Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83341 January 30, 1990
ARNEL P. MISOLAS, petitioner,
vs.
HON. BENJAMIN V. PANGA, as Judge of RTC Branch 33, Cadlan Pili, Camarines Sur and PEOPLE OF THE
PHILIPPINES, respondents.
Soliman M. Santos, Jr. counsel de oficio for petitioner.
CORTES, J.:
This petition for certiorari ascribes grave abuse of discretion amounting to lack or excess of jurisdiction to
the respondent judge who denied petitioner's motion to quash the information filed against him as well as
his motion for reconsideration.
The case brings into focus our laws on subversion and subversion-related offenses.
The controversy arose from the following facts:
After receiving information from an unidentified informant that members of the New People's Army (NPA)
were resting in a suspected "underground house" in Foster Village, Del Carmen, Pili, Camarines Sur,
elements of the Philippine Constabulary (PC) raided said house in the early morning of August 8, 1987.
Three persons were inside the house, petitioner and two women known by the aliases "Ka Donna" and "Ka
Menchie" but the women were able to escape in the confusion during the raid. The house was searched
and the raiders found in a red bag under a pillow allegedly used by petitioner a .20 gauge Remington
shotgun and four live rounds of ammunition. Petitioner was arrested and brought to the PC headquarters.
On September 4, 1987, an information charging petitioner with illegal possession of firearms and
ammunition under Presidential Decree No. 1866 was filed by the provincial fiscal. The information alleged
that the firearm and ammunition were used in furtherance of subversion so as to qualify the offense under
the third paragraph of Section 1 of P.D. No. 1866, which provides:
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
Upon arraignment, the petitioner, with the assistance of counsel de oficio pleaded "not guilty" to the
charge. However, a few days later, the same counsel (also his counsel in this petition) filed a motion to
withdraw the plea on the ground that there was basis for the filing of a motion to quash. Respondent judge
gave petitioner time to file a motion to quash.
Petitioner filed a motion to quash on the following grounds:
(1) that the facts charged do not constitute an offense because the information does not charge the proper
offense since from the allegations the offense that may be charged is either subversion or rebellion; and
(2) that the trial court had no jurisdiction over the person of petitioner because of violations of his
constitutional rights, i.e, his arrest and the seizure of the firearm and ammunition were illegal.
Respondent judge denied the motion to quash for lack of merit in an order dated January 7, 1988.
Petitioner moved for reconsideration, but such was denied on February 15, 1988.
Hence, this petition.
1. The petition, reiterating the grounds alleged in the motion to quash, centers on the argument that the
third paragraph of Section 1 of P.D. No. 1866, which penalizes illegal possession of firearms and
ammunition committed in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection, or subversion, should be stricken down as unconstitutional. In the words of petitioner:
Unconstitutional because it is violative of the due process clause, particularly substantive due process
against arbitrary laws. Arbitrary because it disregards the overwhelming weight of national as well as
international laws and jurisprudence behind the Hernandez (99 Phil. 515) and Geronimo (100 Phil. 90)
rulings on the doctrine of absorption of common crimes in rebellion.
If murder is absorbed in rebellion, with more reason should illegal possession of firearms be absorbed in
rebellion and for that matter subversion.
While it is true that subversion is an entirely different and distinct crime from rebellion, both are
recognized as political offenses. So much so that in the Guidelines for the Grant of Pardon to Political
Detainees/Prisoners, the latter are defined as those charged detained or imprisoned for rebellion or
subversion, among others.
The idea of absorption of illegal possession of firearms in subversion is also bolstered by the fact that in
Republic Act 1700, as amended, subversion or its penalty is qualified when the subversive "takes up arms
against the Government."
It cannot be said that P.D. No. 1866 is an exception to the Hernandez and Geronimo rulings. On the
contrary, it is the other way around by virtue of the overwhelming weight of national as well as
international laws and jurisprudence which form part of the law and legal system of the land.
xxx xxx xxx
... an armed subversive or rebel is to be distinguished from a common criminal illegally possessing a
firearm. The former should be charged with subversion or rebellion, absorbing his illegal possession of
firearm. His illegal possession of firearm is not the main thing. It is only incidental to his involvement in
subversion or rebellion. (Petition, pp. 5-6; Rollo, pp. 5-6).
Republic Act No. 1700, as amended, provides in Section 4 that "if such member [of the Communist Party of
the Philippines and/or its successor or of any subversive association] takes up arms against the
Government, he shall be punished by prision mayor to reclusion perpetua with all the accessory penalties
provided therefor in the Revised Penal Code." Thus, given the particular facts of the case, petitioner could
be charged either under P.D. No. 1866 or R.A. No. 1700. But as bluntly pointed out by petitioner:
. . . It is a matter of public knowledge that the military has even admitted its policy or practice of charging
armed subversives or rebels with "qualified" illegal possession of firearms instead of subversion or
rebellion for two reasons: (1) the former is easier to prosecute than the latter, and (2) the former has a
higher penalty than the latter. [Petition, p. 6; Rollo, p. 6].
Undeniably, it is easier to prove that a person has unlawfully possessed a firearm and/or ammunition
under P.D. No. 1866 than to establish that he had knowingly, wilfully and by overt acts affiliated himself
with, became or remained a member of the Communist Party of the Philippines and/or its successor or of
any subversive organization under R.A. No. 1700, as conviction under the latter "requires that membership
must be knowing or active, with specific intent to further the illegal objectives of the Party' [People v.
Ferrer, G.R. Nos. L-32613-14, December 27, 1972, 48 SCRA 382].
However, that the same act may be penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the accused, will not necessarily call for
the invalidation of the third paragraph of Section 1 of P.D. No. 1866 which provides for the higher penalty.
Neither would the doctrines enunciated by the Court in Hernandez and Geronimo, and People v.
Rodriguez [107 Phil. 659] save the day for petitioner.
In Hernandez, the accused were charged with the complex crime of rebellion with murder, arson and
robbery while in Geronimo, the information was for the complex crime of rebellion with murder, robbery
and kidnapping. In those two cases the Court held that aforestated common crimes cannot be complexed
with rebellion as these crimes constituted the means of committing the crime of rebellion. These common
crimes constituted the acts of "engaging in war" and "committing serious violence" which are essential
elements of the crime of rebellion [See Arts. 134-135, Revised Penal Code] and, hence, are deemed
absorbed in the crime of rebellion. Consequently, the accused can be held liable only for the single crime of
rebellion.
On the other hand, in Rodriguez, the Court ruled that since the accused had already been charged with
rebellion, he can no longer be charged for illegal possession of firearms for the same act of unauthorized
possession of firearm on which the charge of rebellion was based, as said act constituted the very means
for the commission of rebellion. Thus, the illegal possession of the firearm was deemed absorbed in the
crime of rebellion.
However, in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under P.D. 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX
CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY
CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court
in Hernandez, Geronimo and Rodriquez find no application in this case.
Even the dictum in Hernandez that,
... national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that
common crimes, perpetrated in furtherance of a political offense, are divested of their character as
"common" offenses and 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 crime, to justify the imposition of the greater penalty. [At 541.]
which petitioner relies on, cannot find application in this case considering that the Legislature had deemed
it fit to provide for two distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. No.
