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382 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer Nos. L-32613-14. December 27, 1972. PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON N. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO Co alias LEONCIO Co alias "Bob" and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. Constitutional law; Bill of Attainder, defined.—A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. Same; Bill of Attainder, history of.—History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder. Same; R.A. 1700, other known as The Anti-Subversion Act, not a bill of attainder.—When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" is used solely for definition purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. Same; Same; Under the Anti-Subversion Act guilt of accused must be judicially established.—Indeed, were the AntiSubversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without 383 VOL. 48, DECEMBER 27, 1972 383 People vs. Ferrer more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic, objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. Same; Same; Same; Mere membership in Communist Party not punished.—As to the claim that under the statute organizational guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that that is precisely the nature of conspiracy, which has been referred to as a "dragnet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. But the statute specifically requires that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organizations unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. Same; Same; Even if Anti-Subversion Act specifies individuals it will not be Bill of Attainder—Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative f inding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. Similarly, a statute requiring every 384 384 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan, In the Philippines, the validity of section 23(b) of the Industrial Peace Act, requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional methods," was upheld by this Court. Same; Same.—Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. Same; Same; Character of Communist Party as construed by Court.—In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." More recently, in Lansang vs. Garcia, we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines." Same; Same; To be Bill of Attainder statute must not only specify persons or groups but also it must reach past conduct. 385 VOL. 48, DECEMBER 27, 1972 People vs. Ferrer 385 —Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement ement follows from the nature of a bill of attainder as a legeslative legislative adjudication of guilt. Same; Same; Same.—The statement of the U.S. Supreme Court with respect to the U.S. Federal Subversive Activities Control Act of 1950—"Nor the statute made an act of 'outlawry' or attainder by the fact than the conduct which M regulates is described with such particularity that, in probability, few organizations will come within the statutory terms. Legislatures may act to curb behaviour which they regard as harmful to the public welfare, whether that conduct is found to be engaged in by many persons or by one, So long as the incidence of legislation is such that the persons who engage in the regulated conduct, be they many or few, can escape regulation merely by altering the course of their own present activities, there can be no complaint of an attainder."—may be said of the Anti-Subversion Act. Section 4 thereof expressly states 'that the prohibition therein applies only to acts committed, "After the approval of this Act." ... Those who were members of the Party or of any other subversive organization at the time of the enactment of the -law, were given opportunity of purging themselves of liability by renouncing in writing and under oath their membership in the Party. The law expressly provides that such renunciation shall operate to exempt such persons from penal liability. Same; Anti-Subversion Act not violative of constitutional freedom 'of speech and association.—The legislative declaration in section 2 of the Act that the Communist Party of the Philippines is an organized conspiracy for the overthrow of the Government is intended not to provide the basis for a legislative finding of guilt of the members of the Party but rather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are so fundamental that they are thought by some to occupy a "preferred position" in the hierarchy of constitutional values. Accordingly, any limitation on their exercise must be justified by the existence of a substantive evil. This is the reason why before enacting the 386 386 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer statute in question Congress conducted careful investigations and then stated its findings in the preamble of the Act. In truth, the constitutionality of the Act would be open to question if, instead of making those findings in enacting the statute, Congress omitted to do so. Remedial law; Distinction between legislative fact and adjudicative fact.—A conventional formulation is that legislative facts—those facts which are relevant to the legislative judgment —will not be canvassed save to determine whether there is a rational basis for believing that they exist, while adjudicative facts—those which tie the legislative enactment to the litigant— are to be demonstrated and found according to the ordinary standards prevailing for judicial trials. Same; Constitutional law; Test of due process.—If laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. The recital of legislative findings implements this test. Same; Same; Statutory construction; It is not court's duty to examine validity of legislative findings.—It is not for the courts to reexamine the validity of these legislative findings and reject them. ... They are the product of extensive inves-tigation by Committees of Congress over more than a decade and a half. We certainly cannot dismiss them as unfounded or irrational imaginings. ... And if we accept them, as we must, as a not unentertainable appraisal by Congress of the threat which Communist organizations pose not only to existing government in the United States, but to the United States as a sovereign, independent Nation. ... we must recognize that the power of Congress to regulate Communist organizations of this nature is extensive. This statement of the U.S. Supreme Court in Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961), mutatis mutandis, may be said of the legislative findings articulated in the Anti-Subversion Act. Constitutional law; Political law; Dactrine of right to selfprotection.—That the Government has a right to protect itself against subversion is a proposition too plain to require elaboration. Self-preservation is the "ultimate value" of society. It 387 VOL. 48, DECEMBER 27, 1972 387 People vs. Ferrer surpasses and transcends every other value, "for if a society cannot protect its very structure from armed internal attack, ... no subordinate value can be protected." As Chief Justice Vinson so aptly said in Dennis vs. United States (341 U.S. 494): "Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial govern-ments is without force where the existing structure of government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the government by force and violence." Same; Purpose of Anti-Subversion Act does not stifle fundamental personal liberties.—By carefully delimiting the reach of the Act to conduct (as explicitly described in section 4 thereof), Congress reaffirmed its respect for the rule that "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." The requirement of knowing membership, as distinguished from nominal membership, has been held as a sufficient basis for penalizing membership in a subversive organization. Same; Act not unconstitutionally overbroad.—The argument that the Act is unconstitutionally overbroad because section 2 merely speaks of "overthrow" of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase "knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitions of and the penalties prescribed for the different acts proscribed are stated in section 4 which requires that membership in the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear that the overthrow contemplated is "overthrow not only by force and violence but also by deceit, subversion and other illegal means." The absence of this qualification in section 2 appears to be due more to an oversight rather than to deliberate omission. Moreover, the word "overthrow" sufficiently connotes 388 388 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer the use of violent and other illegal means. Only in a metaphorical sense may one speak of peaceful overthrow of governments, and certainly the law does not speak in metaphors. Same; Same; Statutory construction; Use of word "over-throw" in the Act.—In the case of the Anti-Subversion Act, the use of the word "overthrow" in a metaphorical sense is hardly consistent with the clearly delineated objective of the "overthrow," namely, "establishing in the Philippines a totalitarian regime and place [sic] the Government under the control and domination of an alien power," What this Court once said in a prosecution for sedition is apropos: "The language used by the appellant clearly imported an overthrow of the Government by violence, and it should be interpreted in the plain and obvious sense in which it was evidently intended to be understood. The word "overthrow" could not have been intended as referring to an ordinary change by the exercise of the elective franchise. ..." Same; Act does not infringe freedoms of expression and association.—Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country. Same; Act deals with only one subject which is expressed in the title thereof.—It is argued that the last proviso to section 4 of the Act punishes any conspiracy to overthrow the government even if the intention is not to establish a communist totalitarian regime, but a democratic regime. This, it is said, is not germane or embraced in the title of the Act. HELD: The Act, in addition to its main title ("An Act to Outlaw the Communist Party of the Philippines and Similar Associations, Penalizing Membership Therein, and for Other Purposes"), has a short title. Section 1 provides that "This Act shall be known as the Anti-Subversion Act." Together with the main title, the short title of the statute unequivocally indicates t that the subject-matter is subversion in general which has for is s fundamental purpose the substitution of a foreign totalita389 VOL. 48, DECEMBER 27, 1972 389 People vs. Ferrer rian regime in place of the existing Government and not merely subversion by Communist conspiracies. Same; Same; Statutory construction; Title of bill need not be a catalogue of its contents.—The title of a bill need not be a catalogue or an index of its contents, and need not recite the details of the Act. It is a valid title if it indicates in broad but clear terms the nature, scope, and consequences of the proposed law and its operation. A narrow or technical construction is to be avoided, and the statute will be read fairly and reasonably in order not to thwart the legislative intent. The Anti-Subversion Act fully satisfies these requirements. Criminal law and procedure; Guidelines to be observed in prosecutions under the Anti-Subversion Act.—We cannot overemphasize the need for prudence and circumspection in the enforcement of the Anti-Subversion Act, operating as it does in the sensitive area of freedom of expression and belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act. The Government, in addition to proving such circumstances as may affect liability, must establish the following elements of the crime of joining the Communist Party of the Philippines or any other subversive association: (1) In the case of subversive organizations other than the Communist Party of the Philippines, (a) that the purpose of the organization is to overthrow the present Government of the Philippines and to establish in this country a totalitarian regime under the domination of a foreign power; (b) that the accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and (2) In the case of the Communist Party of the Philippines, (a) that the CPP continues to pursue the objectives which led Congress in 1957 to declare it to be an organized conspiracy for the overthrow of the Government by illegal means for the purpose of placing the country under the control of a foreign power; (b) that the accused joined the CPP; and (c) that he did so willfully, knowingly and by overt acts. 390 390 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer SPECIAL CIVIL ACTION in the Supreme Court. Certiorari. The facts are stated in the opinion of the Court.      Solicitor General Felix Q. Antonio for petitioner.      Amelito R. Mutuc for respondent Feliciano Co.      Jose W. Diokno for respondent Nilo Tayag. CASTRO, J.: I. Statement of the Case Posed in issue in these two cases is the constitutionality of 1 the Anti-Subversion Act, which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against _______________ 1 Rep. Act No. 1700, 12 Laws & Res. 102 (1957). The text of the statute is hereunder reproduced in full: "AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND SIMILAR ASSOCIATIONS. PENALIZING MEMBERSHIP THEREIN, AND FOR OTHER PURPOSES. "WHEREAS, the Communist Party of the Philippines, although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control; "WHEREAS, the continued existence and activities of the Communist Party of the Philippines constitutes a clear, present and grave danger to the security of the Philippines; and "WHEREAS, in the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with this continuing menace to the freedom and security of the country: Now, therefore, 391 VOL. 48, DECEMBER 27, 1972 391 People vs. Ferrer the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites: "That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed _______________ "Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: "SECTION 1. This Act shall be known as Anti-Sub-version Act. "SECTION 2. The Congress hereby declares the Communist Party of the Philippines to be an organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose of establishing in the Philippines a totalitarian regime and place the Government under the control and domination of an alien power. The said party and any other organization having the same purpose and their successors are hereby declared illegal and outlawed. "SECTION 3. As used in this Act, the term 'Communist Party of the Philippines' shall mean and include the organizations now known as the Communist Party of the Philippines and its military arm, the Hukbong Mapagpalaya ng Bayan, formerly known as HUKBALAHAPS, and any successors of such organizations. "SECTION 4. After the approval of this Act, whoever knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines and/or its successor or of any subversive 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, appointive and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported immediately after he shall have served the sentence imposed upon him: Provided, That if such member is an officer or a ranking leader of the Communist Party of the Philippines or of any subversive association as defined in section two hereof, or if such member takes up arms 392 392 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. "That in the commission of the above offense, the following aggravating circumstances are present, to wit: _______________ against the Government, he shall be punished by prision mayor to death with all the accessory penalties provided therefor in the Revised Penal Code: And provided, finally, That one who conspires with any other person to overthrow the Government of the Republic of the Philippines or the government of any of its political subdivisions by force, violence, deceit, subversion or other illegal means, for the purpose of placing such Government or political subdivision under the control and domination of any alien power, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same Code, "SECTION 5. No prosecution under this Act shall be made unless the.city or provincial fiscal, or any special attorney or prosecutor duly designated by the Secretary of Justice as the case may be, finds after due investigation of the 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, and certifies under oath that he has conducted a proper preliminary investigation thereof, with notice, whenever it is possible to give the same, to the party concerned, who shall have the right to be represented by counsel, to testify, to have compulsory process for obtaining witnesses in his favor, and to cross-examine witnesses against him: Provided, That the preliminary investigation of any offense defined and penalized herein by prision mayor to death shall be conducted by the proper Court of First Instance. "SECTION 6, Any person who knowingly furnishes false evidence in any. action brought under this Act shall be punished by prision correccional. "SECTION 7. No person shall be convicted of any of 393 VOL. 48, DECEMBER 27, 1972 393 People vs. Ferrer "(a) That the crime has been committed in contempt of or with insult to public authorities; "(b) That the crime was committed by a band; and "(c) With the aid of armed men or persons who insure or afford impunity." Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, charging the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: "The undersigned Provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RE_______________ the offenses penalized herein with prision mayor to death unless on the testimony of at least two witnesses to the same overt act or on confession of the accused in open court. "SECTION 8. Within thirty days after the approval of this Act, any person who is a member of the Communist Party of the Philippines or of any such association or conspiracy, who desires to renounce such membership may do so in writing and under oath before a municipal or city mayor, a provincial governor, or a person authorized by law to administer oaths. Such renunciation shall exempt such person or persons from the penal sanction of this Act, but the same shall in no way exempt him from liability for criminal acts or for any violation of the existing laws of the Republic of the Philippines committed before this Act takes effect. "SECTION 9. Nothing in this Act shall be interpreted as a restriction to freedom of thought, of assembly and of association f or purposes not contrary to law as guaranteed by the Constitution. "SECTION 10. This Act shall take effect upon its approval. "Approved, June 20, 1957." 394 394 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer NATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: "That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as officers and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE alias COMMANDER MELODY, in addition thereto, knowingly, willfully and by overt acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the abovenamed accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: "1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to establish in the Philippines a Communist regime. 395 VOL. 48, DECEMBER 27, 1972 395 People vs. Ferrer "2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. "That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed." On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denies him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overbroad, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No 2 bill of attainder or ex post facto law shall be enacted." A bill of attainder is a legislative act which in_______________ 2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention) referred to the Anglo-American origin of this right, thus: "No ex post facto law or bill of attainder shall be enacted. This provision is found in the American Federal Constitution (Art 1, Sec. 9) and is applicable to the States (id. Sec. 10). An ex post facto law is a law which makes an act punishable in a manner in which it was not punishable when committed. It creates or aggravates the crime 396 396 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer 3 flicts punishment without trial. Its essence is the substi_______________ or increases the punishment, or changes the rules of evidence for the purpose of conviction. The prohibition against the passage of ex post facto laws is an additional bulwark of personal security—protecting the citizen from punishment by legislative act which has a retrospective operation. "The phrase ex post facto has a technical meaning and refers to crimes and criminal proceedings. It is in this sense that it was used in England. It was in this sense that the convention of 1787 understood it. (Calder v. Bull, supra; Watson v, Mercer, 8 Pet. 88, 110; Suterlee v. Mathewson, 2 Peters, 380; Kring v. Missouri, 107 U.S. 221.) This interpretation was upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.) "A bill of attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of Attainder was an act of Parliament by which a man was tried, convicted and sentenced to death without a jury, without a hearing in court, without hearing the witnesses against him and without regard to the rules of evidence. His blood was attained or corrupted, rendering him devoid 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 act was known as a "bill of pains and penalties/' Bills of attainder, like ex post facto laws, were favorite methods of Stuart oppression. Once, the name of Thomas Jefferson was included in a bill of attainder presented to Parliament because of his reform activities. "Often, such bills were 'stimulated by ambition or personal resentment, and vindictive malice/ (Calder v. Bull, supra.) A well known case illustrating the ruthless manner in which a bill of attainder was resorted to was that of Thomas Wentworth, chief adviser of Charles I. He was brought to impeachment charged with attempting to subvert the liberties of England. He defended himself so ably that his enemies, fearing his acquittal, withdrew the impeachment and a bill of attainder was passed instead. Wentworth was beheaded. Bills of attainder were also passed in the Colonies (North, The Constitution of the U.S., its Sources and Applications, p. '85.) The prohibition in the Bill of Rights, therefore, seeks to prevent acts of violence and injustice brought about the passage of such bills." (3 J. Laurel, Proceedings of the Constitutional Convention 661-663 [1966]). 3 Cummings vs. United States, 4 Wall. (71 U.S.) 277 (1867); 397 VOL. 48, DECEMBER 27, 1972 397 People vs. Ferrer 4 tution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to 5 implement the principle of separation 6 of powers by confining legislatures to rule-making and thereby7 forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to 8 suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative 9intent, suffice to stigmatize a statute as a bill of attainder. In the case at bar, the Anti-Subversion Act was con________________ accord, Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867). This definition was adopted by this Court in People vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs, Montenegro, 91 Phil. 883, 885 (1952). 4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United States vs. Lovett, 328 U.S. 303, 315, (1946). 5 Chief Justice Warren referred to the Bill of Attainder Clause as an implementation of the separation of powers, "a general safeguard against legislative exercise of judicial function, or more simply, trial by legislature." United States vs. Brown, 381 U.S. 437 (1964). 6 "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher vs. Peck, 6 Cranch (10 U.S.) 87, 136 (1810), 7 "The legislative body in enacting bills of attainder exercises the powers and office of judge, it pronounces upon the guilt of the party, without any of the forms or saf eguards of trial... it fixes the degree of punishment in accordance with its own notions of the enormity of the offense." Cummings vs. Missouri, supra note 3, 8 Bills of this sort, says Mr. Justice Story, have been most usually passed in England in times of rebellion or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well as free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others." Comm. sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During the American revolution legislative punishments had been continued by state legislatures, when numerous bills of attainder were enacted against the Torries. 1 C. Antieu, Modern Constitutional Law, 425. 9 C. Antieu, supra note 8 at 423. 398 398 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer demned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.' " By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CPP without any of the f orms or saf eguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" is used solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its 10 focus is not on individuals but on conduct. This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and ______________ 10 The Supreme Court of the United States said in Fleming vs. Nestor, 363 U.S. 603, 613-14 (1960): "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 the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected," 399 VOL. 48, DECEMBER 27, 1972 399 People vs. Ferrer 11 12 Disclosure Act of 1959 which, in U.S. vs. Brown, was held to be a bill of attainder and therefore unconstitutionaL Section 504 provided in its pertinent parts as follows: "(a) No person who is or has been a member of the Communist Party .,, shall serve— "(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization ... during or for five years after the termination of his membership in the Communist Party... "(b) Any person who willfully violates this section ahall be fined not more than $10,000 or imprisoned for not more than one year, or both." This statute specifies the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: "Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder, Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed _______________ 11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV). 12 381 U.S. 437 (1965) (5-4 vote). 400 400 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability—members of the Communist Party. "Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lends support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a 'Communist-action organization/ under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of 'Communist-action organization' which the Board is to apply is set forth :a sec. 3 of the Act: "'[A]ny organization in the United States ... which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement...' 64 Stat 989, 50 USC sec. 782 (1958 ed.) "A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations set forth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a 'Communist-action organization,' the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it: "In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)" Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to 401 VOL. 48, DECEMBER 27, 1972 401 People vs. Ferrer secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizational guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that that is precisely the nature of conspiracy, which has been referred to as a "dragnet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any13 specific intent to further the unlawful goals of the Party. But the statute specifically requires that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have 14 been acquired "knowingly, willfully and by overt acts." The ingredient of specific intent to pursue the unlawful 15 goals of the Party must be shown by "overt acts." This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies _______________ 13 Keyishian vs. Board of Regents, 385 U.S. 589 (1967); Elfbrandt vs. Russell, 384 U.S. 11 (1966). 14 Cf. Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United States, 367 U.S. 290 (1961). 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 Party, I would like that membership to be proved by overt acts, by positive acts, because it may happen that one's name may appear in the list of members." Senate Cong. Rec. May 22, 1957, p. 1900. 402 402 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of 16 attainder. Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was17 shown to apply only to the members of the Ku KIux Klan. In the Philippines 18the validity of section 23 '(b) of the Industrial Peace Act, requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal 19or unconstitutional method," was upheld by this Court. Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inf lict punishment on them without a 20 judicial trial does it become a bill of attainder. It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of 21the United States during the Civil War from holding office, or 22 from exercising their profession, or which prohibited the payment of further com_______________ 16 Board of Governors of Federal Reserve System vs. Agnew 329 U.S. 441. 17 New York ex rel. Bryant vs. Zimmerman, 278 U.S 63 (1928). 18 Repealed by Rep. Act 4241. 19 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor, Feb. 27, 1969, 27 SCRA 40. 20 United States vs. Lovett, 328 U.S. 303 (1946). 21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867) 22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867). 403 VOL. 48, DECEMBER 27, 1972 People vs. Ferrer 403 pensation to individuals named in the Act on the basis 23of a finding that they had engaged in subversive activities, or which made it a crime for a member of the Communist 24 Party to serve as an officer or employee of a labor union, have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such 25 determination. 26 In New York ex rel. Bryant vs. Zimmerman, the New York legislature passed a law requiring every secret, oathbound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: "The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a ,difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purposes and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the.other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal associa________________ 23 United States vs. Lovett, 328 U.S. 303 (1946). 24 United States vs. Brown, 381 U.S. 437 (1965). 25 The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330, 35154 (1962). 26 278 U.S. 63 (1928). 404 404 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer tion in the included class: 'lt is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;' and later said of the other class: 'These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others/ Another of the courts said: 'lt is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;' and later said of the other class: 'Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies/ The third court, after recognizing 'the potentialities of evil in secret societies,' and observing that 'the danger of certain organizations has been judicially demonstrated/ —meaning in that state,—said: 'Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence." "We assume that the legislature had before it such information as was readily available, including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan, If so it was advised—putting aside controverted evidence—that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its membership was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its members an oath to shield and preserve 'white supremacy;' and in still another declared any person actively opposing its principles to be 'a dangerous 405 VOL. 48, DECEMBER 27, 1972 405 People vs. Ferrer ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;' that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the27punishment of what some of its members conceived to be crimes." In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to 28 be an illegal association. In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to 29 that of Soviet Russia 30 and Red China." More recently, in Lansang vs. Garcia, we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines." 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Jus______________ 27 28 Id. at 75-77. People vs. Evangelista, 57 Phil. 375 (1932); see also People vs. Evangelista, 57 Phil. 372 (1932); People 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. 30 L-33864. Dec. 11, 1971, 42 SCRA 448. 406 406 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer tice Frankfurter observed, "frequently a bill of attainder was . . . doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause—'No Bill of Attainder or ex post facto law shall be passed.'. . . Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that31it is not are persuasive that it cannot be a bill of attainder." 32 Thus in Gardner vs. Board of Public Works, the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: "... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California." In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: "... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ______________ 31 United States vs. Lovett, 328 U.S. 303, 318 (1946). 32 341 U.S. 716 (1951). 407 VOL. 48, DECEMBER 27, 1972 407 People vs. Ferrer "... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensation to named individuals or employees. Under these circumstances, viewed against the legislative background, the statute was held to have imposed penalties without judicial trial." Indeed, if one objection to the bill of attainder is that Congress thereby assumes judicial magistracy, then It must be demonstrated that the statute claimed to be a bill of attainder reaches past conduct and that the penalties it imposes are inescapable. As the U.S. Supreme Court observed with respect to the U.S. Federal Subversive Activities Control Act of 1950: "Nor is the statute made an act of 'outlawry' or of attainder by the fact that the conduct which it regulates is described with such particularity that, in probability, few organizations will come within the statutory terms. Legislatures may act to curb behaviour which they regard as harmful to the public welfare, whether that conduct is found to be engaged in by many persons or by one. So long as the incidence of legislation is such that the persons who engage in the regulated conduct, be they many or few, can escape regulation merely by altering the course of their own present activities, there can be no complaint of an 33 attainder," This statement, mutatis mutandis, may be said of the AntiSubversion Act. Section 4 thereof expressly states that the prohibition therein applies only to acts committed "After the approval of this Act." Only those who "knowingly, willfully and by overt acts aff iliate themselves with, become or remain members of the Communist Party of the Philippines and/or its successors or of any subversive association" after June 20, 1957, are punished. Those who were members of the Party or of any other subversive association at the time of the enactment of the law, were given the opportunity of purging themselves of liability by ______________ 33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1960). 408 408 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer renouncing in writing and under oath their membership in the Party. The law expressly provides that such renunciation shall operate to exempt such persons from 34 penal liability. The penalties prescribed by the Act are therefore not inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippines is an organized conspiracy for the overthrow of the Government is intended not to provide the basis for a legislative finding of guilt of the members of the Party but rather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are so fundamental that they are thought by some to occupy a "preferred position" in the hierarchy of 35 constitutional values. Accordingly, any limitation on their exercise must be justified by the existence of a substantive evil. This is the reason why before enacting the statute in question Congress conducted careful investigations and then stated its findings in the preamble, thus: "...