the separation of powers, ageneral safeguard
of pains and penalties.' ... On the sameday the Cummings case was against legislative exercise of the judicialfunction, or more simply —
trial by legislature." 16 Then after referring to Cummings, Garland, and opens the record for the reviewing court'sdetermination whether the
Lovett,Chief Justice Warren continued: "Under the line of casesjust administrative findings as tofact are supported by the preponderance
outlined, Sec. 504 of the Labor Management Reportingand of the evidence.Present activity constitutes an operative element to
Disclosure Act plainly constitutes a bill of attainder. Congress whichthe statute attaches legal consequences, not merely a pointof
undoubtedly possesses power under theCommerce Clause to enact reference for the ascertainment of particularly personsineluctably
legislation designed to keepfrom positions affecting interstate designated by the legislature." 19
commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the The teaching of the above cases, which I find highlypersuasive considering
authoritygranted it by the Constitution. The statute does not setforth what appeared to be in the mindsof the framers of the 1934 Constitutional
a generally applicable rule decreeing that any personwho commits Conventionyields for me the conclusion that the Anti-SubversionAct falls
certain acts or possesses certain characteristics (acts and within the ban of the bill of attainder clause. Itshould be noted that three
characteristics whhich, in Congress'view, make them likely to initiate subsequent cases upholding theCummings and Garland doctrine were
political strikes) shallnot hold union office, and leave to courts and likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with
juries thejob of deciding what persons have committed the
them especially in the light of the categoricallanguage appearing in Lovett.
specifiedacts or possessed the specified characteristics. Instead,it This is not to lose sightof the qualification that for them could deprive such
designates in no uncertain terms the personswho possess the fearec aholding of its explicit character as shown by this excerptfrom the opinion of
characteristics and therefore cannothold union office without the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
incurring criminal liability — members of the Communist Party." 17 totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is
Even Communist Party v. Subversive Activities ControlBoard, 18
where the that their guilt still has to bejudicially estblished. The Government has yet to
proveat the trial that the accused joined the Party knowingly,willfully and by
provision of the Subversive ActivitiesControl Act of 1950 requiring the overt acts, and that they joined the Partyknowing its subversive character
Communist Party ofthe United States to register was sustained, the and with specific intentto further its objective, i.e., to overthrow the existing
opinionof Justice Frankfurter for the Court, speaking for a five- Governmentby force, deceit, and other illegal means and placeit under the
manmajority, did indicate adherence to the Cummingsprinciple. Had control and domination of a foreign power. 20While not implausible, I find
the American Communist Party been outlawed,the outcome certainly difficulty in yielding acceptance.In Cummings, there was a criminal
would have been different.Thus: "The Act is not a bill of attainder. It prosecution ofthe Catholic priest who refused to take the loyalty oath.Again
attaches notto specified organizations but to described activities in Brown, there was an indictment of the laborleader who, judging by his
inwhich an organization may or may not engage. The singlingout of membership in the CommunistParty, did transgress the statutory provision
an individual for legislatively prescribed punishmentconstitutes an subsequentlyfound offensive to the bill attainder clause. If the constructionI
would place on theoff-repeated pronouncementof the American Supreme
attainder whether the individualis called by name or described in Court is correct, then the merefact that a criminal case would have to be
terms of conduct which,because it is past conduct, operates only as instituted wouldnot save the statute. It does seem clear to me that fromthe
a designationof particular persons. ... The Subversive Activities very title of the Anti-Subversion Act, "to outlaw the Communist Party of the
ControlAct is not of that king. It requires the registrationonly of Philippines and similar associations,"not to mention other specific provisions,
organizations which, after the date of the Act,are found to be under the taintof invalidity is quite marked. Hence, my inability to concurin the
the direction, domination, or controlof certain foreign powers and to judgment reached as the statute not suffering fromany fatal infirmity in view
operate primarily toadvance certain objectives. This finding must be of the Constitutional prohibitionagainst bills of attainder.
madeafter full administrative hearing, subject to judicial reviewwhich
3. This brings me to the question of the alleged repugnancyof the Anti- theexpression of heresy at any time and place to be absolute — for
Subversion Act to the intellectual libertysafeguarded by the Constitution in even the right to non-heretical speech cannot beabsolute — it still
terms of the free speechand free assocition guarantees. 21 It is to be seems wise to tolerate the expression evenof Communist, fascist
admitted thatat the time of the enactment of Republic Act No. and other heresies, lest in outlawingthem we include other kings of
1700,the threat that Communism, the Russian brand then, didpose heresies, and deprive ourselvesof the opportunity to acquite possibly
was a painful reality for Congressional leaders andthe then sounder ideasthan our own." 23
President. Its shadow fell squarely across thelives of all. Subversion
then could neither be denied notdisparaged. There was, in the expert The line is to be drawn, however, where the wordsamount to an incitement
opinion of those conversantwith such mattes, a danger to out to commit the crime of seditionor rebellion. The state has been reached, to
national existenceof no mean character. Nonetheless, the remedies follow theformulation of Cardozo, where thought merges into action.Thus is
toward off such menace must not be repugnant to our loyalty shown to the freedom of speech or pressordained by the Constitution.
Constitution.We are legally precluded from acting in anyother way. It does not bar the expressionof views affecting the very life of the state,
The apprehension justly felt is no warrant forthrowing to the discard even ifopposed to its fundamental presuppositions. It allows, ifit does not
fundamental guarantees. Vigilantwe had to be, but not at the require as a matter of fact, that unorthodoxideas be freely ventilated and fully
expense of constitutional ideals. heard. Dissent is notdisloyalty.