1866) and (2) subversion qualified by the taking up of arms against the Government (R.A. No. 1700), which
the Legislature has the power to do. The practical result of this may be harsh or it may pose grave difficulty
on an accused in instances similar to those that obtain in the present case, but the wisdom of the
Legislature in the lawful exercise of its power to enact laws is something that the Court cannot inquire into
as it would be in derogation of the principle of separation of powers. In the words of Chief Justice
Fernando:
xxx xxx xxx
6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal
integrity and official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being
unnecessary, it is well to remember that this Court, in the language of Justice Laurel, "does not pass upon
questions of wisdom, justice or expediency of legislation." As expressed by Justice Tuazon: "It is not the
province of the courts to supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern." There can be no objection then to the
observation of Justice Montemayor: "As long as laws do not violate any Constitutional provision, the Courts
merely interpret and apply them regardless of whether or not they are wise or salutary." For they,
according to Justice Labrador, "are not supposed to override legitimate policy and ..., never inquire into the
wisdom of the law.
It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a
statute invalid. That is as it ought to be. The principle of separation of powers has in the main wisely
allocated the respective authority of each department and confined its jurisdiction to such a sphere. There
would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a
coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there
ought to be, the last offender should be the courts of justice, to which rightly litigants submit their
controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provisions likewise insofar as there may be objections, even if valid and
cogent, on its wisdom cannot be sustained. [Morfe v. Mutuc, G.R. No. L-2038 id. January 31, 1968, 22 SCRA
424, 450-451].
Then, that P.D. No. 1866 was enacted by deposed former President Marcos (pursuant to his law-making
powers under the 1973 Constitution) is not by itself a legal argument for its invalidation. The 1987
Constitution expressly provides that "[a]ll existing laws, decrees, executive orders, proclamations, letters of
instruction, and other executive issuances not inconsistent with this Constitution shall remain operative
until amended, repealed or revoked." [Art. XVIII, Sec. 3].
The remedy lies with the present Legislature to correct the situation through remedial legislation if it finds
a failure of logic and reason in the existing statutes on political offenses.
. . . If remedial measures are deemed necessary, let Congress provide the same. Courts have no authority
to grant relief against the evils that may result from the operation of unwise or imperfect legislation, unless
its flaw partakes of the nature of a constitutional infirmity ... Nin Bay Mining Co. v. Municipality of Roxas,
Palawan, G.R. No. L-20125, July 20,1965,14 SCRA 660, 666].
That the facts charged comply with the elements of the offense penalized in the third paragraph of Section
1 of P.D. No. 1866 is not disputed. But petitioner asserts that the nature of his alleged acts requires that he
be charged with subversion or with rebellion instead of qualified illegal possesion of firearms and
ammunition, perhaps in view of the lower penalty for subversion and rebellion. Quashal of the information
cannot be had on this ground, the matter of what offense to charge in the information being within the
prosecutor's sound discretion. As the Court stated in the case of People v. Pineda [G.R. No. L-26222, July
21, 1967, 20 SCRA 748]:
. . . The question of instituting a criminal charge is one addressed to the sound discretion of the
investigating Fiscal. The information he lodges in court must have to be supported by the facts brought
about by an inquiry made by him. It stands to reason then to say that in a clash of views between the judge
who did not investigate and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. In this regard, he ordinarily cannot be subject to
dictation. . . . [At 756].
In sum, petitioner's case for the declaration of unconstitutionality of the third paragraph of Section 1 of
P.D. No. 1866 is wanting in legal basis.
In this separate opinion, Mr. Justice Sarmiento espouses the view that P.D. No. 1866 should be struck
down as unconstitutional for being a bill of attainder.
Initially, it must be pointed out that the petition never challenged P.D. No. 1866 on that ground. As
discussed earlier, petitioner objected to P.D. 1866 on the ground of substantive due process. Established
rules of constitutional litigation would, therefore, bar an inquiry based on the theory that P.D. No. 1866
constitutes a bill of attainder. It must also be noted that while petitioner challenges only the third
paragraph of section 1 of P.D. No. 1866, Mr. Justice Sarmiento would have the other portions of the law
invalidated. Again, this is impermissible.
But even if a challenge on the ground that P.D. 1866 is a bill of attainder could be appropriately considered,
it will still be met with little success. The Court, in People v. Ferrer, supra, defined a bill of attainder as a
legislative act which inflicts punishment on individuals or members of a particular group without a judicial
trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the
imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last element, the total
lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed,
is the most essential [Id. at pp. 395-397; 400-401]. P.D. No. 1866 does not possess the elements of a bill of
attainder. It does not seek to inflict punishment without a judicial trial. Nowhere in the measure is there a
finding of guilt and an imposition of a corresponding punishment. What the decree does is to define the
offense and provide for the penalty that may be imposed, specifying the qualifying circumstances that
would aggravate the offense. There is no encroachment on the power of the court to determine after due
hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal
possession of firearms has been committed and that the qualifying circumstance attached to it has been
established also beyond reasonable doubt as the Constitution and judicial precedents require.
The presumption of constitutionality attaches to legislative acts [Yu Cong Eng v. Trinidad, 47 Phil. 387
(1925); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 425]. Before a statute or a portion
thereof may be declared unconstitutional, "it must be shown that the statute violates the constitution
clearly, palpably plainly, and in such a manner as to leave no doubt or hesitation in the mind of the Court."
[SINCO PHILIPPINE POLITICAL LAW 525 (11th ed., 1960, citing Sharpless v. Mayor, 21 Pa. 147; also quoted
in Alba v. Evangelists, 100 Phil. 683 (1957)]. "Thus, to justify the nullification of a law, there must be a clear
and unequivocal breach of the Constitution, not a doubtful and argumentative implication." [Peralta v.
COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30, 55]., Absent a clear showing that the challenged
measure ousts the courts from the function of passing upon the question of guilt or innocence of the
accused and an unequivocal demonstration that P.D. No. 1866, by legislative fiat, declares the petitioner
guilty of a crime and imposes directly the penalty prescribed thereunder, the challenge will have to be
rejected.
Neither can the Court strike down P.D. No. 1866 for snowing the possibility of a second jeopardy, as Mr.
Justice Sarmiento suggests. It must be pointed out that at the time this petition was filed, there had been
no previous conviction, acquittal or dismissal. Hence, the question of a second or double jeopardy does not
arise. This is manifest from the Constitution, which provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act. [Art. III.]
More particularly, Rule 117 of the Rules of Court states:
SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without Ms express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessary included in the offense charged in the former complaint or information.
xxx xxx xxx
The right against double jeopardy is a matter which the accused may raise in a motion to quash [Sec. 3(h)
Rule 117]. But, precisely, petitioner's motion to quash flied in the trial court did not raise the issue of
double jeopardy because it had not arisen. The Court cannot anticipate that the opportunity for a second
jeopardy will still arise if he is acquitted or convicted as charged under P.D. 1866.
Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be rendered
unconstitutional. That an accused will be exposed to double jeopardy if he is prosecuted under another law
is not a ground to nullify that law. Double jeopardy is merely a defense that an accused may raise to defeat
a subsequent prosecution or conviction for the same offense.
2. The thrust of petitioner's contention that the trial court had not acquired jurisdiction over his person is
that his constitutional rights against unlawful arrest and unreasonable searches and seizures had been
violated. He asserts that he was arrested in contravention of the clear provisions on arrests in the Revised
Rules of Court. He concludes that since his arrest was unlawful, the search pursuant thereto which yielded
the shotgun and the live rounds of ammunition was also illegal.