[T]he Communist Party of the Philippines although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control; "... [T]he continued existence and activities of the Communist Party of the Philippines constitutes a clear, present and grave danger to the security of the Philippines ... [I]n the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with ________________ 34 Sec. 8. 35 E.g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-25721, May 26, 1969, 28 SCRA 351, 409 VOL. 48, DECEMBER 27, 1972 409 People vs. Ferrer this continuing menace to the freedom and security of the country." In truth, the constitutionality of the Act would be open to question if, instead of making these findings in enacting the statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial court failed to take proper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidates the crucial distinction, thus: "... A law forbidding the sale of beverages containing more than 3.2 per cent of alcohol would raise a question of legislative fact, i.e., whether this standard has a reasonable relation to public health, morals, and the enforcement problem. A law forbidding the sale of intoxicating beverages (assuming it is not so vague as to require supplementation by rule-making) would raise a question of adjudicative fact, i.e., whether this or that beverage is intoxicating within the meaning of the statute and the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itself an ultimate conclusion founded on underlying facts and on criteria of judgment for weighing them. "A conventional formulation is that legislative facts—those facts which are relevant to the legislative judgment—will not be canvassed save to determine whether there is a rational basis for believing that they exist, while adjudicative facts—those which tie the legislative enactment to the litigant—are to be demonstrated and found according to the ordinary standards prevailing for 36 judicial trials." 37 The test formulated in Nebbia vs. New York, and adopted 38 by this Court in Lansang vs. Garcia, is that "if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and _______________ 36 Freund, Review of Facts in Constitutional Cases, in Su preme Court and Supreme Law 47-48 (Cahn ed. 1954). 37 291 U.S. 502, 537 (1934). 38 L-33964, Dec. 11, 1971, 41 SCRA 448. 410 410 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test With respect to a similar statement of legislative findings in the U.S. Federal Subversive Activities Control Act of 1950 (that "Communist-action organizations" are controlled by the foreign government controlling the world Communist movement and that they operate primarily to "advance the objectives of such world Communist movement"), the U.S. Supreme Court said: "It is not for the courts to reexamine the validity of these legislative findings and reject them. ... They are the product of extensive investigation by Committees of Congress over more than a decade and a half. Cf. Nebbia v. New York, 291 U.S. 502, 516, 530. We certainly cannot dismiss them as unfounded irrational imaginings. ... And if we accept them, as we must, as a not unentertainable appraisal by Congress of the threat which Communist organizations pose not only to existing government in the United States, but to the United States as a sovereign, independent Nation. ... we must recognize that the power of Congress to regulate Communist organizations of this nature is 39 extensive." This statement, mutatis mutandis, may be said of the legislative findings articulated in the Anti-Subversion Act. That the Government has a right to protect itself against subversion is a proposition too plain to require elaboration, Self-preservation is the "ultimate value" of society. It surpasses and transcends every other value, "for if a society cannot protect its very structure from armed40 internal attack, ... no subordinate value can be protected" As Chief 41 Justice Vinson so aptly said in Dennis vs. United States: "Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial gov________________ 39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961). 40 Dennis vs. United States, 341 U.S. 494, 509 (1951). 41 Id. at 501. 411 VOL. 48, DECEMBER 27, 1972 411 People vs. Ferrer ernments is without force where the existing structure of government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the government by force and violence," 2. By carefully delimiting the reach of the Act to conduct (as explicitly described in section 4 thereof), Congress reaffirmed its respect for the rule that "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal42 liberties when the end can be more narrowly achieved." The requirement of knowing membership, as distinguished from nominal membership, has been held as a sufficient basis for penalizing 43 43 membership in a subversive organization. been stated: For, as has "Membership in an organization renders aid and encouragement to the organization; and when membership is accepted or retained with knowledge that the organization is engaged in an unlawful purpose, the one accepting or retaining membership with such knowledge makes himself a party to the unlawful enterprise in 44 which it is engaged." 3. The argument that the Act is unconstitutionally overbroad because section 2 merely speaks of "overthrow" of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase "knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitions of and the penalties prescribed for the different acts prescribed are stated in section 4 which requires that membership in the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear that ____________ 42 43 Shelton vs. Tucker, 364 U.S. 479 (1960). Scales vs. United States, 367 U.S. 203 (1961); see also Noto vs. United States, 367 U.S. 290 (1961). 44 Frankfeld vs, United States, 198 F. 2d, 879 (4th Cir. 1952). 412 412 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer the overthrow contemplated is "overthrow not only by force and violence but also by deceit, subversion and other illegal means." The absence of this qualification in section 2 appears to be due more to an oversight rather than to deliberate omission. Moreover, the word "overthrow" sufficiently connotes the use of violent and other illegal means. Only in a metaphorical sense may one speak of peaceful overthrow of governments, and certainly the law does not speak in metaphors. In the case of the Anti-Subversion Act, the use of the word "overthrow" in a metaphorical sense is hardly consistent with the clearly delineated objective of the "overthrow," namely, "establishing in the Philippines a totalitarian regime and place [sic] the Government under the control and domination of an alien power." What this Court once said in a prosecution for sedition is apropos: "The language used by the appellant clearly imported an overthrow of the Government by violence, and it should be interpreted in the plain and obvious sense in which it was evidently intended to be understood. The word 'overthrow' could not have been intended as referring to an ordinary change by the exercise of the elective franchise. The use of the whip [which the accused exhorted his audience to use against the Constabulary], an instrument designed to leave marks on the sides of adversaries, is inconsistent with the mild interpretation which the appellant would have us 45 impute to the language." IV The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence or other illegal means. Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country. _______________ 45 People vs. Nabong, 57 Phil. 455, 458 (1932). 413 VOL. 48, DECEMBER 27, 1972 413 People vs. Ferrer The membership clause of the U.S. Federal Smith Act is similar in many respects to the membership provision of the Anti-Subversion Act. The former provides: "Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliated with, any such society, group or assembly of persons, knowing the purpose thereof— "Shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or46agency thereof, for the five years next following his conviction. . .." In sustaining the validity of this provision, the Court said 47 in Scales vs. United States: "It was settled in Dennis that advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the first Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment." Moreover, as was held in another case, where the problems of accommodating the exigencies of self-preservation and the values of liberty are as complex and intricate as in the situation described in the legislative findings stated in the U.S. Federal Subversive Activities Control Act of 1950, the legislative judgment as to how that threat may best be met consistently with the safeguards of personal freedoms is not to be set aside merely because the judgment of judges 48 would, in the first instance, have chosen other methods. _______________ 46 18 U.S.C. sec. 2385. (emphasis added) 47 367 U.S. 203 (1961). 48 Communist Party vs. Subversive Activities Control Board. 367 U.S. 1 (1961). 414 414 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer For in truth, legislation, "whether it restrains freedom to hire or freedom to speak, is itself an effort at compromise between the claims of the social order and individual freedom, and when the legislative compromise in either case is brought to the judicial test the court stands one step 49 removed from the conflict and its resolution through law." V. The Act and its Title The respondent Tayag invokes the constitutional command that "no bill which may be enacted into law shall embrace more than 50one subject which shall be expressed in the title of the bill." What is assailed as not germane to or embraced in the title of the Act is the last proviso of section 4 which reads: "And provided, finally, That one who conspires with any other person to overthrow the Government of the Republic of the Philippines, or the government of any of its political subdivisions by force, violence, deceit, subversion or illegal means, for the purpose of placing such Government or political subdivision under the control and domination of any lien power, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same code." It is argued that the said proviso, in reality, punishes not only membership in the Communist Party of the Philippines or similar associations, but as well "any conspiracy by two persons to overthrow the national or any local government by illegal means, even if their intent is not to establish a totalitarian regime, but a democratic regime, even if their purpose is not to place the nation under an alien communist power, but under an alien democratic power like the United States or England or Malaysia or even an anticommunist power like Spain, Japan, Thailand or Taiwan or Indonesia." The Act, in addition to its main title ("An Act to Out law the Communist Party of the Philippines and Similar ____________ 49 P. A. Freund, The Supreme Court of the United States 75 (1961). 50 Const., art. VI, Sec. 21 (1). 415 VOL. 48, DECEMBER 27, 1972 415 People vs. Ferrer Associations, Penalizing Membership Therein, and for Other Purposes"), has a short title. Section 1 provides that "This Act shall be known as the Anti-Subversion Act." Together with the main title, the short title of the statute unequivocally indicates that the subject-matter is subversion in general which has for its fundamental purpose the substitution of a foreign totalitarian regime in place of the existing Government and not merely subversion by Communist conspiracies. The title of a bill need not be a catalogue or an index of 51 its contents, and need not recite the details of the Act. It is a valid title if it indicates in broad but clear terms the nature, scope, and consequences of the proposed law and its 52 operation. A narrow or technical construction is to be avoided, and the statute will be read fairly and reasonably in order not to thwart the legislative intent. We hold that the Anti-Subversion Act fully satisfies these requirements, VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of the AntiSubversion Act, we cannot overemphasize the need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of freedom of expression and belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act. The Government, in addition to proving such circumstances as may affect liability, must establish the following elements of the crime of joining the Communist Party of the Philippines or any other subversive association: (1) In the case of subversive organizations other than the Commmunist Party of the Philippines, (a) that the purpose of the organization is to overthrow the present Government of the Philippines and to establish in this country a totalitarian regime under the domination of a ______________ 51 Government vs. Hongkong & Shanghai Banking Corp., 66 Phil. 483. (1938). 52 Lindasan vs. Commission on Elections, L-28089, Oct. 25, 1967, 21 SCRA 496. 416 416 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer foreign power; (b) that the accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and (2) In the case of the Communist Party of the Philippines, (a) that the CPP continues to pursue the objectives which led Congress in 1957 to declare it to be an organized conspiracy for the overthrow of the Government by illegal means for the purpose of placing the country under the control of a foreign power; (b) that the accused joined the CPP; and (c) that he did so willfully, knowingly and by overt acts. We refrain from making any pronouncement as to the crime of remaining a member of the Communist Party of the Philippines or of any other subversive association; we leave this matter to f uture determination. ACCORDINGLY, the questioned resolution of September 15, 1970 is set aside, and these two cases are hereby remanded to the court a quo for trial on the merits. Costs de oficio.           Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.      Concepcion, C.J., concurs in the result.      Fernando, J., dissents in a separate opinion.      Makasiar, J., took no part.      Antonio, J., did not take part. FERNANDO, J., dissenting: It is with regret that I find myself unable to join the rest of my brethren in the decision 1reached upholding the validity of the Anti-Subversion Act. It is to be admitted that the learned and scholarly opinion of Justice Castro has the impress of conscientious and painstaking scrutiny of the constitutional issues raised. What is more, the stress in the concluding portion thereof on basic guidelines that ______________ 1 Rep. Act No. 1700 (1957). 417 VOL. 48, DECEMBER 27, 1972 417 People vs. Ferrer will assure in the trial of those prosecuted under such Act respect for their constitutional rights is to be commended. Nonetheless, my own reading of the2 decisions cited, interpreting the bill of attainder clause coupled with the fears, perhaps induced by a too-latitudinarian construction 3 of the guarantees of f reedom4 of belief and expression as well as freedom of association as to impermissible inroads to which they may be exposed, compels a different conclusion. Hence this dissent. 1. There is to be sure no thought on my part that the equally pressing concern of state saf ety and security should be ignored. The political branches of the government would lay themselves open to a justifiable indictment for negligence had they been remiss in their obligation to safeguard the nation against its sworn enemies. In a simpler era, where the overthrow of the government was usually through the rising up in arms, with weapons far less sophisticated than those now in existence, there was no constitutional issue of the magnitude that now confronts us. Force has to be met with force. It was as clearcut as that. Advances in science as well as more subtle methods of inducing disloyalty and weakening the sense of allegiance have introduced complexities in coping with such problems. There must be then, and I am the first to recognize it, a greater understanding for the governmental response to situations of that character. It is in that light that the validity of the Anti-Subversion Act is to be appraised. From my standpoint, and I am not presumptuous enough to claim that it is the only perspective or that is the most realistic, I f eel that there was an insufficient appreciation of the compulsion of the constitu______________ According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill of 2 attainder shall be enacted." 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 peaceably to assemble and petition the Government for redress of grievances." 4 According to Art. III, Sec. 1, par. 4: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired." 418 418 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer tional commands against bills of attainder and abridgment of free speech. I am comforted by the thought that even had my view prevailed, all that it would mean is that a new legislation, more in comformity to my way of thinking to what is ordained by the fundamental law, would have to be enacted. No valid fear need be entertained then that a setback would be occasioned to legitimate state efforts to stem the tide of subversive activities, in whatever form manifested. 