One of them, certainly highly-prized of the utmost significance,is the right to Such an approach is reinforced by the well-settled constitutionalprinciple
dissent. One can differ, evenobject; one can express dissatisfaction with "that even though the governmental purposesbe legitimate and substantial,
things as theyare. There are timew when one not only can but must.Such they cannot be pursuedby means that broadly stifle fundamental
dissent can take the form of the most critical andthe most disparaging personalliberties when the end can be more narrowly achieved.For precision
remarks. They may give offense tothose in authority, to those who wield of regulation is the touchstone in an areaso closely related to our most
powe and influence.Nevertheless, they are entitled to constitutional precious freedoms." 24 This is so for "a governmental purpose to control
protection.Insofar as the content of such dissent is concerned, thelimits are or prevent activities constitutionally subject to state regulation may
hardly discernible. It cannot be confined totrivial matters or to such as are notbe achieved by means which sweep unnecessarily broadlyand
devoid of too much significance.It can reach the heart of things. Such thereby invade the area of protected freedoms." 25 It isindispensable
dissentmay, for those not so adventurous in the realm of ideas,possess a then that "an over breadth" in the applicabilityof the statute be
subversive tinge. Even those who oppose a democraticform of government avoided. If such be the case, then theline dividing the valid from the
cannot be silenced. This is trueespecially in centers of learning where constitutionally infirm hasbeen crossed. That for me is the conclusion
scholars competentin their line may, as a result of their studies, assert thata to be drawnfrom the wording of the Anti-Subversion Act.
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the lawfulness
of their exercisingthis right to dissent to the point of advocary of such There is to my mind support for the stand I take inthe dissent of Justice
adrastic change. Any citizen may do so without fear thatthereby he incurs Black in the Communist Party casediscussed above. What is to be kept in
the risk of a penal sanction. That ismerely to affirm the truth of this ringing view is that a legislativemeasure certainly less drastic in its treatment ofthe
declaration fromJefferson: "If there be any among us who would wish admittedly serious Communist problem was found inthe opinion of this noted
todissolve this union or to change its republican form, letthem stand jurist offensive to the FirstAmendment of the American Constitution
undisturbed as monuments of the safety withwhich error of opinion may be safeguardingfree speech. Thus: "If there is one thing certain aboutthe First
tolerated where reason isleft free to combat it." 22 As was so well put by Amendment it is that this Amendment was designedto guarantee the freest
the philosopher,Sidney Hook: "Without holding the right to interchange of ideas aboutall public matters and that, of course, means the
interchangeof all ideas, however such ideas may be viewed inother countries
and whatever change in the existing structureof government it may be hoped violation of valid lawsbut withheld any power to punish people for
that these ideas willbring about. Now, when this country is trying to nothing morethan advocacy of their views." 27
spreadthe high ideals of democracy all over the world — ideals that are
revolutionary in many countries — seems to be aparticularly inappropriate
time to stifle First Amendmentfreedoms in this country. The same arguments With the sentiments thus expressed uppermost in mymind and congenial to
that areused to justify the outlawry of Communist ideas here couldbe used to my way of thinking, I cannot sharethe conclusion reached by my breathren
as to the Anti-Subversion Act successfully meeting the test of validity onfree
justify an outlawry of the ideas of democracyin other countries." 26 Further
speech and freedom of association grounds.
he stated: "I believe with theFramers of the First Amendment that the
internal securityof a nation like ours does not and cannot be made
4. It could be that this approach to the constitutionalquestions involved arises
todepend upon the use of force by Government to make allthe
from an appraisal of the challengedstatute which for me is susceptible of an
beliefs and opinions of the people fit into a commonmold on any interpretationthat it does represent a defeatist attitude on thepart of those of
single subject. Such enforced conformity ofthought would tend only us, who are devotees at the shrine of aliberal-democratic state. That
to deprive our people of the boldspirit of adventure and progress certainly could not havebeen the thought of its framers; nonetheless, such
which has brought thisNation to its present greatness. The creation an assumptionis not devoid of plausibility for why resort tothis extreme
of publicopinion by groups, organizations, societies, clubs, and measure susceptible as it is to what apparentlyare not unfounded attacks on
partieshas been and is a necessary part of our democraticsociety. constitutional grounds?Is this not to ignore what previously was accepted as
Such groups, like the Sons of Liberty and theAmerican anobvious truth, namely that the light of liberalism sendsits shafts in many
Corresponding Societies, played a large part increating sentiment in directions? It can illuminate, and itcan win the hearts and minds of men. It if
difficult forme to accept the view then that a resort to outlawry
this country that led the people ofthe Colonies to want a nation of
isindispensable, that suppression is the only answer to whatis an admitted
their own. The Father ofthe Constitution — James Madison — said, evil. There could have been a greater exposureof the undesirability of the
in speakingof the Sedition Act aimed at crushing the Jefferson communist creed, itscontradictions and arbitrarines, its lack of fealty to
Party,that had that law been in effect during the period beforethe reason,its inculcation of disloyalty, and its subservience tocentralized
Revolution, the United States might well have continuedto be dictation that brooks no opposition. It is thus,in a realistic sense, a
'miserable colonies, groaning under a foreign yoke.'In my judgment, manifestation of the fear of freethought and the will to suppress it. For better,
this country's internal security can betterbe served by depending of course,is the propaganda of the deed. What the communists promise,this
upon the affection of the peoplethan by attempting to instill them with government can fulfill. It is up to it then to takeremedial measures to alleviate
fear and dreadof the power of Government. The Communist Party the condition of our countrymenwhose lives are in a condition of destitution
andmisery. It may not be able to change matters radically.At least, it should
hasnever been more than a small group in this country. Andits
take earnest steps in that direction.What is important for those at the bottom
numbers had been dwindling even before the Governmentbegan its of the economicpyramid is that they are not denied the opportunity for
campaign to destroy the Party by force oflaw. This was because a abetter life. If they, or at least their children, cannot evenlook forward to that,
vast majority of the Americanpeople were against the Party's policies then a constitutional regime is nothingbut a mockery and a tragic illusion.
and overwhelminglyrejected its candidates year after year. That is Such a response,I am optimistic enough to believe, has the merit of
the trueAmerican way of securing this Nation against thinning,if not completely eliminating, the embattled ranksand outposts of
dangerousideas. Of course that is not the way to protect the ignorance, fanaticism and error. That forme would be more in accordance
Nationagainst actions of violence and treason. The Foundersdrew a with the basic propositionof our polity. This is not therefore to preach a
distinction in our Constitution which we would bewise to follow. They doctrine of object surrender to the forces apparently bent on the adoption of
a way of life so totally opposed to the deeply felt traditions of our people.
