ABERIN AND PARTNERS LAW FIRM

Baguio City
TO: Atty. Aberin, Lead Counsel
FROM: Atty. Dumo, Associate
DATE: December 11, 2018
IN RE: Civil Case No. 17-ABCD re: Constitutionality of the Anti-Profanity
Ordinance
INTERNAL MEMORANDUM FOR RESPONDENTS
Before us is respondent City of Waka, an independent component city
in the Republic of the Philippines. As counsel for the respondent, we will
prove that complainant Juan Dela Cruz has no sufficient cause of action
against our client with regards to the ratification of the Anti-Profanity
Ordinance which became effective January 5, 2018.
Below are the statement of facts, identification of issues, and possible
attacks and defenses, as well as possible weaknesses of their position.

STATEMENT OF FACTS
On December 5, 2017, the City Mayor ratified an ordinance which is
referred to as an Anti-Profanity Ordinance which became effective January 5,
2018. With the intention of curbing the revolting habit of cursing and being
oblivious to its repercussions; a habit which is often observed in computer
shops and employed by children who engage in war games and feudal battles
who insult each other in indecent and profane languages. The Sangguniang
Panlungsod that this habit of cursing causes the very fabric of human decency
to deteriorate to such a degree that it must be prevented before any irreparable
damage might happen.
The Ordinance obligates computer shops and arcades to cause the
hanging or posting of signs and signage in their business establishments to
announce the announce the observance of the Anti-Profanity Ordinance, in
word such as “Cursing is NOT allowed”, “Profanity prohibited”, “Bawal
magmura”. Computer shops and arcades found without an Anti-Profanity
sign, after approval of the ordinance, and having been informed of the
Ordinance’s effectivity shall be apprehended by the Permits and Licensing
Division of the City Government for their non-compliance.
Complainant is the owner of several computer shops in the City of
Waka. He is a law abiding citizen and makes sure that all licenses and permits
are secured at the start of every year. He is considered one of the top 100
taxpayers in the City of Waka.
In November 1, 2018, complainant received a notice of cancellation of
his Mayor’s Permit and other licenses on the ground that he failed to post the
required notices in his computer shops. His refusal to do so was intentional
because he believed that the ordinance is unconstitutional, claiming the it
violates his rights under Section 4, Article III of the 1987 Constitution and is
suing our client for the alleged violation.
 STATEMENT OF THE ISSUES
I. Whether or not the Anti-Profanity Ordinance violates Section 4,
Article III of the 1987 Constitution.
II. Whether or not the requirements of publication for such ordinance
was complied with.
III. Whether or not Juan Dela Cruz has legal standing to sue as a
taxpayer.

ARGUMENTS AND DISCUSSIONS

I. The Anti-Profanity Ordinance does not violate Section 4,
Article III of the 1987 Constitution.
Complainant based his suit on Article III, Section 4 of the 1987
Constitution which states that “No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the people peaceable
to assemble and petition the government for redress of grievances.”
Freedom of expression is essential for the search of truth and is needed
for democracy to work properly. Every freeman has an undoubted right to lay
what sentiments he pleases before the public: but if he publishes what is
improper, mischievous or illegal, he must take the consequence of his own
temerity.1 Thus, the freedom contemplated in Article III, Section 4 of the
Constitution is not absolute.
In the oft-quoted of Justice Holmes, the constitutional guarantee
“obviously was not intended to give immunity for every possible use of
language.”2 The accepted rule in jurisprudence is that freedom of speech may
be limited if “creates a dangerous tendency which the state has a right to
prevent.”3
In the celebrated case of Schenk v. United States, Justice Holmes
rejected the absolutist view of the freedom of speech saying that “the character
of every act depends upon the circumstances in which it is done. The most
stringent protection of speech does not protect a man in falsely shouting fire
in a theater and causing a panic.”4 The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree.5
Chief Justice Fernando expounded on the meaning of the clear and
present danger test in Gonzalez v. Chairman Katigbak,6 to wit:

The test, to repeat, to determine whether freedom of expression may be

limited is the clear and present danger of an evil of a substantive
character that the State has a right to prevent. Such danger must not
only be clear but must also be present. There should be no doubt that
what is feared may be traced to the expression complained of. The
causal connection must be evident. Also, there must be reasonable
apprehension about its imminence. The time element cannot be
ignored. Nor does it suffice if such danger be only probable. There is
the requirement of its being well-nigh inevitable.