When the case was assigned to the ponente, she had intended to consider and to resolve this issue, it
having been squarely raised in the petition. However, in an unexpected turn of events, petitioner filed a
Manifestation dated September 18, 1989, wherein he averred:
1. He has filed a bond in the trial court and the same was approved on September 14, 1989.
2. He is well aware that the filing of a bail bond has the effect of waiving the right to question the
irregularity of an arrest (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).
3. Be that as it may, the irregularity of the arrest was only a secondary issue in the instant Petition.
The principal issue is still the unconstitutionality of the third paragraph of Section 1 of P.D. No. 1866 insofar
as it penalizes illegal possession of firearms 'in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or subversion'.
The Court takes this to mean that petitioner is submitting the case for decision on the sole issue that P.D.
No. 1866 is unconstitutional and is abandoning the issue of the legality of the search and his arrest.
In view thereof, the Court finds it unnecessary to resolve the second issue.
WHEREFORE, in view of petitioner's failure to clearly and unequivocally establish that the third paragraph
of Section 1 of P.D. No. 1866 violates the Constitution, the petition is hereby DISMISSED.
SO ORDERED.
Fernan. C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-
Aquino and Medialdea, JJ., concur.
Regalado, J., In the result.
Separate Opinions
CRUZ, J., dissenting:
I join Justice Sarmiento's dissent, with these additional brief observations. As I submitted in Guazon v. De
Villa, G.R. No. 80508, we should not unreasonably inhibit ourselves on technical grounds when a
constitutional question is presented to us for resolution. An unconstitutional act is illegal per se and must
be slain on sight. It should not be reprieved simply because it has not been properly challenged, to be
struck down only if and when all the formal requirements are satisfied. If and when. In the meantime, the
lawless act continues to corrode the Constitution, and all because we have refused to act.
SARMIENTO, J., dissenting:
It perplexes me why this dissent should first of all merit what appears to be repartees from the majority. I
am but casting a contrary vote, which, after all, is in performance of a constitutional duty.1
I am also concerned at how this case has journeyed from ponente to ponente and opinion to opinion,
which, rather than expedited its resolution, has delayed it-at the expense of the accused-petitioner.
I was originally assigned to write the decision in this case, and as early as June, 1989, I was ready. On June
14, 1989, I started circulating a decision granting the petition and declaring Presidential Decree No. 1866,
as amended by Presidential Decree No. 1878-A, unconstitutional and of no force and effect. Meanwhile,
Madame Justice Irene Cortes disseminated a dissent. By July 18, 1989, my ponencia had been pending in
the office of the Chief Justice for promulgation. It carried signatures of concurrence of eight 2 Justices
(including mine), a slim majority, but a majority nonetheless. Five Justices, on the other hand, joined
Justice Cortes in her dissent. The Chief Justice did not sign the decision on his word that he was filing a
dissent of his own.
Subsequently, and as events would soon unfold quickly and dramatically, the Chief Justice returned my
decision to the Court en banc, and declared that unless somebody changed his mind, he was promulgating
my decision. Justice Edgardo Paras, who was one of the eight who had stamped their imprimatur on my
decision, indicated that he did not want to "clip the wings of the military" and that he was changing his
mind. This sudden reversement under the circumstances surrounding its manifestation, took me aback for
which I strongly voiced my protest for a case (although the majority is very slim) that I had thought was a
settled matter.
I am aware that similar events in the Supreme Court are nothing uncommon. The following are the ringing
words of my distinguished colleague, Justice Ameurfina Melencio-Herrera, but they could just as well have
been mine, as far as the instant controversy is concerned, and I could not have put it any better:
It has taken all of a year and four months to what, I hope, will see the final disposition of this case,
notwithstanding periodic reminders for an earlier resolution. It is this delay that has caused me a great deal
of concern. It is, to me, a crying example of justice delayed and is by no means "much ado about nothing,"
... Nor is the question involved "none too important." ... The bone of contention is whether or not a
criminal complaint, which is an offense against the State, may be dismissed on the basis of an amicable
settlement between the complainant and the accused, who is a public officer.
As assigned initially, I was to prepare the opinion of the Court. My original "ponencia" annulling the Order
of respondent Municipal Judge Eriberto H. Espiritu dismissing the criminal case against respondent Mayor
Emiliano Caruncho, granting the petition for Certiorari and Mandamus, and ordering respondent Municipal
Judge to reinstate and proceed with the trial on the merits of the criminal case against respondent Mayor
without further delay, was circulated beginning July 30, 1982. 3
The following is my dissenting opinion based mainly on my original ponencia.
I hold to be unconstitutional Presidential Decree No. 1866, "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE. DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION
OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR
RELEVANT PURPOSES," specifically, sections 1 and 3 thereof, thus:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms and Ammunition
or Instruments used or Intended to be Used in the Manufacture of Firearms and Ammunition. — The
penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the
owner, president, manager, director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm,
company, corporation or entity to be used by any person or persons found guilty of violating the provisions
of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor. 4
xxx xxx xxx
SEC. 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. — The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s) rifle
grenade(s) and other explosives, including but not limited to "pillbox bombs", molotov cocktail bombs",
"firebombs", or other incendiary devices capable of producing destructive effect on contiguous objects or
causing injury or death to any person.
Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use
of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of
any person or persons shall be punished with the penalty of death.
If the violation of this Section is ill furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the
owner, president, manager, or director or other responsible officer of ally public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm,
company, corporation or entity to be used by any person or persons found guilty of violation the provisions
of the preceding paragraphs. 5
I find, first and foremost, the law to be a bill of attainder the aforequoted provisions specifically, as it has
been defined, that is, "a legislative enactment which inflicts punishment without trial. 6 It is a bill of
attainder so I submit, because it presumes the accused, upon conviction, to be guilty as well-of the crimes
(murder and homicide under the second paragraph of Section One, and the rebellion, insurrection, and
subversion under the third paragraph of Section Three) that supposedly merely qualify the offense of
"illegal possession" (or "illegal manufacture" as the case may be) when the accused has not been tried and
found guilty of either crimes in any judicial proceeding. In the case at bar, the fact that the petitioner has
been charged with illegal possession of firearms "in furtherance of subversion" means that the petitioner
has committed subversion, notwithstanding the fact that he is not standing trial for subversion.
I am aware that this suit has been brought on the theory that the charge of "illegal possession" against the
accused supposedly offends the rulings in People v. Hernandez 7 People v. Geronimo 8 and People v.
Rodriguez 9 and not, rather, on the constitutionality of Presidential Decree No. 1866 as amended. It is my
view, however, that the case is nonetheless ripe for constitutional adjudication albeit the constitutional
question has not been asserted. It has indeed been held:
But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion,
may determine the time when a question affecting the constitutionality of a statute should be presented.
(In Re Woolsey [1984], 95 N.Y., 135,144.) Thus, in criminal cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for the first time at any stage of the proceedings,
either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that is it the duty
of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears
that a determination of the question is necessary to a decision of the case. (McCabes Adm'x vs. Maysville &
B.S.R. Co. [1910], 136 Ky., 674; 124 S.W., 892; Lohmeyer vs. St. Louis Cordage Co., [1908]. 214 Mo., 685;
113 S.W., 1108; Carmody vs. St. Louis Transit co [1905],188 Mo., 572; 87 S.W., 913.) 10
The fact that the accused has not been charged with the complex crime of subversion and illegal
possession of firearms (which can not be done) does not, to me, acquit the Decree. The fact that "in the
present case, petitioner is being charged specifically for the qualified offense of illegal possession of
firearms and ammunition. . " 11 to me, makes a good scrabble game, but it is nothing else. There is no
gainsaying the fact that the conviction of the petitioner (assuming that the petitioner is convicted) under
the statute, will carry with it the stain of subversion although he had not been charged with subversion.