gave the Government the fullest powerto prosecute overt actions in
This is, for me at least, an affirmation of the vitality of the democratic creed,
with an expression of regret that it could not have been more impressively of the magnitude that now confrontsus. Force has to be met with force. It
set forth in language worthy of the subject. was as clearcutas that. Advances in science as well as more subtlemethods
of inducing disloyalty and weakening the senseof allegiance have introduced
It is in the light of the views above expressed that I find myself unable to complexities in coping withsuch problems. There must be then, and I am the
yield concurrence to the ably-written opinion of Justice Castro for the Court firstto recognize it, a greater understanding for the governmentalresponde to
sustaining the validity of the Anti-Subversion Act. situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the
most realistic, I feel that there was an insufficientappreciation of the
compulsion of the constitutionalcommands against bills of attainder and
abridgmentof free speech. I am comforted by the thought that evenhad my
view prevailed, all that it would mean is that anew legislation, more in
Separate Opinions comformity to my way of thinkingto what is ordained by the fundamental law,
wouldhave to be enacted. No valid fear need be entertained thenthat a
setback would be occasioned to legitilate state effortsto stem the tide of
FERNANDO, J., dissenting: subversive activities, in whateverform manifested.
It is with regard that I find myself unable to join therest of my brethren in the 2. The starting point in any inquiry as to the significanceof the bill of attainder
decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to clause is the meaning attachedto it by the Constitutional Convention of 1934
be admittedthat the learned and scholarly opinbion of Justice Castro and by the people who adopted it. As was explained by the then Delegate,
hasthe impress of conscientious and painstaking scrutiny ofthe later Justice, Jose P. Laurel in his address on November19, 1934 as
constitutional issues raised. What is more, the stressin the Chairman of the Committee on the Bill of Rights quoted in the opinion of the
concluding portion thereof on basic guidelines thatwill assure in the Court: "A billof attainder is a legislative act which inflicts punishment without
trial of those prosecuted under suchAct respect for their judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In
England, the Bill of Attainder was an act of Parliament by which a man was
constitutional rights is to be commended.Nonetheless, my own
tried, convictedand sentenced to death without a jury, without ahearing in
reading of the decisionscited, interpreting the bill of attainder court, without hearing the witnesses againsthim and without regard to the
clause 2 coupled withthe fears, perhaps induced by a too- rules of evidence. His bloodwas attainted or corrupted, rendering him devoid
latitudinarian constructionof the guarantees of freedom of belief and of allheritable quality — of acquiring and disposing property bydescent. (Ex
expression 3 as well as freedom of association 4 as to impermissible parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
inroadsto which they may be exposed, compels a than death, the act wasknown as a 'bill of pains and penalties.' Bills of
differentconclusion. Hence this dissent. attainder, like ex post facto laws, were favorite methods of Stuartoppression.
Once, the name of Thomas Jefferson was includedin a bill of attainder
presented to Parliament becauseof his reform activities." 5Two American
1. There is to be sure no thought on my part that theequally pressing
concern of state safety and security shouldbe ignored. The political branches SupremeCourt decision were thus in the minds of the framers.They
of the governmentwould lay themselves oepn to a justifiable indictment are Cummings v. Missouri 6 and Ex parteGarland. 7 They speak
fornegligence had they been remiss in their obligation tosafeguard the nation unequivocally. Legislative acts, no matter whattheir form, that apply
against its sworn enemies. In a simplerera, where the overthrow of the either to named individuals or easilyascertainable members of a
government wasusually through the rising up in arms, with weapons farless group in such a way as to inflicton them punishment amounting to a
sophisticated than those now in existence, there wasno constitutional issue
deprivation ofany right, civil or political, without judicial trial are billsof name, had declared that all priestsand clergymen within the state of
attainder prohibited by the Constitution. 8 Missouri were guiltyof these acts, or should be held guilty of them,
and hencebe subjected to the like deprivation, the clause would
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest beequally open to objection. And further, it these clauseshad
for refusing to take the loyalty oath requiredby the state Constitution declared that all such priests and clergymen shouldbe so held guilty,
of Missouri of 1865. Undersuch a provision, lawyers, doctors, and be thus deprived, provided they didnot, by a day designated, do
ministers, and otherprofessionals must disavow that they had ever, certain specified acts, theywould be no less within the inhibition of
"by act orword," manifested a "desire" for the success of the the Federal Constitution.In all these cases there would be the
nation'senemies or a sympathy" with the rebels of the AmericanCivil legislativeenactment creating the deprivation, without any of
War. If they swore falsely, they were guilty of perjury.If they engaged theordinary forms and guards provided for the security ofthe citizen
in their professions without theoath, they were criminally liable. The in the administration of justice by the establishedtribunales." 10
United States Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment On the very same day that the ruling in Cummings washanded down, Ex
withoutjudicial trial. The deprivation of any right, civil orpolitical, parte Garland 11 was also decided. Thatwas a motion for leave to
previously enjoyed, amounted to a punishment.Why such a practrice as an attorney beforethe American Supreme Court.
conclusion was unavoidable was explained inthe opinion of Justice Petitioner Garland wasadmitted to such bar at the December term of
Field thus: "A bill of attainder isa legislative act, which inflicts 1860. Underthe previous rules of such Court, all that was
punishment without a judicialtrial. If the punishment be less than necessarywas that the applicant have three years practice in the
death, the actis termed a bill of pains and penalties. Within the statecourts to which he belonged. In March 1865, the rule
meaningof the Constitution, bills of attainder include bills ofpains and waschanged by the addition of a clause requiring that an oathbe
penalties. In these cases the legislative body, inaddition to its taken under the Congressional acts of 1862 and 1865to the effect
legitimate functions, exercises the powersand office of judge; it that such candidate for admission to the barhad never voluntarily
assumes, in the language of thetextbooks, judicial magistracy; it borne arms against the UnitedStates. Petitioner Garland could not in
pronounces upon theguilt of the party, without any of the forms or conscience subscribeto such an oath, but he was able to show a
safeguardsof trial; it determines the sufficiency of the proofs presidentialpardon extended on July 15, 1865. With such actof
produced,whether conformable to the rules of evidence orotherwise; clemency, he moved that he be allowed to continue inpractice
and it fixes the degree of punishment in accordancewith its own contending that the test oath requirement wasunconstitutional as a
notions of the enormity of the offense. ... If the clauses of the 2d bill of attainder and that at any rate,he was pardoned. The same
article of the Constitutionof Missouri, to which we have referred, had ruling was announced by theCourt again through Justice Field. Thus:
in termsdeclared that Mr. Cummings was guilty, or should be "In the exclusionwhich the statute adjudges, it imposes a
heldguilty, of having been in armed hostility to the UnitedStates, or of punishmentfor some of the acts specified which were not
having entered that state to avoid beingenrolled or drafted into the punishableat the time they were committedl; and for other of the
military service of the UnitedStates, and, therefore, should be actsit adds a new punishment to that before prescribed, andit is thus
deprived of the right topreach as a priest of the Catholic church, or to brought within the further inhibition of the Consitutionagainst the
teach inany institution of learning, there could be no question thatthe passage of an ex post facto law. Inthe case of Cummings v.