From the language of the specific constitutional provision, it would

appear that the right to free speech and a free press is not susceptible of any
limitation. But the realities of life in a complex society preclude a literal
interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, nor is it
an unbridled license that gives immunity for every possible use of language
and prevents the punishment of those who abuse this freedom. Thus, all
speech are not treated the same. Some types of speech may be subjected to
some regulation by the State under its pervasive police power, in order that it
may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests
of one type of speech, e.g., political speech, may vary from those of another,
e.g., obscene speech. Distinctions have therefore been made in the treatment,
analysis, and evaluation of the permissible scope of restrictions on various
categories of speech.7

Based on the foregoing, the City of Waka’s ratification of the Anti-

Profanity Ordinance is valid based on the principles of the Dangerous
Tendency Rule because such ordinance seeks to prevent the deterioration of
morals and human decency of its constituents which is the danger it seeks to
prevent.

The ordinance is also in keeping with the mandate of the city in the
promotion of the general welfare of the people based on Section 16 of the
Local Government Code of 1991 which states that:

Every local government unit shall exercise the powers expressly

granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.

In conclusion, the limitation of the City of Waka on the freedom of

expression claimed by Juan Dela Cruz is justified as it will prevent the
deterioration of the decency and morals of its constituents.

II. The publication required for such ordinance is not faithfully

complied with.

This is a procedural lapse that may be used by the opposing party

against the validity of the ordinance.

According to Section 59 (c-d) of the Local Government Code:

xxx
c. The gist of all ordinances with penal sanctions shall be published in
a newspaper of general circulation within the province where the local
 legislative body concerned belongs. In the absence of any newspaper
of general circulation within the province, posting of such ordinance
shall be made in all municipalities and cities of the province where the
sanggunian of origin is situated.
d. In the case of highly urbanized and independent component cities,
the main features of the ordinance or resolution duly enacted or adopted
shall, in addition to being posted, be published once in a newspaper of
general circulation within the city: Provided, That in the absence
thereof the ordinance or resolution shall be published in any newspaper
of general circulation.
The Anti-Profanity Ordinance sanctions those who does not comply
with the requirement of posting signage, thus, can be classified as an
ordinance with a penal sanction.
Being an ordinance with a penal sanction and the City of Waka being
an independent component city, it is clear from the provision of the local
government code that a publication in a newspaper of general circulation is
required for the Anti-Profanity Ordinance to be effective, thus, this might be
one of the possible weakness of our defense if properly alleged by our
opponent.
III. Juan Dela Cruz does not have legal standing to sue as a
taxpayer.
One of the remedies that we may employ is to file for a motion to dismiss
the case on the ground that Juan Dela Cruz does not have a legal standing to
sue as a taxpayer.
According to Remulla v. Maliksi8, jurisprudence dictates that a taxpayer
may be allowed to sue where there is a claim that public funds are illegally
disbursed or that public money is being deflected to any improper purpose, or
that public funds are wasted through the enforcement of an invalid or
unconstitutional law or ordinance.
Based on the foregoing, the requisites of a valid taxpayer’s suit is: 1) Illegal
disbursement of funds derived from taxation; and 2) The taxpayer is directly
affected by such governmental act.
In the present case, although Juan Dela Cruz is a taxpayer who faithfully
complies with his obligations, he is not qualified to sue as there was no illegal
disbursement of public fund as. And even if the ordinance requires
disbursement of funds derived from taxation, it is used for a valid purpose
because the ordinance is a constitutional one.
It is true that Juan Dela Cruz is directly affected by the ordinance as he
owns a lot of computer shops in the City of Waka, but, given that one of the
requisites of a valid taxpayer’s suit is lacking, he cannot pursue his suit.

CONCLUSION
First, in view of the foregoing discussions, it is submitted that the
petitioners’ contention is bereft of merit on substantive grounds. It is such on
the ground of lack of cause of action of the petitioner as the Anti-Profanity
Ordinance is constitutional based on the principles of the Dangerous
Tendency Rule which is the recommended mainstay of our arguments in
case the suit shall prosper.
Second, one of the possible attacks of the opponents would be that the
ordinance is ineffective as it did not comply with the publication
requirement.
Lastly, we should pray to the court that the suit be dismissed as Juan
Dela Cruz does not have the legal standing to institute a taxpayer’s suit.
Endnotes:
1
The 1987 Constitution of the Republic of the Phil.: A Commentary, J.Bernas,
2009 Ed.,
2
Trohwerk v. United States, 249, U.S. 204, 206 (1919)
3
People v. Perez, 454 Phil. 599 (1923
4
The 1987 Constitution of the Republic of the Phil.: A Commentary, J.Bernas,
2009 Ed.,
5
Dennis v. United States, 341 U.S. 494, 509 (1951)
6
222 Phil. 225
7
Chavez v. Gonzales, G.R. No. 168338, February 15, 2008
8
G.R. No. 171633, September 18, 2013