This, so I submit, does violence to due process and the constitutional guaranty against hazy accusations.12
I likewise find the law to be vague and in violation of the double jeopardy clause of the Charter. It is vague
because it is unsure which offense to punish: Illegal Possession or Subversion. It states that subversion
merely qualifies the primary offense of "illegal possession" yet, if this is so, the accused may still be held
guilty of subversion later. However, if the accused has been found liable for illegal possession in
furtherance of subversion, it means that he is also guilty of subversion, which would clearly not require a
subsequent prosecution.
The very efforts of this Court to make anything out of this strange animal have not been, so I submit,
encouraging. In one case, 13 a prosecution for illegal possession of unlicensed firearm used in parricide
under the provisions of Presidential Decree No. 9 (which sired Presidential Decree No. 1866), it was held
that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide" includes the lesser offense
of Parricide." 14 If this were so, then, subversion would have been an ingredient of "illegal possession". So
also, conviction thereof should be an abatement of any proceeding for the other, yet, in a subsequent
ruling, 15 it was said that "illegal possession" used in the commission of homicide "does not operate to
extinguish [any] criminal liability for" homicide. Apparently, as the state of the law stands now, "illegal
possession" (or "manufacture") does not stop a later prosecution for subversion (or murder or homicide),
(as Tangan tells us) but just as apparently, we would have made possible a prosecution for a crime which
constitutes but an element of the "primary offense" (as Lazaro tells us), possible.
Clearly, the statute allows the possibility of a double jeopardy. I submit that while double jeopardy is a
matter of defense, the fact alone that the law permits such a possibility is sufficient to assail it for breach of
due process.
The fact that the accused has posted bail is of no moment. It would not have, for me, rescued the statute
from constitutional infirmity, notwithstanding the petitioner's "acceptance" (by posting bail) of the legality
of the proceedings against him.
Presidential Decree No. 1866, it has to be noted, was not passed by the regular legislature. It is one of the
many presidential issuances which had served the Marcos dictatorship, and served it well, as an instrument
of repression during the years of dissent and resistance. Because of it, many courageous freedom fighters
perished or languished in various places of detention throughout our country. It is unfortunate that this
oppressive Presidential Decree has been allowed to remain in our statute books after the apparatus of
dictatorship had been dismantled and supposed freedom attained, and sadly, it is still being used as
incessantly as in the previous regime. It is an anachronism in the broad democratic space or what little we
have of it today. I am, accordingly, for striking the Decree down.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. 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.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 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 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 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:
(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 afford impunity.
(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, sharing 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, RENATO (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 offices and/or ranking leaders,
of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that
BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over 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 above-named 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
established in the Philippines a Communist regime.
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 denied 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 overboard, 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 bill of attainder or ex port facto law shall be
enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence is the
substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against bills of
attainder serves to implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in perspective,
bills of attainder were employed to suppress unpopular causes and political minorities, 8 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 stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned 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 CCP without any of the forms or safeguards 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" issued 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 focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting
and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 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 shall be fined not more than $10,000 or imprisoned for
not more than one year, or both.
This statute specified 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 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, lend a
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 in 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 setforth 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 had found, and the Court of Appeals has sustained its conclusion, that the
Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime 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 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 organizationl guilt is nonetheless imputed despite the requirement
of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy,
which has been referred to as a "dragneet 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. 13 But the statute specifically
required 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." 14 The ingredient of specific intent to
pursue the unlawful goals of the Party must be shown by "overt acts." 15 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 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 attainder. 16 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 was shown to apply only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 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 method," was upheld by this Court. 19
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. 20 It is upon this ground that statutes which disqualified those who had taken part in the
rebellion against the Government of the United States during the Civil War from holding office, 21 or from
exercising their profession, 22 or which prohibited the payment of further compensation to individuals
named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it
a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 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 determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret,
oath-bound 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 purpose 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 association in the
included class: "It 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: "It 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 memberships
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 member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous 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 the punishment of what some of its
members conceived to be crimes. 27
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. 28 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." 29 More recently, in Lansang vs. Garcia, 30 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 Justice 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 that it
is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 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.
... 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 compensationto named
individuals or employees. Under these circumstances, viewed against the legislative background, the
statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them
it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the
penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates
is describedwith such particularity that, in probability, few organizationswill come within the statutory
terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether
that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation
issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly
statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only
those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of
the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20,
1957, are punished. Those whowere members of the Party or of any other subversive associationat the
time of the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that
such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by
the Act are thereforenot 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
Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the
basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription
spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they
are thought by some to occupy a"preferred position" in the hierarchy of constitutional
values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive
evil. This isthe reason why before enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence
but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a
totalitarian regime subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, 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 withthis continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these findings in
enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to
takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund
elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a
question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals,
and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so
vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on
governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan
ultimate conclusion founded on underlying facts and oncriteria 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 rationalbasis for believing that
they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be
demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if
laws are seen to have a 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.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control
Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling
the worldCommunist movement and that they operate primarily to"advance the objectives of such world
Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia
v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings.
... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich
Communist organizations pose not only to existing governmentin the United States, but to the United
States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate
Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion
Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to require
elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other
value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value
can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against
dictatorial governmentsis without force where the existing structure of government provides for peaceful
and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor
revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive
that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force
and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties
when the end can be more narrowly achieved." 42 The requirement of knowing membership,as
distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a
subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and when
membership is acceptedor retained with knowledge that the organization is engaged inan unlawful
purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the
unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad 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 definitionsof and the penalties prescribed for the different acts prescribedare stated in
section 4 which requires that membershipin 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 thatthe
overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and
other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight
rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a
metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not
speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a
metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely,
"establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and
domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The
language used by the appellant clearly imported anoverthrow of the Government by violence, and it
should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood.
The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of
the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the
Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the
mild interpretation which the appellant wouldhave us impute to the language." 45
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 orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so
indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof
national security and the preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach,
advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or
becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe
purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be
ineligible for emplymentby the United States or any department or agencythereof, for the five years next
following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected
speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis
of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We
can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group
engagingin this same forbidden advocacy, should receive anygreater degree of protection from the
guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-
preservationand the values of liberty are as complex and intricate as inthe situation described in the
legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative
judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis
not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other
methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an
effort at compromisebetween the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom
the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law
shall embrace more than one subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which
reads:
And provided, finally, That one who conspires with anyother person to overthrow the Government of the
Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the
control and domination of any lien power, shallbe punished by prision correccional to prision mayor with
allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the
Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or
any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but
under an alien democratic power likethe United States or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1
providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that
the subject matter is subversionin general which has for its fundamental purpose the substitutionof a
foreign totalitarian regime in place of theexisting Government and not merely subversion by
Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the
Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the
proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will
be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion
Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the
needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of
freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any
prosecution under the Act.The Government, in addition to proving such circumstancesas may affect
liability, must establish the following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish
in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined
such organization;and (c) that he did so knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the
Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power;
(b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the Communist
Party ofthe Philippines or of any other subversive association: weleave this matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are
herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding
thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised.