2. The starting point in any inquiry as to the significance of the bill of attainder clause is the meaning attached to it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November 19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A bill of attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4 Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convicted and sentenced to death without a jury, without a hearing in court, without hearing the witnesses against him and without regard to the rules of evidence. His blood was attainted or corrupted, rendering him devoid 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 act was known as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuart oppression. Once, the name of Thomas Jefferson was included in a bill of attainder presented to Parliament because of his reform 5 activities." Two American Supreme Court decisions were thus in the minds of the framers. They are Cummings v. 6 7 Missouri and Ex parte Garland. They speak unequivocally. Legislative acts, no matter what their form, that apply either to named individuals or easily _____________ 5 Footnote 2, p, 9 of Opinion of the Court. 6 4 Wall. 277 (1867). 7 4 Wall. 333 (1867). 419 VOL. 48, DECEMBER 27, 1972 419 People vs. Ferrer ascertainable members of a group in such a way as to inflict on them punishment amounting to a deprivation of any right, civil or political, without judicial trial are bills of 8 attainder prohibited by the Constitution. 9 Cummings v. Missouri was a criminal prosecution of a Catholic priest for refusing to take the loyalty oath required by the state Constitution of Missouri of 1865. Under such a provision, lawyers, doctors, ministers, and other professionals must disavow that they had ever, "by act or word," manifested a "desire" for the success of the nation's enemies or a sympathy" with the rebels of the American Civil War. If they swore falsely, they were guilty of perjury. If they engaged in their professions without the oath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder, identified as any legislative act inflicting punishment without judicial trial. The deprivation of any right, civil or political, previously enjoyed, amounted to a punishment. Why such a conclusion was unavoidable was explained in the opinion of Justice Field thus: "A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the 'textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense. * * * If the clauses of the 2d article of the Constitution of Missouri, to which we have referred, had in terms declared that Mr. Cummings was guilty, or should be held guilty, of having been in armed hostility to the United ______________ 8 Cf. United States v. Lovett, 328 US 303 (1946). 9 4 Wall. 277 (1867). 420 420 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer States, or of having entered that state to avoid being enrolled or drafted into the military service of the United States, and, therefore, should be deprived of the right to preach as a priest of the Catholic church, or to teach in any institution of learning, there could be no question that the clauses would constitute a bill of attainder within the meaning of the Federal Constitution. If these clauses, instead of mentioning his name, had declared that all priests and clergymen within the state of Missouri were guilty of these acts, or should be held guilty of them, and hence be subjected to the like deprivation, the clauses would be equally open to objection. And further, if these clauses had declared that all such priests and clergymen should be so held guilty, and be thus deprived, provided they did not, by a day designated, do certain specified acts, they would be no less within the inhibition of the Federal Constitution. In all these cases there would be the legislative enactment creating the deprivation, without any of the ordinary forms and guards provided for the security of the citizen in the10 administration of justice by the established tribunals." On the very same day that the11ruling in Cummings was handed down, Ex parte Garland was also decided. That was a motion for leave to practice as an attorney before the American Supreme Court. Petitioner Garland was admitted to such bar at the December term of 1860. Under the previous rules of such Court, all that was necessary was that the applicant have three years practice in the state courts to which he belonged. In March 1865, the rule was changed by the addition of a clause requiring that an oath be taken under the Congressional acts of 1862 and 1865 to the effect that such candidate for admission to the bar had never voluntarily borne arms against the United States. Petitioner Garland could not in conscience subscribe to such an oath, but he was able to show a presidential pardon extended on July 15, 1865. With such act of clemency, he moved that he be allowed to continue in _____________ 10 Ibid, 323, 325. 11 4 Wall. 333 (1867). 421 VOL. 48, DECEMBER 27, 1972 421 People vs. Ferrer practice contending that the test oath requirement was unconstitutional as a bill of attainder and that at any rate, he was pardoned. The same ruling was announced by the Court again through Justice Field. Thus: "In the exclusion which the statute adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed; and f or other of the acts it adds a new punishment to that before prescribed, and it is thus brought within the f urther inhibition of the Constitution against the passage of an ex post facto law, In the case of Cummings v. Missouri, just decided, * * * we have had occasion to consider at length the meaning of a bill of attainder and of an ex post facto law in the clause of the Constitution forbidding their passage by the states, and it is unnecessary to repeat here what we there said. A like prohibition is contained in the Constitution against enactments of this kind by Congress; and the argument presented in that case against certain clauses of the Constitution of Missouri is equally applicable to the act of 12 Congress under consideration in this case." There was a reiteration of the Cummings and Garland 13 doctrine in United States v. Lovett, decided in 1946. There it was shown that in 1943 the respondents, Lovett, Watson, and Dodd, were and had been for several years working for the government. The government agencies, which had lawfully employed them, were fully satisfied with the quality of their work and wished to keep them employed on their jobs. Over their protest, Congress provided in Section 304 of the Urgent Deficiency Appropriation Act of 1943, by way of an amendment attached to the House Bill, that after November 15, 1943, no salary or compensation should be paid respondent out of any money then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were prior to November 15, 1943, again appointed to jobs by the President with the advice and consent of the Senate. Notwithstanding such Congressional enactment, and the ______________ 12 Ibid, 377-378. 13 328 US 303. 422 422 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer failure of the President to reappoint the respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15, 1943, but their compensation was discontinued after that date. Respondents brought this action in the Court of Claims for the salaries to which they felt entitled. The American Supreme Court stated that its inquiry was thus confined to whether the action in the light of proper construction of the Act presented a justiciable controversy, and, if so, whether Section 304 is a bill of attainder insofar as the respondents were concerned. After holding that there was a justiciable view, the American Supreme Court in an opinion by Justice Black categorically affirmed: "We hold that Section 304 falls precisely within the category of Congressional actions which the Constitution barred by providing that 'No Bill of Attainder or ex post facto Law shall be passed.' In Cummings v. State of Missouri, * * * this Court said, 'A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.' * * * On the same day the Cummings case was decided, the Court, in Ex parte Garland, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. Adherence to this principle 14 requires invalidation of Section 304. We do adhere to it." 15 United States v. Brown a 1965 decision was the first _______________ 14 lbid, 315-316. 15 381 US 437, 423 VOL. 48, DECEMBER 27, 1972 423 People vs. Ferrer case to review a conviction under the Labor-Management Reporting and Disclosure Act of 1959, making it a crime for a member of the Communist Party to serve as an officer or, except in clerical or custodial positions, an employee of a labor union. Respondent Brown, a longshoreman on the San Francisco docks, and an open and avowed Communist, for more than a quarter of a century was elected to the Executive Board of Local 10 of the International Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961. On May 24, 1961, respondent was charged in a one-count indictment returned in a district court of California with serving as a member of an executive board of a labor organization while a member of the Communist Party, in willful violation of the above provision. The question of its validity under the bill of attainder clause was thus properly raised for adjudication. While convicted in the lower court, the Court of Appeals for the Ninth Circuit reversed. It was sustained by the American Supreme Court. As noted in the opinion by Chief Justice Warren, "the wide variation in form, purpose and effect of anteConstitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of 16 the judicial function, or more simply—trial by legislature." Then after referring to Cummings, Garland, and Lovett, Chief Justice Warren continued: "Under the line of cases just outlined, Sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the _____________ 16 Ibid, 442. 424 424 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leave to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability—members of the 17 Communist Party." Even Communist Party v. Subversive Activities Control 18 Board, where the provision of the Subversive Activities Control Act of 1950 requiring the Communist Party of the United States to register was sustained, the opinion of Justice Frankfurter for the Court, speaking for a fiveman majority, did indicate adherence to the Cummings principle. Had the American Communist Party been outlawed, the outcome certainly would have been different. Thus: "The Act is not a bill of attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. * * * The Subversive Activities Control Act is not of that kind. It requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made _____________ 17 Ibid, 18 449-450. 367 US 1 (1961). 425 VOL. 48, DECEMBER 27, 1972 425 People vs. Ferrer after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence. Present activity constitutes an operative element to which the statute attaches legal consequences; not merely a point of reference for the ascertainment of particular persons 19 ineluctably designated by the legislature." The teaching of the above cases, which I find highly persuasive considering what appeared to be in the minds of the framers of the 1934 Constitutional Convention yields for me the conclusion that the Anti-Subversion Act falls within the ban of the bill of attainder clause. It should be noted that three subsequent cases upholding the Cummings and Garland doctrine were likewise cited in the opinion of the Court. The interpretation accorded to them by my brethren is, of course, different but I am unable to go along with them especially in the light of the categorical language appearing in Lovett. This is not to Iose sight of the qualification that for them could deprive such a holding of its explicit character as shown by this excerpt from the opinion of the Court: "Indeed, were the AntiSubversion Act a bill of attainder it would be totally unnecessary to charge communists in court, as the law alone, without more, would suffice to secure their conviction and punishment. But the fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party knowing its subversive character and with specific intent to further its objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place it under the control and 20 domination of a foreign power. While not implausible, I find difficulty in yielding acceptance. In Cummings, there was a criminal prosecution of the Catholic priest who refused to take the loyalty oath. ________________ 19 Ibid, 86-87. 20 Opinion of the Court, p. 15. 426 426 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer Again in Brown, there was an indictment of the labor leader who, judging by his membership in the Communist Party, did transgress the statutory provision subsequently found offensive to the bill of attainder clause. If the construction I would place on the oft-repeated pronouncement of the American Supreme Court is correct, then the mere fact that a criminal case would have to be instituted would not save the statute. It does seem clear to me that from the very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations," not to mention other specific provisions, the taint of invalidity is quite marked. Hence, my inability to concur in the judgment reached as the statute not suffering from any fatal infirmity in view of the Constitutional prohibition against bills of attainder. 3. This brings me to the question of the alleged repugnancy of the Anti-Subversion Act to the intellectual liberty saf eguarded by the Constitution in terms of the f 21 ree speech and f ree association guarantees. It is to be admitted that at the time of the enactment of Republic Act No, 1700, the threat that Communism, the Russian brand then, did pose was a painful reality for Congressional leaders and the then President. Its shadow fell squarely across the lives of all. Subversion then could neither be denied nor disparaged. There was, in the expert opinion of those conversant with such matters, a danger to our national existence of no mean character. Nonetheless, the remedies to ward off such menace must not be repugnant to our Constitution. We are legally precluded from acting in any other way. The apprehension justly felt is no warrant for throwing to the discard f undamental guarantees. Vigilant we had to be, but not at the expense of constitutional ideals. One of them, certainly highly-prized of the utmost sig_______________ 21 According to Art. III, Sec. 1, par. 6: "The right to form associations or societies for purposes not contrary to law shall not be abridged/' Paragraph 8 of this section reads as follows: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 427 VOL. 48, DECEMBER 27, 1972 People vs. Ferrer 427 nificance, is the right to dissent. One can differ, even object; one can express dissatisfaction with things as they are. There are times when one not only can but must Such dissent can take the form of the most critical and the most disparaging remarks. They may give offense to those in authority, to those who wield power and influence. Nevertheless, they are entitled to constitutional protection. Insofar as the content of such dissent is concerned, the limits are hardly discernible. It cannot be confined to trivial matters or to such as are devoid of too much significance. It can reach the heart of things. Such dissent may, for those not so adventurous in the realm of ideas, possess a subversive tinge. Even those who oppose a democratic form of government cannot be silenced. This is true especially in centers of learning where scholars competent in their line may, as a result of their- studies, assert that a future is bleak for the system of government now favored by Western democracies. There may be doubts entertained by some as to the lawfulness of their exercising this right to dissent to the point of advocacy of such a drastic change. Any citizen may do so without fear that thereby he incurs the risk of a penal sanction. That is merely to affirm the truth of this ringing declaration f rom Jefferson: "If there be any among us who would wish to dissolve this union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left 22 free to combat it." As was so well put by the philosopher, Sidney Hook: "Without holding the right to the expression of heresy at any time and place to be absolute—for even the right to non-heretical speech cannot be absolute—it still seems wise to tolerate the expression even of Communist, fascist and other heresies, lest in outlawing them we include other kinds of heresies, and deprive ourselves of the opportunity to acquire possibly sounder ideas than our 23 own,". _______________ 22 Jefferson's First Inaugural Address, March 4, 1801, in Padover, ed., The Complete Jefferson, 385 (1943). 23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953). 428 428 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer The line is to be drawn, however, where the words amount to an incitement to commit the crime of sedition or rebellion. The stage has been reached, to follow the formulation of Cardozo, where thought merges into action. Thus is loyalty shown to the freedom of speech or press ordained by the Constitution. It does not bar the expression of views affecting the very life of the state, even if opposed to its f undamental presuppositions. It allows, if it does not require as a matter of fact, that unorthodox ideas be freely ventilated and fully heard. Dissent is not disloyalty. Such an approach is reinforced by the well-settled constitutional principle "that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of regulation is the touchstone in an 24area so closely related to our most precious freedoms." This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area 25 of protected freedoms." It is indispensable then that "an overbreadth" in the applicability of the statute be avoided. If such be the case, then the line dividing the valid from the constitutionally infirm has been crossed. That for me is the conclusion to be drawn from the wording of the AntiSubversion Act. There is to my mind support for the stand I take In the dissent of Justice Black in the Communist Party case discussed above. What is to be kept in view is that a legislative measure certainly less drastic in its treatment of the admittedly serious Communist problem was found in the opinion of this noted jurist offensive to the First Amendment of the American Constitution safeguarding ______________ 24 Gonzalez v. Commission on Elections, 27 SCRA 835, 871 (1969) citing Shelton v. Tucker, 364 US 479 (1960) and NAACP v. Button, 371 US 415 (1963). 