clauses would constitute a bill of attainder within themeaning of the Missouri, just decided, ... wehave had occasion to consider at length
Federal Constitution. If these clauses, insteadof mentioning his the meaning of abill of attainder and of an ex post factolaw in the
clauseof the Constitution forbidding their passage by the states,and it attainder is a legislative act which inflicts punishmentwithout a judicial trial. If
is unnecessary to repeat here what we there said.A like prohibition is the punishment be lessthan death, the act is termed a bill of pains and
contained in the Constitution againstenactments of this kind by penalties.Within the meaning of the Constitution, bills of attainderinclude bills
Congress; and the argumentpresented in that case against certain of pains and penalties.' ... On the sameday the Cummings case was
decided, the Court, in Exparte Garland, also held invalid on the same
clauses of the Constitutionof Missouri is equally applicable to the act grounds anAct of Congress which required attorneys practicing beforethis
ofCongress under consideration in this case." 12 Court to take a similar oath. Neither of thesecases has ever been overruled.
They stand for the propositionthat legislative acts, no matter what their
There was a reiteration of the Cummings and Garlanddoctrine in United form,that apply either to named individuals or to easily
States v. Lovett, 13 decided in 1946.There it was shown that in 1943 ascertainablemembers of a group in such a way as to inflictpunishment on
the respondents, Lovett,Watson, and Dodd, were and had been for them without a judicial trial are billsof attainder prohibited by the Constitution.
several yearsworking for the government. The government Adherenceto this principle requires invalidation of Section 304. Wedo adhere
to it." 14
agencies,which had lawfully employed them, were fully satisfiedwith
the quality of their work and wished to keep thememployed on their
jobs. Over their protest, Congress providedin Section 304 of the United States v. Brown 15 a 1965 decision was the firstcase to review a
Urgent Deficiency AppropriationAct of 1943, by way of an conviction under the Labor-ManagementReporting and Disclosure
amendment attached to theHouse Bill, that after November 15, 1943, Act of 1959, making it a crimefor a member of the Communist Party
no salary orcompensation should be paid respondent out of any to serve as anofficer ir, except in clerical or custodial positions,
moneythen or thereafter appropriated except for services as jurorsor anemployee of a labor union. Respondent Brown, a longshoremanon
members of the armed forces, unless they wereprior to November the San Francisco docks, and an open andavowed Communist, for
15, 1943, again appointed to jobs bythe President with the advide more than a quarter of a centurywas elected to the Executive Board
and consent of the Senate.Notwithstanding such Congressional of Local 10 of theInternational Longshoremen's and
enactment, and thefailure of the President to reappoint the Warehousemen's Unionfor consecutive one-year terms in 1959,
respondents, theagencies, kept all the respondents at work on their 1960, and 1961.On May 24, 1961, respondent was charged in a one-
jobs forvarying periods after November 15, 1943, but their countindictment returned in a district court of California withservicing
compensationwas discontinued after that date. Respondentsbrought as a member of an executive board of a labororganization while a
this action in the Court of Claims for the salariesto which they felt member of the Communist Party, inwillful violation of the above
entitled. The Ameican Supreme Courtstated that its inquiry was thus provision. The question ofits validity under the bill of attainder clause
confined to whether theaction in the light of proper construction of was thusproperly raised for adjudication. While convicted in thelower
the Act presenteda justificiable controversy, and, if so, whether court, the Court of Appeals for the Ninth Circuitreversed. It was
Section304 is a bill of attainder insofar as the respondents sustained by the American SupremeCourt. As noted in the opinion by
wereconcerned. Chief Justice Warren,"the wide variation in form, purpose and effect
of ante-Constitutionbills of attainder indicates that the properscope of
After holding that there was a juditiciable, view theAmerican Supreme Court the Bill of Attainder Clause, and its relevance tocontemporary
in an opinion by Justice Blackcategorically affirmed: "We hold that Section problems, must ultimately be sought by attemptingto discern the
304 fallsprecisely within the category of Congressional actionswhich the reasons for its inclusion in theConstitution, and the evils it was
Constitution barred by providing that 'No Billof Attainder or ex post Law shall desinged to eliminate.The best available evidence, the writings of the
be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of architectsof our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow, technical(and organizations which, after the date of the Act,are found to be under
therefore soon to be outmoded) prohibition, but ratheras an the direction, domination, or controlof certain foreign powers and to
implementation of the separation of powers, ageneral safeguard operate primarily toadvance certain objectives. This finding must be
against legislative exercise of the judicialfunction, or more simply — madeafter full administrative hearing, subject to judicial reviewwhich
trial by legislature." 16 Then after referring to Cummings, Garland, and opens the record for the reviewing court'sdetermination whether the
Lovett,Chief Justice Warren continued: "Under the line of casesjust administrative findings as tofact are supported by the preponderance
outlined, Sec. 504 of the Labor Management Reportingand of the evidence.Present activity constitutes an operative element to
Disclosure Act plainly constitutes a bill of attainder. Congress whichthe statute attaches legal consequences, not merely a pointof
undoubtedly possesses power under theCommerce Clause to enact reference for the ascertainment of particularly personsineluctably
legislation designed to keepfrom positions affecting interstate designated by the legislature." 19
commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the The teaching of the above cases, which I find highlypersuasive considering
authoritygranted it by the Constitution. The statute does not setforth what appeared to be in the mindsof the framers of the 1934 Constitutional
a generally applicable rule decreeing that any personwho commits Conventionyields for me the conclusion that the Anti-SubversionAct falls
certain acts or possesses certain characteristics (acts and within the ban of the bill of attainder clause. Itshould be noted that three
characteristics whhich, in Congress'view, make them likely to initiate subsequent cases upholding theCummings and Garland doctrine were
political strikes) shallnot hold union office, and leave to courts and likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with
juries thejob of deciding what persons have committed the
them especially in the light of the categoricallanguage appearing in Lovett.