What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of
those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless,
my own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe fears,
perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and
expression3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed,
compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety and security
shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn
enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in
arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of
the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have
introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it,
a greater understanding for the governmentalresponde to situations of that character. It is inthat light that
the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there
was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it
would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would
be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto 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 November19, 1934 as Chairman of the
Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act
which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In
England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without
regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable
quality — of acquiring and disposing property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the
penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder,
like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson
was includedin a bill of attainder presented to Parliament becauseof his reform activities."5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to
named individuals or easilyascertainable members of a group in such a way as to inflicton them
punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath
requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the
success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were
criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified
as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained
inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the
meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the
legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes,
in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any
of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether
conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith
its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof
Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be
heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid
beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of
the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be
no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen
within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe
subjected to the like deprivation, the clause would beequally open to objection. And further, it these
clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do certain specified acts, theywould be no less within the
inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating
the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the
administration of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided.
Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner
Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all
that was necessarywas that the applicant have three years practice in the statecourts to which he
belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken
under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience
subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With
such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath
requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same
ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute
adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time
they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit
is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof 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 againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress
under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in
1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for
several yearsworking for the government. The government agencies,which had lawfully employed them,
were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over
their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way
of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor
members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe
President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and
thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on
their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that
date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The
Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of
proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill
of attainder insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.'
InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts
punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ...
On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the
same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar
oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no
matter what their form,that apply either to named individuals or to easily ascertainablemembers of a
group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited
by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party
to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent
Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a
quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and
Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district court of California withservicing as
a member of an executive board of a labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the bill of attainder clause was
thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice
Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that
the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils
it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional
system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore
soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral
safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then
after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of
casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation
designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring
about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho
commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view,
make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob
of deciding what persons have committed the specifiedacts or possessed the specified characteristics.
Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability — members of the Communist
Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive
ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained,
the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to
the Cummingsprinciple. 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 notto specified organizations but to
described activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or
described in terms of conduct which,because it is past conduct, operates only as a designationof particular
persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or controlof
certain foreign powers and to operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative findings as tofact are supported by the preponderance of
the evidence.Present activity constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably
designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the
mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-
SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent
cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is, of course, different but I am unable togo along with
them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit character as shown by this
excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure
their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The
Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt
acts, and that they joined the Partyknowing its subversive character and with specific intentto further its
objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the
loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in
the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill
attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot
save the statute. It does seem clear to me that fromthe 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
taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual
libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to
be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the
Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its
shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There
was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no
mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our
Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no
warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense
of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can
but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may
give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to
constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can
reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a
subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is
trueespecially in centers of learning where scholars competentin their line may, as a result of their studies,
assert thata future is bleak for the system of government now favoredby Western democracies. There may
be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a
penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any
among us who would wish todissolve this union or to change its republican form, letthem stand
undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft
free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to
theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech
cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other
heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity
to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It
does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental
presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely
ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle
fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is
the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a
governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for
me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party
casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its
treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist
offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is
one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the
freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas,
however such ideas may be viewed inother countries and whatever change in the existing structureof
government it may be hoped that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries —
seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an
outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of
the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend
upon the use of force by Government to make allthe beliefs and opinions of the people fit into a
commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our
people of the boldspirit of adventure and progress which has brought thisNation to its present greatness.
The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in
speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during
the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies,
groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by
depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the
power of Government. The Communist Party hasnever been more than a small group in this country.
Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party
by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies
and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow.
They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut
withheld any power to punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot
sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test
of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the
challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude
on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could
not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on
constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that
the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and
minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that
suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the
undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in
a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to
it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a
condition of destitution andmisery. It may not be able to change matters radically.At least, it should take
earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that
they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook
forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a
response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the
embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance
with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the
forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of
our people. 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.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding
thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised.
What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of
those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless,
my own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe fears,
perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and
expression3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed,
compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety and security
shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn
enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in
arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of
the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have
introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it,
a greater understanding for the governmentalresponde to situations of that character. It is inthat light that
the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there
was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it
would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would
be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto 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 November19, 1934 as Chairman of the
Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act
which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In
England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without
regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable
quality — of acquiring and disposing property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the
penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder,
like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson
was includedin a bill of attainder presented to Parliament becauseof his reform activities."5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to
named individuals or easilyascertainable members of a group in such a way as to inflicton them
punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath
requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the
success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were
criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified
as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained
inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the
meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the
legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes,
in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any
of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether
conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith
its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof
Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be
heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid
beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of
the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be
no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen
within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe
subjected to the like deprivation, the clause would beequally open to objection. And further, it these
clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do certain specified acts, theywould be no less within the
inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating
the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the
administration of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided.
Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner
Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all
that was necessarywas that the applicant have three years practice in the statecourts to which he
belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken
under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience
subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With
such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath
requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same
ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute
adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time
they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit
is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof 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 againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress
under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in
1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for
several yearsworking for the government. The government agencies,which had lawfully employed them,
were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over
their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way
of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor
members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe
President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and
thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on
their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that
date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The
Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of
proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill
of attainder insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.'
InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts
punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ...
On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the
same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar
oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no
matter what their form,that apply either to named individuals or to easily ascertainablemembers of a
group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited
by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party
to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent
Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a
quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and
Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district court of California withservicing as
a member of an executive board of a labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the bill of attainder clause was
thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice
Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that
the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils
it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional
system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore
soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral
safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then
after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of
casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation
designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring
about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho
commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view,
make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob
of deciding what persons have committed the specifiedacts or possessed the specified characteristics.
Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability — members of the Communist
Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive
ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained,
the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to
the Cummingsprinciple. 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 notto specified organizations but to
described activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or
described in terms of conduct which,because it is past conduct, operates only as a designationof particular
persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or controlof
certain foreign powers and to operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative findings as tofact are supported by the preponderance of
the evidence.Present activity constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably
designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the
mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-
SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent
cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is, of course, different but I am unable togo along with
them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit character as shown by this
excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure
their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The
Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt
acts, and that they joined the Partyknowing its subversive character and with specific intentto further its
objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the
loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in
the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill
attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot
save the statute. It does seem clear to me that fromthe 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
taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual
libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to
be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the
Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its
shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There
was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no
mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our
Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no
warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense
of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can
but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may
give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to
constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can
reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a
subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is
trueespecially in centers of learning where scholars competentin their line may, as a result of their studies,
assert thata future is bleak for the system of government now favoredby Western democracies. There may
be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a
penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any
among us who would wish todissolve this union or to change its republican form, letthem stand
undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft
free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to
theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech
cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other
heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity
to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It
does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental
presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely
ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle
fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is
the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a
governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for
me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party
casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its
treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist
offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is
one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the
freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas,
however such ideas may be viewed inother countries and whatever change in the existing structureof
government it may be hoped that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries —
seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an
outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of
the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend
upon the use of force by Government to make allthe beliefs and opinions of the people fit into a
commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our
people of the boldspirit of adventure and progress which has brought thisNation to its present greatness.