25 NAACP v. Alabama, 377 US 288 (1964). 429 VOL. 48, DECEMBER 27, 1972 429 People vs. Ferrer free speech. Thus: "If there is one thing certain about the First Amendment it is that this Amendment was designed to guarantee the freest interchange of ideas about all public matters and that, of course, means the interchange of all ideas, however such ideas may be viewed in other countries and whatever change in the existing structure of government it may be hoped that these ideas will bring about. Now, when this country is trying to spread the high ideals of democracy all over the world—ideals that are revolutionary in many countries—seems to be a particularly inappropriate time to stifle First Amendment freedoms in this country. The same arguments that are used to justify the outlawry of Communist ideas here could be used to justify26 an outlawry of the ideas of democracy in other countries." Further he stated: "I believe with the Framers of the First Amendment that the internal security of a nation like ours does not and cannot be made to depend upon the use of force by Government to make all the beliefs and opinions of the people fit into a common mold on any single subject. Such enforced conformity of thought would tend only to deprive our people of the bold spirit of adventure and progress which has brought this Nation to its present greatness. The creation of public opinion by groups, organizations, societies, clubs, and parties has been and is a necessary part of our democratic society. Such groups, like the Sons of Liberty and the American Corresponding Societies, played a large part in creating sentiment in this country that led the people of the Colonies to want a nation of their own. The Father of the Constitution—James Madison—said, in speaking of the Sedition Act aimed at crushing the Jefferson Party, that had that law been in effect during the period before the Revolution, the United States might well have continued to be 'miserable colonies, groaning under a foreign yoke/ In my judgment, this country's internal security can better be served by depending upon the affection of the people than by attempting to instill them with fear and dread ________________ 26 Communist Party v. Subversive Activities Control Board, 367 US 1, 148. 430 430 SUPREME COURT REPORTS ANNOTATED E1. People vs. Ferrer of the power of Government. The Communist Party has never been more than a small group in this country. And its numbers had been dwindling even before the Government began its campaign to destroy the Party by force of law. This was because a vast majority of the American people were against the Party's policies and overwhermingly rejected its candidates year after year. That is the true American way of securing this Nation against dangerous ideas. Of course that is not the way to protect the Nation against actions of violence and treason. The Founders drew a distinction in our Constitution which we would be wise to follow. They gave the Government the fullest power to prosecute overt actions in violation of valid laws but withheld any power to punish people for nothing 27 more than advocacy of their views." With the sentiments thus expressed uppermost in my mind and congenial to my way of thinking, I cannot share the conclusion reached by my brethren as to the AntiSubversion Act successfully meeting the test of validity on free speech and freedom of association grounds. 4. It could be that this approach to the constitutional questions involved arises from an appraisal of the challenged statute which for me is susceptible of an interpretation that it does represent a defeatist attitude on the part of those of us, who are devotees at the shrine of a liberal-democratic state. That certainly could not have been the thought of its framers; nonetheless, such an assumption is not devoid of plausibility for why resort to this extreme measure susceptible as it is to what apparently are not unfounded attacks on constitutional grounds? Is this not to ignore what previously was accepted as an obvious truth, namely that the light of liberalism sends its shafts in many directions? It can illuminate, and it can win the hearts and minds of men. It is difficult for me to accept the view then that a resort to outlawry is indispensable, that suppression is the only answer to what is an admitted evil. There could have been a greater ex____________ 27 Ibid, 167-168. 431 VOL. 48, DECEMBER 27, 1972 431 People vs. Ferrer posure of the undesirability of the communist creed, its contradictions and arbitrariness, its lack of fealty to reason, its inculcation of disloyalty, and its subservience to centralized dictation that brooks no opposition. It is thus, in a realistic sense, a manifestation of the fear of free thought and the will to suppress it. Far better, of course, is the propaganda of the deed. What the communists promise, this government can fulfill. It is up to it then to take remedial measures to alleviate the condition of our countrymen whose lives are in a condition of destitution and misery. It may not be able to change matters radically. At least, it should take earnest steps in that direction. What is important f or those at the bottom of the economic pyramid is that they are not denied the opportunity for a better life. If they, or at least their children, cannot even look forward to that, then a constitutional regime is nothing but a mockery and a tragic illusion. Such a response, I am optimistic enough to believe, has the merit of thinning, if not completely eliminating, the embattled ranks and outposts of ignorance, fanaticism and error. That for me would be more in accordance with the basic proposition of our polity. This is not therefore to preach a doctrine of abject 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. 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 set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act. Resolution set aside and cases remanded to court a quo for trial on the merits. Notes.—Membership in the Communist Party per se was not punishable as conspiracy to commit rebellion before the passage of R.A. No. 1700 in 1957, unless coupled with 432 432 SUPREME COURT REPORTS ANNOTATED People vs. Ferrer action or advocacy of action to rebellion (People vs. Hernandez, 11 SCRA 223). R.A. 1700, which is known as the Anti-Subversion Act, and which penalizes membership in any organization or association committed to subvert the Government, cannot be applied to criminal cases filed before the said law went into force nor can it be applied to acts committed before its passage, (People vs. Lava. 28 SCRA 72). Freedom of Speech; Right of Association and Assembly. The State has the power to regulate the rights of free speech and assembly. (Gallego vs. People, 8 SCRA 813), Thus, in Gonzales vs. Commission on Elections, (27 SCRA 835), it was held that the freedom of expression is "not absolute for it would be too much to insist that at all time and under all circumstances it should remain unfettered and unrestrained as there are other social values that press for recognition." The freedom of expression may be limited if there is a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. (Ibid.) The "balancing-of-interest" test may also be applied in determining whether the point of viable equilibrium represented by the legislative judgment embodied in the law is an appropriate and reasonable one, in the light of both the historic purpose of the constitutional safeguard of speech and assembly and the general conditions obtaining in the community. (Ibid.) To be considered in restricting individual freedom are such factors as (a) the social importance and value of the freedom so restricted, (b) the specific thrust of the restriction, (c) the value and importance of the public interest; (d) the propriety and reasonableness of the restriction and the possible achievement by other measures of the safeguard to the public interest. (Ibid.) The stress on the f reedom of association, as held in Gonzales vs. COMELEC, .supra, should be on its political significance. The Constitution limits this particular freedom 433 VOL. 48, DECEMBER 27, 1972 433 People vs, Ferrer of association in the sense that there could be an abridgment of the right to form an association or societies when their purposes are contrary to law. (Ibid.; Imbong vs. Commission on Elections, 35 SCRA 28). The law that would regulate the purposes for which associations and societies may be formed or would declare their purposes mala prohibita must prove, however, the usual constitutional test of reasonableness and furthermore, must not abridge the freedom of speech and press, (In re Kay ViIIegas Kami, Inc ., 35 SCRA 429}. LEGAL RESEARCH SERVICE See SCRA Quick Index-Digest, volume 1, page 375 on Constitutional Law; volume 2, page 1928 on Statutory Construction. See also Velayo's Digest, volume 5, page 1 on the Constitutional Law; volume 21, page 191 on Statutes, Aruego, J.M. and Others, The Philippine Constitution, 5 volumes, 1969-72 edition. Cuaderno, M., The Framing of the Constitution of the Philippines, 1937 edition. Fernando, E.M., The Power of Judicial Review, 1968 edition, Fernando, E.M., The Bill of Rights, 1972 edition. Singco, V.G., Philippine Constitutional Law, 1960 edition, Cortes, L, Constitutional Foundations of Privacy, 1970 edition. ________________ 434 © Copyright 2020 Central Book Supply, Inc. All rights reserved. * No. L-63915. April 24, 1985. LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. _______________ * EN BANC. 28 28 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera Mandamus; Private individuals who seek to procure the enforcement of a public duty (e.g. the publication in the Official Gazette of Presidential Decrees, LOI, etc.) are real parties in interest in mandamus case.—The reasons given by the Court in recognizing a private citizen’s legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Same; Statutes; Fact that a Presidential Decree or LOI states its date of effectivity does not preclude their publication in the Official Gazette as they constitute important legislative acts, particularly in the present situation where the President may on his own issue laws.—The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Same; Same; Same.—Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance than at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the lawmaking process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: “Bajo la denoroinación genérica de leyes, se comprenden también los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.” Same; Same; C.A. 638 imposes a duty for publication of Presidential decrees and issuances as it uses the words “shall be 29 VOL. 136, APRIL 24, 1985 29 Tañada vs. Tuvera published.”—The very first clause of Section 1 of Commonwealth Act 638 reads: “There shall be published in the Official Gazette x x x.” The word “shall” used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. Same; Same; But administrative and executive orders and those which affect only a particular class of persons need not be published.—The publication of all presidential issuances “of a public nature” or “of general applicability” is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. Same; Same; Due Process; Publication of Presidential decrees and issuances of general application is a matter of due process.—It is needless to add that the publication of presidential issuances “of a public nature” or “of general applicability” is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. Same; Same; Same; Presidential Decrees and issuances of general application which have not been published shall have no force and effect.—The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court’s declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank. 30 30 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera Same; Same; Same; Implementation of Presidential Decrees prior to their publication in the Official Gazette may have consequences which cannot be ignored.—Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is “an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration x x x that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Same; Same; Same; Only P.D. Nos. 1019 to 1030, 1278 and 1937 to 1939, inclusive, have not been published. It is undisputed that none of them has been implemented.—From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive. 1278, and 1937 to 1939, inclusive, have not been so published. Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. FERNANDO, C.J., concurring with qualification: Statutes; Due Process; I am unable to concur insofar as the opinion written by Justice Escolin would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished Presidential issuances to have a binding force and effect.—It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is to be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past “presidential issuances.” 31 VOL. 136, APRIL 24, 1985 31 Tañada vs. Tuvera Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. Same; Same; The Civil Code rule on publication of statutes is only a legislative enactment and does not and cannot have the force of a constitutional command A later executive or legislative act can fix a different rule.—Let me make clear therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, “unless it is otherwise provided.” Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. Same; Same; I am unable to agree that decrees not published are devoid of any legal character.—Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. TEEHANKEE, J., concurring: Statutes; Unless laws are published there will no basis for the rule that ignorance of the law excuses no one from compliance therewith.—Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that “Ignorance of the law excuses no one from compliance therewith.” 32 32 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera Same; Respondent’s theory that a Presidential Decree that fixes its date of effectivity need not be published misreads Art. 2 of the Civil Code.—Respondents’ contention based on a misreading of Article 2 of the Civil Code that “only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity” is manifestly untenable. The plain text and meaning of the Civil Code is that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided,” i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it “shall take effect [only] one year [not 15 days] after such publication.” To sustain respondents’ misreading that “most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity” would be to nullify and render nugatory the Civil Code’s indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination. MELENCIO-HERRERA, J., concurring: Statutes; When a date of effectivity is mentioned in the Decree, but becomes effective only 15 days after publication in the Gazette, it will not mean that the Decree can have retroactive effect to the expressed date of effectivity.—I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights. PLANA, J., separate opinion: Constitutional Law; Statutes; Due Process; The Constitution does not require prior publication for laws to be effective and while 33 VOL. 136, APRIL 24, 1985 33 Tañada vs. Tuvera due process require prior notice, such notice is not necessarily publication in the Official Gazette.—The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Same; Same; Same; C.A. 638 does not require Official Gazette publication of laws for their effectivity.—Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply “An Act to Provide for the Uniform Publication and Distribution of the Official Gazette.” Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, “important legislative acts and resolutions of a public nature of the Congress of the Philippines” and “all executive and administrative orders and proclamations, except such as have no general applicability.” It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only “important” ones “of a public nature.” Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. PETITION to review the decision of the Executive Assistant to the President. The facts are stated in the opinion of the Court. ESCOL1N, J.: Invoking the people’s right to be informed on matters of public concern, a right recognized in Section 6, Article IV of 34 34 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera 1 the 1973 Philippine Constitution, as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 10601061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 18131817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248-251, 253261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-445, 473, 486, 488, 498, 501. 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837839, 878-879, 881, 882, 939-940, 964, 997, 11491178, 1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 15941600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839_______________ 1 “Section 6. The right of the people to information on matters of public concern shall be recognized, access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizens subject to such limitation as may be provided by law.” 35 VOL. 136, APRIL 24, 1985 35 Tañada vs. Tuvera 1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 21632244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852, 854857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged 2 nonpublication of the presidential issuances in question said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being “aggrieved parties” within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: “SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.” _______________ 2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aldanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA 151; Palting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392. 