specifiedacts or possessed the specified characteristics. Instead,it This is not to lose sightof the qualification that for them could deprive such
designates in no uncertain terms the personswho possess the fearec aholding of its explicit character as shown by this excerptfrom the opinion of
characteristics and therefore cannothold union office without the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
incurring criminal liability — members of the Communist Party." 17 totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is
Even Communist Party v. Subversive Activities ControlBoard, where the
18 that their guilt still has to bejudicially estblished. The Government has yet to
proveat the trial that the accused joined the Party knowingly,willfully and by
provision of the Subversive ActivitiesControl Act of 1950 requiring the overt acts, and that they joined the Partyknowing its subversive character
Communist Party ofthe United States to register was sustained, the and with specific intentto further its objective, i.e., to overthrow the existing
opinionof Justice Frankfurter for the Court, speaking for a five- Governmentby force, deceit, and other illegal means and placeit under the
manmajority, did indicate adherence to the Cummingsprinciple. Had control and domination of a foreign power. 20While not implausible, I find
the American Communist Party been outlawed,the outcome certainly difficulty in yielding acceptance.In Cummings, there was a criminal
would have been different.Thus: "The Act is not a bill of attainder. It prosecution ofthe Catholic priest who refused to take the loyalty oath.Again
attaches notto specified organizations but to described activities in Brown, there was an indictment of the laborleader who, judging by his
inwhich an organization may or may not engage. The singlingout of membership in the CommunistParty, did transgress the statutory provision
an individual for legislatively prescribed punishmentconstitutes an subsequentlyfound offensive to the bill attainder clause. If the constructionI
would place on theoff-repeated pronouncementof the American Supreme
attainder whether the individualis called by name or described in Court is correct, then the merefact that a criminal case would have to be
terms of conduct which,because it is past conduct, operates only as instituted wouldnot save the statute. It does seem clear to me that fromthe
a designationof particular persons. ... The Subversive Activities very title of the Anti-Subversion Act, "to outlaw the Communist Party of the
ControlAct is not of that king. It requires the registrationonly of Philippines and similar associations,"not to mention other specific provisions,
the taintof invalidity is quite marked. Hence, my inability to concurin the todissolve this union or to change its republican form, letthem stand
judgment reached as the statute not suffering fromany fatal infirmity in view undisturbed as monuments of the safety withwhich error of opinion may be
of the Constitutional prohibitionagainst bills of attainder. tolerated where reason isleft free to combat it." 22 As was so well put by
the philosopher,Sidney Hook: "Without holding the right to
3. This brings me to the question of the alleged repugnancyof the Anti- theexpression of heresy at any time and place to be absolute — for
Subversion Act to the intellectual libertysafeguarded by the Constitution in even the right to non-heretical speech cannot beabsolute — it still
terms of the free speechand free assocition guarantees. 21 It is to be seems wise to tolerate the expression evenof Communist, fascist
admitted thatat the time of the enactment of Republic Act No. and other heresies, lest in outlawingthem we include other kings of
1700,the threat that Communism, the Russian brand then, didpose heresies, and deprive ourselvesof the opportunity to acquite possibly
was a painful reality for Congressional leaders andthe then sounder ideasthan our own." 23
President. Its shadow fell squarely across thelives of all. Subversion
then could neither be denied notdisparaged. There was, in the expert The line is to be drawn, however, where the wordsamount to an incitement
opinion of those conversantwith such mattes, a danger to out to commit the crime of seditionor rebellion. The state has been reached, to
national existenceof no mean character. Nonetheless, the remedies follow theformulation of Cardozo, where thought merges into action.Thus is
toward off such menace must not be repugnant to our loyalty shown to the freedom of speech or pressordained by the Constitution.
Constitution.We are legally precluded from acting in anyother way. It does not bar the expressionof views affecting the very life of the state,
The apprehension justly felt is no warrant forthrowing to the discard even ifopposed to its fundamental presuppositions. It allows, ifit does not
fundamental guarantees. Vigilantwe had to be, but not at the require as a matter of fact, that unorthodoxideas be freely ventilated and fully
heard. Dissent is notdisloyalty.
expense of constitutional ideals.
Such an approach is reinforced by the well-settled constitutionalprinciple
One of them, certainly highly-prized of the utmost significance,is the right to
"that even though the governmental purposesbe legitimate and substantial,
dissent. One can differ, evenobject; one can express dissatisfaction with
they cannot be pursuedby means that broadly stifle fundamental
things as theyare. There are timew when one not only can but must.Such
personalliberties when the end can be more narrowly achieved.For precision
dissent can take the form of the most critical andthe most disparaging
of regulation is the touchstone in an areaso closely related to our most
remarks. They may give offense tothose in authority, to those who wield
precious freedoms." 24 This is so for "a governmental purpose to control
powe and influence.Nevertheless, they are entitled to constitutional
protection.Insofar as the content of such dissent is concerned, thelimits are or prevent activities constitutionally subject to state regulation may
hardly discernible. It cannot be confined totrivial matters or to such as are notbe achieved by means which sweep unnecessarily broadlyand
devoid of too much significance.It can reach the heart of things. Such thereby invade the area of protected freedoms." 25 It isindispensable
dissentmay, for those not so adventurous in the realm of ideas,possess a then that "an over breadth" in the applicabilityof the statute be
subversive tinge. Even those who oppose a democraticform of government avoided. If such be the case, then theline dividing the valid from the
cannot be silenced. This is trueespecially in centers of learning where constitutionally infirm hasbeen crossed. That for me is the conclusion
scholars competentin their line may, as a result of their studies, assert thata to be drawnfrom the wording of the Anti-Subversion Act.