The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in
speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during
the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies,
groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by
depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the
power of Government. The Communist Party hasnever been more than a small group in this country.
Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party
by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies
and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow.
They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut
withheld any power to punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot
sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test
of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the
challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude
on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could
not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on
constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that
the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and
minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that
suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the
undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in
a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to
it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a
condition of destitution andmisery. It may not be able to change matters radically.At least, it should take
earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that
they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook
forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a
response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the
embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance
with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the
forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of
our people. 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its National President (BOCEA
National Executive Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the Department of Finance, HON. NAPOLEON
L. MORALES, in his capacity as Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her
capacity as Commissioner of the Bureau of Internal Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with prayer for injunctive relief/s under Rule
65 of the 1997 Rules of Civil Procedure, as amended, to declare Republic Act (R.A.) No. 9335,2 otherwise
known as the Attrition Act of 2005, and its Implementing Rules and Regulations3 (IRR) unconstitutional, and
the implementation thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No. 9335 which took
effect on February 11, 2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation
Board (Board). It covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in
the excess collection of the targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or
his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials nominated by
their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release
of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose
revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted
by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the
issuance of rules and regulations and (6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and
issue the implementing rules and regulations of RA [No.] 9335, to be approved by a Joint Congressional
Oversight Committee created for such purpose.5
The Joint Congressional Oversight Committee approved the assailed IRR on May 22, 2006. Subsequently,
the IRR was published on May 30, 2006 in two newspapers of general circulation, the Philippine Star and
the Manila Standard, and became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No. 9335 are tainted with constitutional
infirmities in violation of the fundamental rights of its members, petitioner Bureau of Customs Employees
Association (BOCEA), an association of rank-and-file employees of the Bureau of Customs (BOC), duly
registered with the Department of Labor and Employment (DOLE) and the Civil Service Commission (CSC),
and represented by its National President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the present
petition before this Court against respondents Margarito B. Teves, in his capacity as Secretary of the
Department of Finance (DOF), Commissioner Napoleon L. Morales (Commissioner Morales), in his capacity
as BOC Commissioner, and Lilian B. Hefti, in her capacity as Commissioner of the Bureau of Internal
Revenue (BIR). In its petition, BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No. 9335 and its IRR,
and in order to comply with the stringent deadlines thereof, started to disseminate Collection District
Performance Contracts7 (Performance Contracts) for the lower ranking officials and rank-and-file
employees to sign. The Performance Contract pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and Regulations (IRR) of the
Attrition Act of 2005, that provides for the setting of criteria and procedures for removing from the service
Officials and Employees whose revenue collection fall short of the target in accordance with Section 7 of
Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this Agreement hereby
agree and so agreed to perform the following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and further
accepts/commits to meet the said target under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes and binds
himself/herself that in the event the revenue collection falls short of the target with due consideration of
all relevant factors affecting the level of collection as provided in the rules and regulations promulgated
under the Act and its IRR, he/she will voluntarily submit to the provisions of Sec. 25 (b) of the IRR and Sec.
7 of the Act; and
b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or Employees under
his/her section the said Revenue Collection Target and require them to execute a Performance Contract,
and direct them to accept their individual target. The Performance Contract executed by the respective
Examiners/Appraisers/Employees shall be submitted to the Office of the Commissioner through the LAIC
on or before March 31, 2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet due to the Government’s own policies on
reduced tariff rates and tax breaks to big businesses, the occurrence of natural calamities and because of
other economic factors. BOCEA claimed that some BOC employees were coerced and forced to sign the
Performance Contract. The majority of them, however, did not sign. In particular, officers of BOCEA were
summoned and required to sign the Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought several dialogues with BOC officials but
the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the District Collectors,
Chiefs of Formal Entry Divisions, Principal Customs Appraisers and Principal Customs Examiners of the BOC
during command conferences to make them sign their Performance Contracts. Likewise, BOC Deputy
Commissioner Reynaldo Umali (Deputy Commissioner Umali) individually spoke to said personnel to
convince them to sign said contracts. Said personnel were threatened that if they do not sign their
respective Performance Contracts, they would face possible reassignment, reshuffling, or worse, be placed
on floating status. Thus, all the District Collectors, except a certain Atty. Carlos So of the Collection District
III of the Ninoy Aquino International Airport (NAIA), signed the Performance Contracts.
BOCEA further claimed that Pagulayan was constantly harassed and threatened with lawsuits. Pagulayan
approached Deputy Commissioner Umali to ask the BOC officials to stop all forms of harassment, but the
latter merely said that he would look into the matter. On February 5, 2008, BOCEA through counsel wrote
the Revenue Performance Evaluation Board (Board) to desist from implementing R.A. No. 9335 and its IRR
and from requiring rank-and-file employees of the BOC and BIR to sign Performance Contracts.9 In his
letter-reply10 dated February 12, 2008, Deputy Commissioner Umali denied having coerced any BOC
employee to sign a Performance Contract. He also defended the BOC, invoking its mandate of merely
implementing the law. Finally, Pagulayan and BOCEA’s counsel, on separate occasions, requested for a
certified true copy of the Performance Contract from Deputy Commissioner Umali but the latter failed to
furnish them a copy.11
This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in view of the
unconstitutionality of R.A. No. 9335 and its IRR, and their adverse effects on the constitutional rights of
BOC officials and employees, direct resort to this Court is justified. BOCEA argued, among others, that its
members and other BOC employees are in great danger of losing their jobs should they fail to meet the
required quota provided under the law, in clear violation of their constitutional right to security of tenure,
and at their and their respective families’ prejudice.
In their Comment,12 respondents, through the Office of the Solicitor General (OSG), countered that R.A. No.