36 36 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As 3early as the 1910 case of Severino vs. Governor General, this Court held that while the general rule is that “a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large,” and “it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469”, nevertheless, “when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].” Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: “We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason ‘that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error.’ _______________ 3 16 Phil. 366, 378. 37 VOL. 136, APRIL 24, 1985 37 Tañada vs. Tuvera “No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.” The reasons given by the Court in recognizing a private citizen’s legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: “Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, x x x” The interpretation given by respondent is in accord with this Court’s construction of said article. In a long line of 4 decisions, this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date— for then the date of _______________ 4 Camacho vs. Court of Industrial Relations, 80 Phil. 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines vs. Encarnacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179. 38 38 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera publication is material for determining its date of effectivity, which is the fifteenth day following its publication—but not when the law itself provides for the date when it goes into effect. Respondents’ argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: “Section 1. There shall be published in the Official Gazette [1] all important legislative acts and resolutions of a public nature of tne Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability: [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. x x x” The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for 39 VOL. 136, APRIL 24, 1985 39 Tañada vs. Tuvera the diligent ones, ready access to the legislative records— no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: “Bajo la denominación genérica de leyes, se comprenden también los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dietadas de conformidad con las mismas 5 por el Gobierno en uso de su potestad.” The very first clause of Section 1 of Commonwealth Act 638 reads: “There shall be published in the Official Gazette x x x.” The word “shall” used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances “of a public nature” or “of general applicability” is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been 6 circularized to all concerned. It is needless to add that the publication of presidential issuances “of a public nature” or “of general applicability” is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio _______________ 5 1 Manresa, Codigo Civil, 7th Ed., p. 146. 6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150. 40 40 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera 7 Teehankee said in Peralta vs. COMELEC : “In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.” The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court’s declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set8 forth in Chicot County Drainage District vs. Baxter Bank to wit: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects—with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These ques_______________ 7 82 SCRA 30, dissenting opinion. 8 308 U.S. 371, 374. 41 VOL. 136, APRIL 24, 1985 41 Tañada vs. Tuvera tions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Consistently9 with the above principle, this Court in Rutter vs. Esteban sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is “an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration x x x that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, 10 and 1937 to 1939, inclusive, have not been so published. Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented 11 or enforced by the government. In Pesigan vs. Angeles, the Court, through Justice Ramon Aquino, ruled that “publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby.” The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that “the government, as a matter of policy, refrains _______________ 9 93 Phil. 68. 10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to her letter-request regarding the respective dates of publication in the Official Gazette of the presidential issuances listed therein. No report has been submitted by the Clerk of Court as to the publication or nonpublication of other presidential issuances. 11 129 SCRA 174. 42 42 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.” WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED.      Relova, J., concur.           Fernando, C.J., concurs in a separate opinion expressing the view that without publication, a due process question may arise but that such publication need not be in the Official Gazette. To that extent he concurs with the opinion of Justice Plana.      Teehankee, J., files a brief concurrence.      Makasiar, J., concurs in the opinion of Chief Justice Fernando.      Aquino, J., no part.      Concepcion, Jr., J., on leave.      Abad Santos, J., I concur in the separate opinion of the Chief Justice.           Melencio-Herrera, J., see separate concurring opinion.      Plana, J., see separate opinion.      Gutierrez, Jr., J., I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.      De la Fuente, J., Insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.           Cuevas, J., I concur in the opinion of the Chief Justice and Justice Plana.           Alampay, J., I subscribe to the opinion of Chief Justice Fernando and Justice Plana. 43 VOL. 136, APRIL 24, 1985 43 Tañada vs. Tuvera FERNANDO, C.J., concurring with qualification: There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished “presidential issuances” to have binding force and effect. I shall explain why. 1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past “presidential issuances.” Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity. 2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: “The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such 44 44 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera notice is not necessarily by publication in the Official Gazette. The due process clause is not that 1 precise.” I am likewise in agreement with its closing paragraph: “In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the 2 Official Gazette.” 3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government “must be ascertainable in some form if it is to be enforced 3 at all.” It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, 4 “if it is unknown and unknowable.” Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such “Presidential Issuances” could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of5 course, its ex post facto character becomes evident. In civil cases though, retroac_______________ 1 Separate Opinion of Justice Plana, first paragraph. He mentioned in this connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A. 2 Ibid, closing paragraph. 3 Learned Hand, The Spirit of Liberty 104 (1960). 4 Cardozo, The Growth of the Law, 3 (1924). 5 Cf. Nuñez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433. 45 VOL. 136, APRIL 24, 1985 45 Tañada vs. Tuvera tivity as such is not conclusive on the due process aspect There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or 6not it could in such a case be tainted by infirmity. In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes. 4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, “unless it is otherwise provided.” Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement. I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion. _______________ 6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172. 46 46 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstanced and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that “it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey 1 before they can be punished for its violation,” citing the settled principle based on due process enunciated in earlier cases that “before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties.” Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that “Ignorance of the law excuses no one from compliance therewith.” Respondents’ contention based on a misreading of Article 2 of the Civil Code that “only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity” is manifestly untenable. The plain text and meaning of the Civil Code is that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided,” i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it “shall take effect [only] one _______________ 1 People vs. de Dios, G.R. No. 11003, Aug. 31, 1959, per the late Chief Justice Paras. 47 VOL. 136, APRIL 24, 1985 47 Tañada vs. Tuvera 2 year [not 15 days] after such publication.” To sustain respondents’ misreading that “most laws or decrees specify the date of their effectivity and for this reason, publication3 in the Official Gazette is not necessary for their effectivity” would be to nullify and render nugatory the Civil Code’s indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination. MELENCIO-HERRERA, J., concurring: I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights. SEPARATE OPINION PLANA, J.: The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, ** unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected op _______________ 2 Notes in brackets supplied. 3 Respondents’ comment, pp. 14-15. ** See e.g., Wisconsin Constitution. Art. 7, Sec. 21: “The legislature shall provide publication of all statute laws . . . and no general law shall be in force until published.” See also State ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A. 48 48 SUPREME COURT REPORTS ANNOTATED Tañada vs. Tuvera parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. Article 2 of the Civil Code provides that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.” Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply “An Act to Provide for the Uniform Publication and Distribution of the Official Gazette.” Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, “important legislative acts and resolutions of a public nature of the Congress of the Philippines” and “all executive and administrative orders and proclamations, except such as have no general applicability.” It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only “important” ones “of a public nature.” Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role. 49 VOL. 136, APRIL 25, 1985 49 In Re: Milagros Santia In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. Respondents ordered to publish all unpublished presidential issuances in the Official Gazette. ——o0o—— © Copyright 2020 Central Book Supply, Inc. All rights reserved. 174 SUPREME COURT REPORTS ANNOTATED Pesigan vs. Angeles * No. L-64279. April 30, 1984. ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners, vs. JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents. Appeals; R.A. 5440 superseded Rule 42 of the Rules of Court. —The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court. Statutes; Criminal Law; An Executive Order (Exec. Order No. 626-A dated Oct. 25, 1980), prohibiting and penalizing transportation of carabaos from one province to another cannot be enforced before its publication in the Official Gazette.—We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as already noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised Administrative Code. Same; Same; Same.—That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or sanction makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by means of publication in the Gazette before violators of the executive order can be bound thereby. _______________ * SECOND DIVISION. 175 VOL. 129, APRIL 30, 1984 175 Pesigan vs. Angeles Same; Same; Same.—Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised Administrative Code provides that even bureau “regulations and orders shall become effective only when approved by the Department Head and published in the Official Gazette or otherwise publicly promulgated”. (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.) Damages; Public Officers; The public officers who confiscated the carabaos acted in good faith enforcing Exec. Order 626-A. The carabaos, however, have to be returned.—It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in order. The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos. ABAD SANTOS, J., Separate opinion; Public Officers; Leases; Damages; Carabaos confiscated without legal basis have to be returned or their value paid; rentals should also be paid for their use.—The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used them. The farmers should not enrich themselves at the expense of the Pesigans. PETITION to review the order of the Regional Trial Court of Caloocan City. Angeles, J. The facts are stated in the opinion of the Court.           Quiazon, De Guzman, Makalintal and Barot for petitioners.      The Solicitor General for respondents. AQUINO, J.: At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of Presidential Executive Order No. 626-A dated October 25, 1980, providing 176 176 SUPREME COURT REPORTS ANNOTATED Pesigan vs. Angeles for the confiscation and forfeiture by the government of carabaos transported from one province to another. Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia, Batangas, as the destination. They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued under the Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to transport large cattle issued under the authority of the provincial commander; and (3) three certificates of inspection, one from the Constabulary command attesting that the carabaos were not included in the list of lost, stolen and questionable animals; one from the livestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one from the mayor of Sipocot. Inspite of the permit to transport and the said four certificates, the carabaos, while passing at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town’s police station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation was based on the aforementioned Executive Order No. 626-A which provides “that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabaos or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government to be distributed x x x to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos” (78 OG 3144). Doctor Miranda distributed the carabaos among twentyfive farmers of Basud, and to a farmer from the Vinzons municipal nursery (Annex I). The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos allegedly valued at P70,000 and damages of P92,000. The replevin order 177 VOL. 129, APRIL 30, 1984 177 Pesigan vs. Angeles could not be executed by the sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet and who was later transferred to Caloocan City, dismissed the case for lack of cause of action. The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court. We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as already noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised Administrative Code. The word “laws” in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.) The Spanish Supreme Court ruled that “bajo la denominación genérica de leyes, se comprenden también los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.” (1 Manresa, Codigo Civil, 7th Ed., p. 146.) Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank Circular No. 20 and sentenced to six months’ imprisonment and to pay a fine of P1,000, was acquitted by this Court because the circular was published in the Official Gazette three months after his conviction. He was not bound by the circular. That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or sanction makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by means of 178 178 SUPREME COURT REPORTS ANNOTATED Pesigan vs. Angeles publication in the Gazette before violators of the executive order can be bound thereby. The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the respondents, do not involve the enforcement of any penal regulation. Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability should be published in the Official Gazette. It provides that “every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect.” Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised Administrative Code provides that even bureau “regulations and orders shall become effective only when approved by the Department Head and published in the Official Gazette or otherwise publicly promulgated”. (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.) In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the head of the Public Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-A. The Pesigans could not have been expected to be cognizant of such an executive order. It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in order. The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos. WHEREFORE, the trial court’s order of dismissal and the confiscation and dispersal of the carabaos are reversed and set aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite documents, to the petitioners, who as owners are entitled to possess the same, 179 VOL. 129, APRIL 30, 1984 179 Pesigan vs. Angeles with the right to dispose of them in Basud or Sipocot, Camarines Sur. No costs. SO ORDERED.           Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.           