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the lawfulness
of their exercisingthis right to dissent to the point of advocary of such There is to my mind support for the stand I take inthe dissent of Justice
adrastic change. Any citizen may do so without fear thatthereby he incurs Black in the Communist Party casediscussed above. What is to be kept in
the risk of a penal sanction. That ismerely to affirm the truth of this ringing view is that a legislativemeasure certainly less drastic in its treatment ofthe
declaration fromJefferson: "If there be any among us who would wish admittedly serious Communist problem was found inthe opinion of this noted
jurist offensive to the FirstAmendment of the American Constitution dangerousideas. Of course that is not the way to protect the
safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Nationagainst actions of violence and treason. The Foundersdrew a
Amendment it is that this Amendment was designedto guarantee the freest distinction in our Constitution which we would bewise to follow. They
interchange of ideas aboutall public matters and that, of course, means the gave the Government the fullest powerto prosecute overt actions in
interchangeof all ideas, however such ideas may be viewed inother countries
and whatever change in the existing structureof government it may be hoped
violation of valid lawsbut withheld any power to punish people for
that these ideas willbring about. Now, when this country is trying to nothing morethan advocacy of their views." 27
spreadthe high ideals of democracy all over the world — ideals that are
revolutionary in many countries — seems to be aparticularly inappropriate With the sentiments thus expressed uppermost in mymind and congenial to
time to stifle First Amendmentfreedoms in this country. The same arguments my way of thinking, I cannot sharethe conclusion reached by my breathren
that areused to justify the outlawry of Communist ideas here couldbe used to as to the Anti-Subversion Act successfully meeting the test of validity onfree
justify an outlawry of the ideas of democracyin other countries." 26 Further speech and freedom of association grounds.
he stated: "I believe with theFramers of the First Amendment that the
internal securityof a nation like ours does not and cannot be made 4. It could be that this approach to the constitutionalquestions involved arises
todepend upon the use of force by Government to make allthe from an appraisal of the challengedstatute which for me is susceptible of an
beliefs and opinions of the people fit into a commonmold on any interpretationthat it does represent a defeatist attitude on thepart of those of
single subject. Such enforced conformity ofthought would tend only us, who are devotees at the shrine of aliberal-democratic state. That
to deprive our people of the boldspirit of adventure and progress certainly could not havebeen the thought of its framers; nonetheless, such
an assumptionis not devoid of plausibility for why resort tothis extreme
which has brought thisNation to its present greatness. The creation
measure susceptible as it is to what apparentlyare not unfounded attacks on
of publicopinion by groups, organizations, societies, clubs, and constitutional grounds?Is this not to ignore what previously was accepted as
partieshas been and is a necessary part of our democraticsociety. anobvious truth, namely that the light of liberalism sendsits shafts in many
Such groups, like the Sons of Liberty and theAmerican directions? It can illuminate, and itcan win the hearts and minds of men. It if
Corresponding Societies, played a large part increating sentiment in difficult forme to accept the view then that a resort to outlawry
this country that led the people ofthe Colonies to want a nation of isindispensable, that suppression is the only answer to whatis an admitted
their own. The Father ofthe Constitution — James Madison — said, evil. There could have been a greater exposureof the undesirability of the
in speakingof the Sedition Act aimed at crushing the Jefferson communist creed, itscontradictions and arbitrarines, its lack of fealty to
Party,that had that law been in effect during the period beforethe reason,its inculcation of disloyalty, and its subservience tocentralized
dictation that brooks no opposition. It is thus,in a realistic sense, a
Revolution, the United States might well have continuedto be
manifestation of the fear of freethought and the will to suppress it. For better,
'miserable colonies, groaning under a foreign yoke.'In my judgment, of course,is the propaganda of the deed. What the communists promise,this
this country's internal security can betterbe served by depending government can fulfill. It is up to it then to takeremedial measures to alleviate
upon the affection of the peoplethan by attempting to instill them with the condition of our countrymenwhose lives are in a condition of destitution
fear and dreadof the power of Government. The Communist Party andmisery. It may not be able to change matters radically.At least, it should
hasnever been more than a small group in this country. Andits take earnest steps in that direction.What is important for those at the bottom
numbers had been dwindling even before the Governmentbegan its of the economicpyramid is that they are not denied the opportunity for
campaign to destroy the Party by force oflaw. This was because a abetter life. If they, or at least their children, cannot evenlook forward to that,
vast majority of the Americanpeople were against the Party's policies then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of
and overwhelminglyrejected its candidates year after year. That is
thinning,if not completely eliminating, the embattled ranksand outposts of
the trueAmerican way of securing this Nation against ignorance, fanaticism and error. That forme would be more in accordance
with the basic propositionof our polity. This is not therefore to preach a legislation to cope with this continuing menace to the
doctrine of object surrender to the forces apparently bent on the adoption of freedom and security of the country: Now, therefore,
a way of life so totally opposed to the deeply felt traditions of our people.
This is, for me at least, an affirmation of the vitality of the democratic creed, "Be it enacted by the Senate and House of
with an expression of regret that it could not have been more impressively Representatives of the Philippines in Congress
set forth in language worthy of the subject. assembled:
It is in the light of the views above expressed that I find myself unable to "Section 1. This Act shall be known as Anti-Subversion
yield concurrence to the ably-written opinion of Justice Castro for the Court Act.
sustaining the validity of the Anti-Subversion Act.
"Section 2. The Congress hereby declares the Communist
Footnotes Party of the Philippines to be an organized conspiracy to
overthrow the Government of the Republic of the
1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The Philippines for the purpose of establishing in the
text of the statute is hereunder reproduced in full: Philippines a totalitarian regime and place the Government
under the control and domination of an alien power. The
"AN ACT TO OUTLAW THE COMMUNIST PARTY OF said party and any other organization having the same
THE PHILIPPINES AND SIMILAR ASSOCIATIONS purpose and their successors are hereby declared illegal
PENALIZING MEMBERSHIP THEREIN, AND FOR and outlawed.
OTHER PURPOSES.