9335 and its IRR do not violate the right to due process and right to security of tenure of BIR and BOC
employees. The OSG stressed that the guarantee of security of tenure under the 1987 Constitution is not a
guarantee of perpetual employment. R.A. No. 9335 and its IRR provided a reasonable and valid ground for
the dismissal of an employee which is germane to the purpose of the law. Likewise, R.A. No. 9335 and its
IRR provided that an employee may only be separated from the service upon compliance with substantive
and procedural due process. The OSG added that R.A. No. 9335 and its IRR must enjoy the presumption of
constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that are unreasonable to achieve its stated
objectives; that the law is unduly oppressive of BIR and BOC employees as it shifts the extreme burden
upon their shoulders when the Government itself has adopted measures that make collection difficult such
as reduced tariff rates to almost zero percent and tax exemption of big businesses; and that the law is
discriminatory of BIR and BOC employees. BOCEA manifested that only the high-ranking officials of the BOC
benefited largely from the reward system under R.A. No. 9335 despite the fact that they were not the ones
directly toiling to collect revenue. Moreover, despite the BOCEA’s numerous requests,14 BOC continually
refused to provide BOCEA the Expenditure Plan on how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party List v. Purisima,
BOCEA filed a Motion to Consolidate15 the present case with Abakada on April 16, 2008. However, pending
action on said motion, the Court rendered its decision in Abakada on August 14, 2008. Thus, the
consolidation of this case with Abakada was rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C. Corona, declared
Section 1217of R.A. No. 9335 creating a Joint Congressional Oversight Committee to approve the IRR as
unconstitutional and violative of the principle of separation of powers. However, the constitutionality of
the remaining provisions of R.A. No. 9335 was upheld pursuant to Section 1318 of R.A. No. 9335. The Court
also held that until the contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective even
without the approval of the Joint Congressional Oversight Committee.19
Notwithstanding our ruling in Abakada, both parties complied with our Resolution20 dated February 10,
2009, requiring them to submit their respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE PROCESS OF THE COVERED
BIR AND BOC OFFICIALS AND EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND
EMPLOYEES TO THE EQUAL PROTECTION OF THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE
THE RIGHT TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS AND EMPLOYEES AS ENSHRINED UNDER
SECTION 2 (3), ARTICLE IX (B) OF THE CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE
REVENUE PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE PRINCIPLE OF SEPARATION OF
POWERS ENSHRINED IN THE CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND HENCE[,] UNCONSTITUTIONAL
BECAUSE IT INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A PARTICULAR GROUP OR CLASS OF
OFFICIALS AND EMPLOYEES WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due course to its petition, events unfolded
showing the patent unconstitutionality of R.A. No. 9335. It narrated that during the first year of the
implementation of R.A. No. 9335, BOC employees exerted commendable efforts to attain their revenue
target of ₱196 billion which they surpassed by as much as ₱2 billion for that year alone. However, this was
attained only because oil companies made advance tax payments to BOC. Moreover, BOC employees were
given their "reward" for surpassing said target only in 2008, the distribution of which they described as
unjust, unfair, dubious and fraudulent because only top officials of BOC got the huge sum of reward while
the employees, who did the hard task of collecting, received a mere pittance of around ₱8,500.00. In the
same manner, the Bonds Division of BOC-NAIA collected 400+% of its designated target but the higher
management gave out to the employees a measly sum of ₱8,500.00 while the top level officials partook of
millions of the excess collections. BOCEA relies on a piece of information revealed by a newspaper showing
the list of BOC officials who apparently earned huge amounts of money by way of reward.22 It claims that
the recipients thereof included lawyers, support personnel and other employees, including a dentist, who
performed no collection functions at all. These alleged anomalous selection, distribution and allocation of
rewards was due to the failure of R.A. No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few cases of attrition for the Fiscal Year 2007 by
subjecting five BOC officials from the Port of Manila to attrition despite the fact that the Port of Manila
substantially complied with the provisions of R.A. No. 9335. It is thus submitted that the selection of these
officials for attrition without proper investigation was nothing less than arbitrary. Further, the legislative
and executive departments’ promulgation of issuances and the Government’s accession to regional trade
agreements have caused a significant diminution of the tariff rates, thus, decreasing over-all collection.
These unrealistic settings of revenue targets seriously affect BIR and BOC employees tasked with the
burden of collection, and worse, subjected them to attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to due process because the
termination of employees who had not attained their revenue targets for the year is peremptory and done
without any form of hearing to allow said employees to ventilate their side. Moreover, R.A. No. 9335 and
its IRR do not comply with the requirements under CSC rules and regulations as the dismissal in this case is
immediately executory. Such immediately executory nature of the Board’s decision negates the remedies
available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to equal protection of the law
because R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC employees as compared to
employees of other revenue generating government agencies like the Philippine Amusement and Gaming
Corporation, Department of Transportation and Communication, the Air Transportation Office, the Land
Transportation Office, and the Philippine Charity Sweepstakes Office, among others, which are not subject
to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to security of tenure because R.A. No.
9335 and its IRR effectively removed remedies provided in the ordinary course of administrative procedure
afforded to government employees. The law likewise created another ground for dismissal, i.e., non-
attainment of revenue collection target, which is not provided under CSC rules and which is, by its nature,
unpredictable and therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to the Revenue
Performance Evaluation Board (Board) the unbridled discretion of formulating the criteria for termination,
the manner of allocating targets, the distribution of rewards and the determination of relevant factors
affecting the targets of collection, which is tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group or class of
officials and employees without trial. This is evident from the fact that the law confers upon the Board the
power to impose the penalty of removal upon employees who do not meet their revenue targets; that the
same is without the benefit of hearing; and that the removal from service is immediately executory. Lastly,
it disregards the presumption of regularity in the performance of the official functions of a public officer.25
On the other hand, respondents through the OSG stress that except for Section 12 of R.A. No. 9335, R.A.
No. 9335 and its IRR are constitutional, as per our ruling in Abakada. Nevertheless, the OSG argues that the
classification of BIR and BOC employees as public officers under R.A. No. 9335 is based on a valid and
substantial distinction since the revenue generated by the BIR and BOC is essentially in the form of taxes,
which is the lifeblood of the State, while the revenue produced by other agencies is merely incidental or
secondary to their governmental functions; that in view of their mandate, and for purposes of tax
collection, the BIR and BOC are sui generis; that R.A. No. 9335 complies with the "completeness" and
"sufficient standard" tests for the permissive delegation of legislative power to the Board; that the Board
exercises its delegated power consistent with the policy laid down in the law, that is, to optimize the
revenue generation capability and collection of the BIR and the BOC; that parameters were set in order
that the Board may identify the officials and employees subject to attrition, and the proper procedure for
their removal in case they fail to meet the targets set in the Performance Contract were provided; and that
the rights of BIR and BOC employees to due process of law and security of tenure are duly accorded by R.A.
No. 9335. The OSG likewise maintains that there was no encroachment of judicial power in the enactment
of R.A. No. 9335 amounting to a bill of attainder since R.A. No. 9335 and its IRR merely defined the offense
and provided for the penalty that may be imposed. Finally, the OSG reiterates that the separation from the
service of any BIR or BOC employee under R.A. No. 9335 and its IRR shall be done only upon due
consideration of all relevant factors affecting the level of collection, subject to Civil Service laws, rules and
regulations, and in compliance with substantive and procedural due process. The OSG opines that the
Performance Contract, far from violating the BIR and BOC employees’ right to due process, actually serves
as a notice of the revenue target they have to meet and the possible consequences of failing to meet the
same. More, there is nothing in the law which prevents the aggrieved party from appealing the
unfavorable decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s members to: (a) equal protection of
laws, (b) security of tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus standi. BOCEA
impugns the constitutionality of R.A. No. 9335 and its IRR because its members, who are rank-and-file
employees of the BOC, are actually covered by the law and its IRR. BOCEA’s members have a personal and
substantial interest in the case, such that they have sustained or will sustain, direct injury as a result of the
enforcement of R.A. No. 9335 and its IRR.27
However, we find no merit in the petition and perforce dismiss the same.
It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its IRR are being
challenged. The Court already settled the majority of the same issues raised by BOCEA in our decision in
Abakada, which attained finality on September 17, 2008. As such, our ruling therein is worthy of reiteration
in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great branches of government has
exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.28 Necessarily imbedded in this doctrine is the principle of non-delegation of powers, as expressed
in the Latin maxim potestas delegata non delegari potest, which means "what has been delegated, cannot
be delegated." This doctrine is based on the ethical principle that such delegated power constitutes not
only a right but a duty to be performed by the delegate through the instrumentality of his own judgment
and not through the intervening mind of another.29However, this principle of non-delegation of powers
admits of numerous exceptions,30 one of which is the delegation of legislative power to various specialized
administrative agencies like the Board in this case.
The rationale for the aforementioned exception was clearly explained in our ruling in Gerochi v.