Abad Santos, J., The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used them. The farmers should not enrich themselves at the expense of the Pesigans.      De Castro, J., no part. Order reversed and set aside. Notes.—Statutes generally have no retroactive effect. Only laws existing at the time of the execution of contract are applicable to transactions executed at that time. (Philippine Virginia Tobacco Adm. vs. Gonzales, 92 SCRA 172.) The legal requirement of publication in the Official Gazette for effectivity of laws cannot be disregarded by the contention that copies of election decree have been published and distributed. (Peralta vs. COMELEC, 82 SCRA 30.) The purpose why penal statutes are construed strictly against the state is not to enable a guilty person to escape punishment through a technicality, but to provide a precise definition of forbidden acts. (People vs. Purisima, 86 SCRA 542.) A statute operates prospectively and never retroactively unless the legislative intent to the contrary is made manifest either by express terms of the statute or by necessary implication. (Baltazar vs. Court of Appeals, 104 SCRA 619.) ——o0o—— 180 © Copyright 2020 Central Book Supply, Inc. All rights reserved. 420 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons No. L-30026. January 30, 1971. MARIO GUMABON,BLAS BAGOLBAGOL,GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO PALMARES, petitioners, vs. THE DIRECTOR OF THE BUREAU OF PRISONS, respondent. Remedial law; Special proceedings; Habeas corpus; When habeas corpus proper.—Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. Constitutional law; Equal protection of law; When applied at the case at bar.—What is required under the equal protection of law is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. ORIGINAL PETITION in the Supreme Court. Habeas corpus. The facts are stated in the opinion of the Court.      Jose W. Diokno for petitioners.           Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent. FERNANDO, J .: Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other crimes, they would 1 1 invoke the People v. Hernandez doctrine, negating the existence of such an offense, a ruling that unfortunately for them _______________ 1 99 Phil. 515 (1956). 421 VOL. 37, JANUARY 30, 1971 421 Gumabon vs. Director of the Bureau of Prisons was not handed down until after their convictions had become final. Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of 2 Prisons, likewise a petition for habeas corpus, a similar question was presented. The answer given was in the negative. Petitioners plead for a new look on the matter. They would premise their stand on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal provision that judicial decisions3 shall form part of the legal system of the Philippines, necessarily resulting in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence4 has been rendered “and the convict is serving the same.” These arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far as to overrule Pomeroy. Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner, Bias Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the petitioners _______________ 2 107 Phil. 50 (1960). Art. 8 of the Civil Code provides: “Judicial decisions applying or 3 interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” 4 According to Art. 22 of the Revised Penal Code: “Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.” 422 422 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons has been since then imprisoned by virtue of the above 5 convictions. Each of them has served more6than 13 years. Subsequently, in People v. Hernandez, as above noted, this Court ruled that the information against the accused in that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the7 Revised Penal Code, there being no such complex offense. 8 In the recently-decided case of People vs. Lava, we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of such doctrine. It is the contention of each of the petitioners that he has served, in the light of the above, more than the maximum penalty that could have been imposed upon him. He is thus entitled to freedom, his 9 continued detention being illegal. The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded. We can resolve the present petition without doing so. The plea there made was unconvincing, there being a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a constitutional right that would suffice to raise a serious jurisdictional question and the retroactive effect to be given a judicial decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry weight. We have to grant this petition. _______________ 5 Petition, par. 1.1 dated January 11, 1969. The above allegations are expressly admitted in the answer for the respondent Director of Prisons filed by the Solicitor General on April 10, 1969. 6 99 Phil. 515 (1956). 7 The petition likewise cited in addition to People v. Hernandez, People v. Geronimo, 100 Phil. 90 (1956).; People v. Togonon, 101 Phil. 804 (1957) ; People v. Romagoza, 103 Phil. 20 (1958) and People v. Santos, 104 Phil. 551 (1958). Petition, par. 1.2. 8 L-4974, May 16, 1969. 9 Petition, par. 1.3. 423 VOL. 37, JANUARY 30, 1971 423 Gumabon vs. Director of the Bureau of Prisons 1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. Any deviation from the legal norms call for the termination of the imprisonment. Rightly then could Chafee refer to the writ as “the most important human rights provision” in the fundamental 10 law. Nor is such praise unique. Cooley spoke of it as “one 11 of the principal safeguards to personal liberty.” For Willoughby, it is “the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by 12 whomsoever detention may be exercised or ordered.” Burdick echoed a similar sentiment, referring to it as “one 13 of the most important bulwarks of liberty.” Fraenkel made it unanimous, for to him, “without it much else would be of 14 no avail.” Thereby the rule of law is assured. A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its limitations may be15 detected in16 the opinions of former18Chief 17 Justices Arellano, Avanceña, Abad Santos, Paras, _______________ 10 Chafee, The Most Important Human Right in the Constitution, 32 Boston Univ. Law Rev. 143 (1947). 11 2 Cooley, Constitutional Limitations 709 (1927). 12 3 Willoughby, on the Constitution 1612 (1929). 13 Burdick, the Law of the American Constitution 27 (1922). 14 Fraenkel, Our Civil Liberties 6 (1944). 15 Cf. In re Patterson, 1 Phil. 93 (1902). 16 Cf. Ortiz v. del Villar, 57 Phil. 19 (1932). 17 Cf. Slade Perkins v. Director of Prisons, 58 Phil. 271 (1933). 18 Cf. Pomeroy v. Director of Prisons, 107 Phil. 50, 59-62, diss. (1960). 424 424 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons 19 20 Bengzon, and the present Chief Justice. It fell to Justice Malcolm’s lot, however to emphasize quite a few times the breadth 21of its amplitude and of its reach. In Villavicencio v. Lukban, the remedy came in handy to challenge the validity of the order of the then respondent Mayor of Manila who, for the best of reasons but without legal justification, ordered the transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having been devised and existing “as a speedy and effectual remedy to relieve persons from unlawful restraint” the opinion of Justice Malcolm continued: “The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is 22 sufficient.” The liberality with which the judiciary is to construe habeas corpus petitions even if presented in pleadings on their face devoid of merit was demonstrated in Ganaway v. 23 Quilen, where this Court, again through Justice Malcolm, stated: “As standing alone the petition for habeas corpus was fatally defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the case 24entitled Thomas Casey, et al. v. George Ganaway.” It is to Justice Malcolm likewise in Conde v. 25 Rivera to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if “restrained of his liberty, by habeas corpus to obtain his 26 freedom.” 27 So it is in the United States. An 1830 decision of _______________ 19 Cf. Avelino v. Vera, 77 Phil. 192 (1946). 20 Cf. Saulo v. Cruz, 105 Phil. 315 (1959). 21 39 Phil. 778 (1919). 22 Ibid., p. 790. 23 42 Phil. 805 (1922). 24 Ibid., p. 805. 25 45 Phil. 650 (1924). 26 Ibid., p. 652. 27 Ex parte Watkins, 3 Pet. 193, 202. 425 VOL. 37, JANUARY 30, 1971 425 Gumabon vs. Director of the Bureau of Prisons Chief Justice Marshall put the matter thus: “The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient 28cause.” Then there is this affirmation from an 1869 decision of the then Chief Justice Chase: “The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom.” The passing of the years has only served to confirm its primacy as a weapon in the cause of liberty. Only the other year, Justice Fortas spoke for the United States Supreme Court thus: “The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. * * * The scope and flexibility of the writ—its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes— have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages 29of justice within its reach are surfaced and corrected.” Justice Fortas explicitly made reference to Blackstone, who spoke of it as “the great and efficacious writ, in all manner of illegal confinement.” Implicit in his just estimate of its preeminent role is his 30adoption of Holmes’ famous dissent in Frank v. Mangum: “But habeas corpus cuts through all forms and goes to the very tissue of the structure.” 2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if “the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the 31 order,” the writ does not lie. That principle dates _______________ 28 Ex parte Yerger, 8 Wall. 85, 95. 29 Harris v. Nelson, 22 L Ed 2d 281, 286 (1969). 30 237 US 309, 346 (1915). 31 Section 4, Rule 102 provides: “If it appears that the 426 426 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons 32 32 back to 1902, when this Court announced that habeas corpus was unavailing where the person detained was in the custody of an officer under process issued by a court or magistrate. This is understandable, as during the time the Philippines was under American rule, there was necessarily an adherence to authoritative doctrines of constitutional law there followed. One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: “The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its 33 proceedings void.” _______________ person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.” 3 Moran, Comments on the Rules of Court, p. 604, 1970 ed. 32 In re Prautch, 1 Phil. 132. 33 100 US 371, 375. According to Ex parte Lange: “On consideration of the petition, the court was of opinion that the facts therein recited very fairly raised the question whether the circuit court, in the sentence which it had pronounced, and under which the prisoner was held, had not exceed its powers. It therefore directed the writ to issue, accompanied also by a writ of certiorari, to bring before this court the proceedings in the circuit court under which the petitioner was restrained of his liberty. The authority of this court in such case, under the Constitution of the United States, and the 14th section of the judiciary act of 1789 (1 Stat. at L. 73), to issue this writ, and to examine the proceedings in the inferior court, so far as may be necessary to ascertain whether that court has exceeded its authority, is no longer open to question.” (85 US 163, 165-166 [1874]). Justice Miller, who penned the opinion, cited the following cases: U.S. v. Hamilton, 3 Dall. 17 (1795); Ex 427 VOL. 37, JANUARY 30, 1971 427 Gumabon vs. Director of the Bureau of Prisons There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the 34appropriate remedy to assail the legality of the detention. 3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection. According to their petition: “In the case at bar, the petitioners were convicted by Courts of First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were convicted is the very same law under which the latter were convicted. It had not and has not been changed. For the same crime, committed under the same law, how can we, in conscience, allow petitioners to suffer life35imprisonment, while others can suffer only prision mayor?” They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly dealt with. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: “Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast _______________ parte Burford, 3 Cranch 448 (1806); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Watkins, 3 Pet. 193, 7 Pet. 508 (1830): Ex parte Metzger, 5 How. 176 (1347); Ex parte Kaine, 14 How. 103 (1852); Ex parte Wells, 18 How. 307 (1856); Ex parte Milligan, 4 Wall. 2 (1866); Ex parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8 Wall. 85 (1869). 34 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil. 741 (1948); Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals, L-29169, Aug. 1968, 24 SCRA 663; Celeste v. People, L-21435, Jan. 30, 1970, 31 SCRA 391. 35 Petition, par. 5.1, p. 11. 428 428 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons 36 on some in the group equally binding on the rest.” The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the twelve-year period when such is the maximum length of imprisonment in accordance with our controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what would happen is that for an identical offense, the only distinction lying in the finality of the conviction of one being before the Hernandez ruling and the other after, a person duly sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be made to languish in jail for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their penalty to society, and freed. Such a deplorable result is to be avoided. 4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal Code which requires that penal judgment be given a retroactive effect. In support of their contention, petitioners cite U.S. v. 37 38 39 Macasaet,40 U.S. vs. Parrone, U.S. v. Almencion, People 41 v. Moran, and People v. Parel. While reference in the above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as legislation, form part of our legal system. Petitioners would even find support in the wellknown dictum of Bishop Hoadley: _______________ 36 J. M. Tuason & Co., Inc. v. Land Tenure Administration, L-21064, Feb. 18, 1970, 31 SCRA 413. 37 11 Phil. 447 (1908). 38 24 Phil. 29 (1913). 39 25 Phil. 648 (1913). 40 44 Phil. 387 (1923). 41 44 Phil. 437 (1923). 429 VOL. 37, JANUARY 30, 1971 429 Gumabon vs. Director of the Bureau of Prisons “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first thought or spoke them.” It is to be admitted that 42 43 constitutional law scholars, notably Frankfurter, Powell, 44 and Thayer, in discussing judicial review as well as the jurist John Chipman Gray, were much impressed with the truth and the soundness of the above observations. We do not have to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive application. It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine 45 was announced in Cruz v. Director of Prisons. Thus: “The courts uniformly hold that where a sentence imposes a punishment in excess of the power of the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has 46 served out so much of the sentence as was valid.” There is a reiteration of such a principle in Directo v. Director of 47 Prisons where it was explicitly announced by this Court “that the only means of giving retroactive effect to a penal provision favorable to the accused * * * is the writ of habeas 48 corpus.” While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy _______________ 42 Frankfurter, The Reading of Statutes, reproduced in Of Law and Men, 47, at p. 53 (1956). 43 Powell, The Logic and Rhetoric of Constitutional Law, 1 Selected Essays on Constitutional Law 474, at p. 481 (1938). 44 Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, Ibid., 503, at p. 524 (1938). 45 17 Phil. 269. 46 Ibid., pp. 272-273. 47 56 Phil. 692 (1932). 48 Ibid., p. 695. 430 430 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release. WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set at liberty.      Dizon and Zaldivar, JJ., concur.      Concepcion, C.J., concurs in the result.           Reyes, J.B.L., J., concurs with Mr. Justice Teehankee.      Makalintal, J., concurs and also in the concurring opinion of Mr. Justice Teehankee.           Teehankee and Barredo, JJ., concur in their respective separate opinions.      Villamor, J., concurs in the above decision as well as in the concurring opinion of Mr. Justice Teehankee.      Castro and Makasiar, JJ., did not take part. Petition granted. SEPARATE OPINION TEEHANKEE, J .: 1 The petitioners at bar, 2three of whom pleaded guilty and two of whom stood trial, were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with multiple murder and other crimes, and have served or are now entering into their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods they were under preconviction detention). The leaders of the rebellion who were meted out death and life sentences for the same charge by the Court of First Instance of Manila had their sentences reduced last year to ten years of prision _______________ 1 Petitioners Gumabon, Agapito and Palmares. 2 Petitioners Bagolbagol and Padua. 