Section 3. As used in this Act, the term 'Communist Party
"WHEREAS, the Communist Party of the Philippines, of the Philippines' shall me and and include the
although purportedly a political party, is in fact an organizations now known as the Communist Party of the
organized conspiracy to overthrow the Government of the Philippines and its military arm, the Hukbong
Republic of the Philippines not only by force and violence Mapagpalayang Bayan, formerly known as
but also by deceit, subversion and other illegal means, for HUKBALAHAPS, and any successors of such
the purpose of establishing in the Philippines a totalitarian organizations.
regime subject to alien domination and control;
"Section 4. After the approval of this Act, whoever
"WHEREAS, the continued existence and activities of the knowingly, willfully and by overt acts affiliates himself with,
Communist Party of the Philippines constitutes a clear, becomes or remains a member of the Communist Party of
present and grave danger to the security of the the Philippines and/or its successor or of any subversive
Philippines; and association as defined in section two hereof shall be
punished by the penalty of arresto mayor and shall be
disqualified permanently from holding any public office,
"WHEREAS, in the face of the organized, systematic and appointive and elective, and from exercising the right to
persistent subversion, national in scope but international in vote; in case of a second conviction, the principal penalty
direction, posed by the Communist Party of the Philippines shall be prision correccional, and in all subsequent
and its activities, there is urgent need for special convictions the penalty of prision mayor shall be imposed;
and any alien convicted under this Act shall be deported "Section 7. No person shall be convicted of any of the
immediately after he shall have served the sentence offenses penalized herein with prision mayor to death
imposed upon him: Provided, That if such member is an unless on the testimony of at least two witnesses to the
officer or a ranking leader of the Communist Party of the same overt act or on confession of the accused in open
Philippines or of any subversive association as defined in court.
section two hereof, or if such member takes up arms
against the Government he shall be punished by prision "Section 8. Within thirty days after the approval of this Act,
mayor to deal with all the accessory penalties provided any person who is a member of the Communist Party of
therefor in the Revised Penal Code: And provided, finally, the Philippines or of any such association or conspiracy,
That one who conspires with any other person to who desires to renounce such membership may do so in
overthrow the Government of the Republic of the writing and under oath before a municipal or city mayor, a
Philippines or the government of any of its political provincial governor, or a person authorized by law to
subdivisions by force, violence, deceit, subversion or other administer oaths. Such renunciation shall exempt such
illegal means, for the purpose of placing such Government person or persons from the penal sanction of this Act, but
or political subdivision under the control and domination of the same shall in no way exempt him from liability for
any alien power, shall be punished by prision criminal acts or for any violation of the existing laws of the
correccional to prision mayor with all the accessory Republic of the Philippines committed before this Act takes
penalties provided therefor in the same Code. effect.
"Section 5. No prosecution under this Act shall be made "Section 9. Nothing in this Act shall be interpreted as a
unless the city or provincial fiscal, or any special attorney restriction to freedom of thought, of assembly and of
or prosecutor duly designated by the Secretary of Justice association for purposes not contrary to law as guaranteed
as the case may be, finds after due investigation of the by the Constitution.
facts, that a prima facie case for violation of this Act exists
against the accused, and thereafter presents an
information in court against the said accused in due form, "Approved, June 20, 1957."
and certifies under oath that he has conducted a proper
preliminary investigation thereof, with notice, whenever it 2 Delegate Jose P. Laurel (of the 1934 Constitutional
is possible to give the same, to the party concerned, who Convention) referred to the Anglo-American origin of this
shall have the right to be represented by counsel, to right thus:
testify, to have compulsory process for obtaining witness
in his favor, and to cross-examine witnesses against "No ex post facto law or bill of attainder shall be enacted.
him: Provided, That the preliminary investigation of any This provision is found in the American Federal
offense defined and penalized herein by prision mayor to Constitution (Art. 1, Sec. 9) and is applicable to the States
death shall be conducted by the property Court of First (id. Sec. 10). An ex post facto law is a law which makes an
Instance. act punishable in a manner in which it was not punishable
when committed. It creates or aggravates the crime or
"Section 6. Any person who knowingly furnishes false increases the punishment, or changes the rules of
evidence in any action brought under this Act shall be evidence for the purpose of conviction. The prohibition
punished by prision correccional. against the passage of ex post facto laws is an additional
bulwark of personal security — protecting the citizen from Colonies (North, The Constitution of the U.S., its Sources
punishment by legislative act which has a retrospective and Applications, p. 85.) The prohibition in the Bill of
operation. Rights, therefore, seeks to present acts of violence and
injustice brought about the passage of such bills." (3 J.
"The phrase ex post facto has a technical meaning and Laurel, Proceedings of the Constitutional Convention 661-
refers to crimes and criminal proceedings. It is in this 663 [1966]).
sense that it was used in England. It was in this sense that
the convention of 1787 understood it. (Calder v. 3 Cummings vs. United States, 4 Wall. (71 U.S.) 277
Bull, supra; Watson v. Mercer, 8 Pet. 88, 110; Suterlee v. (1867); accord, Ex parte Garland, 4 Wall. (71 U.S.) 333
Mathewson, 2 Peters, 380; Kring v. Missouri, 107 U.S. (1867). This definition was adopted by this Court in People
221.) This interpretation was upheld by our Supreme Court vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs.
(U.S. vs. Ang Ken Ko, 6 Phil. 376.). Montenegro, 91 Phil. 883,885 (1952).
"A bill of attainder is a legislative act which inflicts 4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United
punishment without judicial trial. (Cummings vs. United States vs. Lovett, 328 U.S. 303, 615, (1946).
States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of
Attainder was an act of Parliament by which a man was 5 Chief Justice Warren referred to the Bill of Attainder
tried, convicted and sentenced to death without a jury, Chause as an implementation of the separation of powers,
without a hearing in court, without hearing the witnesses "a general safeguard against legislative exercise of judicial
against him and without regard to the rules of evidence. function, or more simply, trial by legislature." United States
His blood was attained or corrupted, rendering him devoid vs. Brown, 381 U.S. 437 (1964).
of all heritable quality — of acquiring and disposing
property by descent. (Ex parte Garland, 4 Wall. 333, 18 L.
ed 366.) If the penalty imposed was less than death, the 6 "It is the peculiar province of the legislature to prescribe
act was known as a "bill of pains and penalties." Bills of general rules for the government of society; the application
attainder, like ex post factolaws, were favorite methods of of those rules to individuals in society would seem to be
Stuart oppression. Once, the name of Thomas Jefferson the duty of other departments." Fletcher vs. Peck, 6
was included in a bill of attainder presented to Parliament Cranch (10 U.S.)87, 136 (1810).
because of his reform activities.