Department of Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of legislative power to various
specialized administrative agencies is allowed as an exception to this principle. Given the volume and
variety of interactions in today’s society, it is doubtful if the legislature can promulgate laws that will deal
adequately with and respond promptly to the minutiae of everyday life. Hence, the need to delegate to
administrative bodies — the principal agencies tasked to execute laws in their specialized fields — the
authority to promulgate rules and regulations to implement a given statute and effectuate its policies. All
that is required for the valid exercise of this power of subordinate legislation is that the regulation be
germane to the objects and purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are denominated as the
completeness test and the sufficient standard test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the
sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out
or implemented by the delegate. It lays down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation
from running riot. To be sufficient, the standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide the President in fixing revenue targets
and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of
the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a
system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the delegated power to the President to
fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund, hereinafter referred to as the
Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their
respective revenue targets of the year, as determined by the Development Budget and Coordinating
Committee (DBCC), in the following percentages:
Excess of Collection [Over] the Revenue Percent (%) of the Excess Collection to Accrue
Targets to the Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC
for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by
the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies’
revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts
in the case of the BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue collection expected respectively of the BIR
and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the
President to Congress. Thus, the determination of revenue targets does not rest solely on the President as
it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least 7.5% may
be removed from the service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency shall have the following powers
and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees whose revenue
collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules and regulations promulgated under
this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural
due process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, and
has no historical record of collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period
under consideration unless the transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from economic difficulties brought
about by natural calamities or force majeure or economic causes as may be determined by the Board,
termination shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided,
That such decision shall be immediately executory: Provided, further, That the application of the criteria
for the separation of an official or employee from service under this Act shall be without prejudice to the
application of other relevant laws on accountability of public officers and employees, such as the Code of
Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices
Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient standards: "public interest", "justice and
equity", "public convenience and welfare" and "simplicity, economy and welfare". In this case, the declared
policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused
with public interest.33
We could not but deduce that the completeness test and the sufficient standard test were fully satisfied by
R.A. No. 9335, as evident from the aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 534 of
R.A. No. 9335 also provides for the incentives due to District Collection Offices. While it is apparent that
the last paragraph of Section 5 provides that "[t]he allocation, distribution and release of the district
reward shall likewise be prescribed by the rules and regulations of the Revenue Performance and
Evaluation Board," Section 7 (a)35 of R.A. No. 9335 clearly mandates and sets the parameters for the Board
by providing that such rules and guidelines for the allocation, distribution and release of the fund shall be
in accordance with Sections 4 and 5 of R.A. No. 9335. In sum, the Court finds that R.A. No. 9335, read and
appreciated in its entirety, is complete in all its essential terms and conditions, and that it contains
sufficient standards as to negate BOCEA’s supposition of undue delegation of legislative power to the
Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly situated should be treated in a similar
manner, both as to rights conferred and responsibilities imposed. The purpose of the equal protection
clause is to secure every person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statute or by its improper execution through
the state’s duly constituted authorities. In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective.361awphil
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary. With respect to RA [No.] 9335, its expressed public policy is
the optimization of the revenue-generation capability and collection of the BIR and the BOC. Since the
subject of the law is the revenue-generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the
law concerns only the BIR and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal Revenue, which shall be headed by and
subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by
the President upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall be headed and subject to the
management and control of the Commissioner of Customs, who shall be appointed by the President upon
the recommendation of the Secretary [of the DOF] and hereinafter referred to as Commissioner, shall have
the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all
ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of
being the instrumentalities through which the State exercises one of its great inherent functions —
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC under RA [No.] 9335 fully
satisfy the demands of equal protection.37
As it was imperatively correlated to the issue on equal protection, the issues on the security of tenure of
affected BIR and BOC officials and employees and their entitlement to due process were also settled in
Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials and employees of the BIR and
the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the
service for causes other than those provided by law and only after due process is accorded the employee.
In the case of RA [No.] 9335, it lays down a reasonable yardstick for removal (when the revenue collection
falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the performance of official
duties, a ground for disciplinary action under civil service laws. The action for removal is also subject to civil
service laws, rules and regulations and compliance with substantive and procedural due process.38
In addition, the essence of due process is simply an opportunity to be heard, or as applied to administrative
proceedings, a fair and reasonable opportunity to explain one’s side.39 BOCEA’s apprehension of
deprivation of due process finds its answer in Section 7 (b) and (c) of R.A. No. 9335.40 The concerned BIR or
BOC official or employee is not simply given a target revenue collection and capriciously left without any
quarter. R.A. No. 9335 and its IRR clearly give due consideration to all relevant factors41 that may affect the
level of collection. In the same manner, exemptions42 were set, contravening BOCEA’s claim that its
members may be removed for unattained target collection even due to causes which are beyond their
control. Moreover, an employee’s right to be heard is not at all prevented and his right to appeal is not
deprived of him.43 In fine, a BIR or BOC official or employee in this case cannot be arbitrarily removed from
the service without according him his constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to resolve the last, but
new issue raised by BOCEA, that is, whether R.A. No. 9335 is a bill of attainder proscribed under Section
22,44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a legislative act
which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential
to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a
punishment, penal or otherwise, and the lack of judicial trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City,46 Justice Florentino P. Feliciano
traces the roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few centuries back, Parliament would
at times enact bills or statutes which declared certain persons attainted and their blood corrupted so that
it lost all heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]). In more modern terms, a bill
of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and effects the
imposition of a penalty — the deprivation of life or liberty or property — not by the ordinary processes of
judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder (or bill of
pains and penalties, if it prescribed a penalty other than death) is in intent and effect a penal judgment
visited upon an identified person or group of persons (and not upon the general community) without a
prior charge or demand, without notice and hearing, without an opportunity to defend, without any of the
civilized forms and safeguards of the judicial process as we know it (People v. Ferrer, 48 SCRA 382 [1972];
Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252
[1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder wielded
as a means of legislative oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to inflict punishment
without a judicial trial. R.A. No. 9335 merely lays down the grounds for the termination of a BIR or BOC
official or employee and provides for the consequences thereof. The democratic processes are still
followed and the constitutional rights of the concerned employee are amply protected.
A final note.
We find that BOCEA’s petition is replete with allegations of defects and anomalies in allocation, distribution
and receipt of rewards. While BOCEA intimates that it intends to curb graft and corruption in the BOC in
particular and in the government in general which is nothing but noble, these intentions do not actually
pertain to the constitutionality of R.A. No. 9335 and its IRR, but rather in the faithful implementation
thereof. R.A. No. 9335 itself does not tolerate these pernicious acts of graft and corruption.48 As the Court
is not a trier of facts, the investigation on the veracity of, and the proper action on these anomalies are in
the hands of the Executive branch. Correlatively, the wisdom for the enactment of this law remains within
the domain of the Legislative branch. We merely interpret the law as it is. The Court has no discretion to
give statutes a meaning detached from the manifest intendment and language thereof.49 Just like any other
law, R.A. No. 9335 has in its favor the presumption of constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the Constitution and not one that is doubtful, speculative, or
argumentative.50 We have so declared in Abakada, and we now reiterate that R.A. No. 9335 and its IRR are
constitutional.
WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is
DISMISSED.
No costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

(On official leave)

ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.*
Associate Justice
Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Court.
RENATO C. CORONA
Chief Justice