431 VOL. 37, JANUARY 30, 1971 431 Gumabon vs. Director of the Bureau of Prisons 3 mayor by the Court in People v. Lava, wherein the Court expressly re-affirmed 4the doctrine first laid down in 1956 in People vs. Hernandez, that the crime of rebellion cannot be complexed with other common crimes since such common crimes “assume the political complexion of the main crime of which they are mere ingredients and consequently cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.” The Court rejected therein the State’s plea for the reexamination and setting aside of such doctrine, declaring that “(T)his Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court said in that case.” The said leaders have since been duly freed as having served out their penalty, but their followers, herein petitioners, are still serving their life sentences. I concede the validity of the ruling in Pomeroy vs. 5 Director of Prisons that “(W)ith reference to persons in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want of jurisdiction of the sentencing court, and cannot function as a writ of error.” “I grant, too, that at the time of the Pomeroy decision in 1960, as noted therein, “the existence of the ‘complexed’ rebellion (was) still upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court.” But with the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having 6 withstood the test of time and having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of “complexed” rebellion does not exist in our Revised Penal Code. No prosecutor would now file an information for “complexed” rebellion but simply for the offense _______________ 3 28 SCRA 72, 100 (May 16, 1969). 4 99 Phil. 515 (1956). 5 107 Phil., 50 (1960). 6 Reiterated in People vs.—Geronimo, 100 Phil., 90 (1956);—Togonon, 101 Phil., 804 (1957);—Romagoza, 103 Phil., 20 (1958); and Aquino, 108 Phil., 814 (1960). 432 432 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons of simple rebellion as defined in Article 134 of the Revised Penal Code, and even if such an information for “complexed” rebellion to be so filed, the trial courts would be bound to quash such information as not charging an offense on the strength of Lava and Hernandez. Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised Penal Code that: “ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.” in relation to the provisions of Article 8 of the Civil Code that “(J)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were imposed by statute for the crime of simple rebellion at the time of their conviction and they were accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years imprisonment; having served out the maximum penalty of 12 years now imposed by the amended statute, they would be entitled to invoke the retroactive effect of the statute favoring them. The only difference between the situation given and the present case is that here it is this Supreme Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine since Hernandez in 1956 that no offense of “complexed” rebellion exists and petitioners should therefore be now equally entitled to the retroactive favorable effect of such doctrine. The actual case of petitioners is that at the time of their conviction, it was believed—erroneously—that the crime committed by them was punishable by life imprisonment, but the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration, just as if a statu433 VOL. 37, JANUARY 30, 1971 433 Gumabon vs. Director of the Bureau of Prisons tory amendment had been enacted—not because the sentencing court had no jurisdiction or is now ousted of jurisdiction. The writ prayed for 7should issue, since as held in Directo vs. Director of Prisons, “the only means of giving retroactive effect to a penal provision favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus.” The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant having already served out the entire part of the sentence within the court’s 8 power. As pointed9 out by the Court in Rodriguez vs. Director of Prisons, furthermore, “Article 22 of the Revised Penal Code . . . extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under the former penal law was decreased by the revised code, the excess has become illegal.” Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only relevant question now is whether petitioners have served the maximum—and lesser —sentence of prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set free. _______________ 7 56 Phil. 692 (1932). 8 Cruz vs. Director of Prisons, 17 Phil. 269 (1910): See also Caluag vs. Pecson, 82 Phil. 8 (1948). 9 57 Phil. 133 (1932). 434 434 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons 10 In People vs. Parel, the Court held that the provisions of a new law (Act 3030) for the prescription of certain election offenses (fixing the same at one year after commission) were more favorable to the accused than those of the preexisting law and were therefore retroactive as to the same offenses committed before the enactment of the new law. In meeting the objection that the reduced prescription period was by its terms applicable only to offenses resulting from the new law (which amended the pre-existing Election Law) and could not be given retroactive effect, the Court found “that practically all of the offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the only difference being that the penalties have been increased.” Holding that the retroactivity clause of Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in the absence of any express statutory exception, the Court drew this analogy: “Let us suppose that a statute is enacted defining the crime of murder in the same language in which it is defined in the Penal Code, but providing that the maximum penalty for the crime defined in the new statute shall be life imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would anyone then maintain that the death penalty might still be imposed for murder committed before the new statute was enacted?” The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a new statute describing the crime in the same language and imposing a lesser penalty, but the settled doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of which the petitioners stand convicted, “since rebellion cannot form a complex with common crimes, because the latter are either absorbed by the rebellion itself or are punishable as independent 11 offenses.” Petitioners here have been convicted for the very same rebellion and under the very same law for which their leaders, Jose Lava _______________ 10 44 Phil. 437 (1932), italics copied; see also People vs. Moran, 44 Phil. 387 (1923). 11 Pomeroy vs. Director of Prisons, supra fn. 5, see pp. 54, 61. 435 VOL. 37, JANUARY 30, 1971 435 Gumabon vs. Director of the Bureau of Prisons et al., have been convicted. Yet, while their leaders have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere followers are serving out the life sentences imposed on them, notwithstanding their already having served out much more than the maximum penalty of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the nonexistence of the crime of “complexed” rebellion were cleared up only in 1956 after they had already been convicted and were serving their sentences does not make the excess in the penalty imposed upon them beyond the maximum of twelve years any less illegal. The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the law of the case, have no application here. These salutary rules decree that rights of parties having been decisively settled and determined by final judgment of the court of competent jurisdiction with the party adversely affected having had the opportunity to raise in the case all relevant questions, the decision becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and litigation would be never-ending and would become more intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply because in another and subsequent case, this Court adopted a new or different construction of the law under which a different result of the adjudicated case might have been obtained. Here, the whole question turns—simply—on the nature of the crime of rebellion as defined in section 134 of the Revised Penal Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court had ruled since 1956—which is now settled doctrine—that only the crime of simple rebellion exists in our legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and must necessarily be declared void. Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear case of an excess in penalty imposed beyond twelve years of 436 436 SUPREME COURT REPORTS ANNOTATED Gumabon vs. Director of the Bureau of Prisons prision mayor which has become illegal by virtue of this Court’s settled doctrine that the crime of rebellion cannot be complexed with other common crimes. On this ground, as well as on the further and more fundamental ground that to hold them liable to continue serving life sentences for a crime that the law—at the time of their conviction as well as now—punishes only with prision mayor which they have more than fully served, would be to deny them their constitutional rights of due process and equal protection of the law. Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the petition for habeas corpus should be granted and petitioners forthwith set at liberty. Petition granted. Notes.—(a) Favorable penal statute retroactively applied even if defendant is already serving sentence.—See Escalante vs. Santos, 56 Phil. 483. (b) Habeas corpus; Rule when sentence imposes excessive penalty.—When a sentence imposes a punishment in excess of the power of the court, the sentence is void as to such excess and a prisoner confined thereunder is entitled to be released on a writ of habeas corpus if he has served so much of the sentence as was lawfully imposed (Cruz vs. Director of Prisons, 17 Phil. 269). It should be noted, however, that this ruling has been held to apply only to cases involving penalties that could not be imposed under any circumstances for the crime for which the prisoner was convicted, e.g., subsidiary imprisonment for violation of special laws, or imprisonment for contempt by refusal to execute a conveyance instead of having the conveyance executed in accordance with Section 10, Rule 39 of the Rules of Court. Where the sentencing court’s estimate of the facts and its conclusions as to the governing law were erroneous, the mistake did not render it powerless to act upon the premises nor deprive it of authority to impose the penalty that in its view of the case was appropriate. Hence, the error committed was correctible only 437 VOL. 37, JANUARY 30, 1971 437 Baesa vs. Provincial Fiscal of Camarines Sur by seasonable appeal, not by attack on the jurisdiction of the sentencing court (Pomeroy vs. Director of Prisons, L14284-85, Feb. 24, 1960). _______________ © Copyright 2020 Central Book Supply, Inc. All rights reserved. [No. 38725. October 31, 1933] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. PEDRO MANABA, defendant and appellant. 1. RAPE; VALIDITY OF COMPLAINT; JURISDICTION ; JEOPARDY.—Whether the defendant was placed in jeopardy for the second time or not when he was tried for rape in the present case depends on whether or not he was tried on a valid complaint in the first case. The first complaint filed against the def endant was signed and sworn to by the chief of police of Dumaguete. As it was not the complaint of the offended party, it was not a valid complaint in accordance with the law. The judgment of the court was therefore void for lack of jurisdiction over the subject matter, and the defendant was never in jeopardy. 2. ID ; REVISED PENAL CODE; ENGLISH AND SPANISH TEXT OF PAR"AGRAPH 3, ARTICLE 344, COMPARED. —The Spanish equivalent of the word "filed" is not found in the Spanish text of the third paragraph of article 344 of the Revised Penal Code. The Spanish text of said Code is controlling as this was the text approved by the Legislature. 666 666 PHILIPPINE REPORTS ANNOTATED People vs. Manaba APPEAL from a judgment of the Court of First Instance of Oriental Negros. Garcia, J. The facts are stated in the opinion of the court. Jose Ma. Cavanna, for appellant. Solicitor-General Hilado for appellee. VICKERS, J.: This is an appeal from a decision of Judge Eulalio Garcia in the Court of First Instance of Oriental Negros in criminal case No. 1827 dated November 15, 1932, finding the defendant guilty of rape and sentencing him to suffer seventeen years and four months of reclusión temporal, and the accessory penalties of the law, to indemnify the offended party, Celestina Adapon, in the amount of P500, to maintain the offspring, if any, at P5 a month until said offspring should become of age, and to pay the costs. The defendant appealed to this court, and his attorney de oficio now makes the following assignments of error: "1. El Juzgado a, quo erró al no estimar en favor del acusado apelante la defensa de double jeopardy o legal jeopardy que ha interpuesto. "2. El Juzgado a, quo erró al no declarar insuficientes las pruebas de identificación del acusado apelante. "3. El Juzgado a quo también erró al pasar por alto las incoherencias de los testigos de la acusación y al no declarar que no se ha establecido fuera de toda duda la responsabilidad del apelante. "4. El Juzgado a quo erró al condenar al acusado apelante por el delito de violación y al no acceder a su moción de nueva vista." It appears that on May 10, 1932, the chief of police of Dumaguete subscribed and swore to a criminal complaint wherein he charged Pedro Manaba with the crime of rape, committed on the person of Celestina Adapon. This complaint was filed with the justice of the peace of Dumaguete on June 1, 1932, and in due course the case reached the 667 VOL. 58, OCTOBER 31, 1933 667 People vs. Manaba Court of First Instance. The accused was tried and convicted, but on motion of the attorney for the defendant the judgment was set aside and the case dismissed on the ground that the court had no jurisdiction over the person of the defendant or the subject matter of the action, because the complaint had not been filed by the offended party, but by the chief of police (criminal case No. 1801). On August 17, 1932, the offended girl subscribed and swore to a complaint charging the defendant with the crime of rape. This complaint was filed in the Court of First Instance (criminal case No. 1827), but was referred to the justice of the peace of Dumaguete for preliminary investigation. The defendant waived his right to the preliminary investigation, but asked for the dismissal of the complaint on the ground that he had previously been placed in jeopardy for the same offense. This motion was denied by the justice of the peace, and the case was remanded to the Court of First Instance, where the provincial fiscal in an information charged the defendant with having committed the crime of rape as follows: "Que en o hacia la noche del día 9 de mayo de 1932, en el Municipio de Dumaguete, Provincia de Negros Oriental, Islas Filipinas, y dentro de la jurisdicción de este Juzgado. el referido acusado Pedro Manaba, aprovechándose de la oscuridad de la noche y mediante fuerza, violencia e intimidación, voluntaria, ilegal y criminalmente yació y tuvo acceso carnal con una niña llamada Celestina Adapon, contra la voluntad de ésta. El acusado Pedro Manaba ya ha sido convicto por Juzgado competente y en sentencia firme por este mismo delito de violación. "Hecho cometido con infracción de la ley." The defendant renewed his motion for dismissal in the case on the ground of double jeopardy, but his motion was denied; and upon the termination of the trial the def endant was found guilty and sentenced as hereinabove stated. Whether the defendant was placed in jeopardy for the second time or not when he was tried in the present case 668 668 PHILIPPINE REPORTS ANNOTATED People vs. Manaba depends on whether or not he was tried on a valid complaint in the first case. The offense in question was committed on May 9, 1932, or subsequent to the date when the Revised Penal Code became effective. The third paragraph of article 344 of the Revised Penal Code, which relates to the prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness reads as follows: "The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be." The Spanish text of this paragraph is as follows: "Tampoco puede procederse por causa de estupro, rapto, violación o abusos deshonestos, sino en virtud de denuncia de la parte agraviada, o de sus padres, o abuelos o tutor, ni después de haberse otorgado al of ensor, perdón expreso por dichas partes, según los casos." It will be observed that the Spanish equivalent of the word "filed" is not found in the Spanish text, which is controlling, as it was the Spanish text of the Revised Penal Code that was approved by the Legislature. The first complaint filed against the def endant was signed and sworn to by the chief of police of Dumaguete. As it was not the complaint of the offended party, it was .not a valid complaint in accordance with the law. The judgment of the court was therefore void for lack of jurisdiction over the subject matter, and the defendant was never in jeopardy. It might be observed in this connection that the judgment was set aside and the case dismissed on the motion of defendant's attorney, who subsequently set up the plea of double jeopardy in the present case. The other assignments of error relate to the sufficiency of the evidence, which in our opinion fully sustains the findings of the trial judge. 669 VOL. 58, OCTOBER 31, 1933 People vs. Serrano 669 The recommendation of the Solicitor-General is erroneous in several respects, chiefly due to the fact that it is based on the decision of July 30, 1932 that was set aside, and not on the decision now under consideration. The. accused should not be ordered to acknowledge the offspring, if should there be any, because the record shows that the accused is a married man. It appears that the lower court should have taken into consideration the aggravating circumstance of nocturnity. The defendant is therefore sentenced to suffer seventeen years, four months, and one day of reclusión temporal, to indemnify the offended party, Celestina Adapon, in the sum of P500, and to support the offspring, if any. As thus modified, the decision appealed from is affirmed, with the costs of both instances against the appellant. Street, Abad Santos, Imperial, and Butte, JJ., concur. Judgment modified. _______________ © Copyright 2020 Central Book Supply, Inc. All rights reserved.