7 "The legislative body in enacting bills of attainder
"Often, such bills were 'stimulated by ambition or personal exercises the powers and office of judge, it pronounces
resentment, and vindictive malice.' (Calder v. Bull, supra.) upon the guilt of the party, without any of the forms or
A well known case illustrating the ruthless manner in which safeguards of trial...it fixes the degree of punishment in
a bill of attainder was resorted to was that of Thomas accordance with its own notions of the enormity of the
Wentworth, chief adviser of Charles I. He was brought to offense." Cummings vs. Missouri, supra note 3.
impeachment charged with attempting to subvert the
liberties of England. He defended himself so ably that his 8 Bills of this sort, says Mr. Justice Story, have been most
enemies, fearing his acquittal, withdrew the impeachment usually passed in England in times of rebellion or gross
and a bill of attainder was passed instead. Wentworth was subserviency to the crown, or of violent political
beheaded. Bills of attainder were also passed in the excitements; periods, in which all nations are most liable
(as well as free as the enslabe) to forget their duties, and name may appear in the list of members." Senate Cong.
to trample upon the rights and liberties of others." Comm. Rec. May 22, 1957, p. 1900.
sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During
the American revolution legislative punishments had been 16 Board of Governors of Federal Reserve System vs.
continued by state legislatures, when numerous bills of Agnew, 329 U.S. 441.
attainder were enacted against the Torries. 1C.
Antieu, Modern Constitutional Law, 425.
17 New York ex rel. Bryant vs. Zimmerman, 278 U.S.
63(1928).
9 C. Antieu, supra note 8 at 423.
18 Repealed by Rep. Act 4241.
10 The Supreme Court of the United States said in
Fleming vs. Nestor, 363 U.S. 603, 613-14 (1960):
19 Philippine Ass'n of Free Labor Unions vs. Secretary of
Labor, Feb. 27, 1969, 27 SCRA 40.
"In determining whether legislation which bases a
disqualification on the happening of a certain past event
imposes a punishment, the Court has sought to discern 20 United States vs. Lovett, 328 U.S. 303 (1946).
the objects on which the enactment in question was
focused. Where the source of legislative concern can be 21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).
thought to be the activity or status from which the
individual is barred, the disqualification is not punishment 22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).
even though it may bear harshly upon one affected."
14 Cf . Scales vs. United States, 367 U.S. 203 (1961); 26 278 U.S. 63 (1928).
Noto vs. United States, 367 U.S. 290 (1961).
27 Id. at 75-77.
15 During the Senate deliberations on the bill, Senator
Cea remarked: "I have inserted the words 'overt acts'
because we are punishing membership in the Communist 28 People vs. Evangelista, 57 Phil. 375 (1932); see
Party. I would like that membership to be proved by overt also People vs. Evangelista, 57 Phil., 372 (1932); People
acts, by positive acts, because it may happen that one's vs. Capadocia, 57 Phil. 364 (1932); People vs.
Evangelista, 57 Phil. 354 (1932); People vs. Feleo, 57
Phil. 451 (1932); People vs. nabong, 57 Phil. 455 (1932).
29 People vs. Lava, L-4974-78, May 16, 1969. 45 People vs. nabong, 57 Phil. 455, 458 (1932).
30 L-33864, Dec. 11, 1971, 42 SCRA 448. 46 18 U.S.C. sec. 2385. (emphasis added).
31 United States vs. Lovett, 328 U.S. 303, 318 (1946). 47 367 U.S. 203 (1961).
32 341 U.S. 716 (1951). 48 Communist Party vs. Subversive Activities Control
Board, 367 U.S. 1 (1961).
33 Communist Party vs. Subversive Activities Control
Board, 367 U.S. 1 (1960). 49 P. A. Freud, The Supreme Court of the United States
75 (1961).
34 Sec. 8.
50 Const., art VI, Sec. 21 (1).
35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs.
Arca, L-25721, May 26, 1969, 28 SCRA 351. 51 Government vs. Hongkong & Shaihai Banking Corp.,
66 Phil. 483 (1938).
36 Freund, Review of Facts in Constitutional Cases, in
Supreme Court and Supreme Law 47-48 (Cahn ed. 1954). 52 Lindasan vs. Commission on Elections, L-28089, Oct.
25, 1967, 21 SCRA 496.
37 291 U.S. 502, 537 (1934).
FERNANDO, J., concurring:
38 L-33964, Dec. 11, 1971, 41 SCRA 448.
1 Rep. Act No. 1700 (1957)..
39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).
2 According to Art. III, Sec. 1, par. 11: "No ex post
40 Dennis vs. United States, 341 U.S. 494, 509 (1951). facto law or bill of attainder shall be enacted."
41 Id. at 501. 3 According to Art. III, Sec. 1, par. 8: "No law shall be
passed abridging the freedom of speech, or of the press,
or the right of the people peacebly to assemble and
42 Shelton vs. Tucker, 364 U.s. 479 (1960). petition the Government for redress of grievances."
43 Scales vs. United States, 367 U.S. 203 (1961); see 4 According to Art. III, Sec. 1 par. 4: "The liberty of abode
also Noto vs. United States, 367 U.S. 290 (1961). and of changing the same within the limits prescribed by
law shall not be impaired."
44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir.
1952). 5 Footnote 2, p. 9 of Opinion of the Court.
6 4 Wall. 277 (1867). peacebly to assemble and petition the Government for
redress of grievances."
7 4 Wall. 333 (1867).
22 Jefferson's First Instance Address, March 4, 1801, in
8 Cf. United States v. A Lovett, 328 US 303 )1946). Padover, ed., The Complete Jefferson, 385 (1943).
15 381 US 437. Petitioner Reynaldo R. Bayot is one of the several persons accused in
more than one hundred (100) counts of Estafa thru Falsification of Public
16 Ibid, 442. Documents before the Sandiganbayan. The said charges stemmed from
his alleged involvement, as a government auditor of the Commission on
17 Ibid, 449-450. Audit assigned to the Ministry of Education and Culture, together with
some officers/employees of the said Ministry, the Bureau of Treasury
18 367 US 1 (1961). and the Teachers' Camp in Baguio City, in the preparation and
encashment of fictitious TCAA checks for non-existent obligations of the
Teachers' Camp resulting in damage to the government of several
19 Ibid, 86-87.
million pesos. The first thirty-two (32) cases were filed on July 25, 1976.