U.S.
Supreme Court Held:
Eisenstadt v. Baird, 405 U.S. 438 (1972)
Eisenstadt v. Baird
No. 70-17
Argued November 17-18, 1971
Decided March 22, 1972
405 U.S. 438
Syllabus
Appellee attacks his conviction of violating Massachusetts law for giving a
woman a contraceptive foam at the close of his lecture to students on
contraception. That law makes it a felony for anyone to give away a drug,
medicine, instrument, or article for the prevention of conception except in
the case of (1) a registered physician administering or prescribing it for a
married person or (2) an active registered pharmacist furnishing it to a
married person presenting a registered physician's prescription. The District
Court dismissed appellee's petition for a writ of habeas corpus. The Court of
Appeals vacated the dismissal, holding that the statute is a prohibition on
contraception per se, and conflicts "with fundamental human rights"
under Griswold v. Connecticut, 381 U. S. 479. Appellant, inter alia, argues
that appellee lacks standing to assert the rights of unmarried persons denied
access to contraceptives because he was neither an authorized distributor
under the statute nor a single person unable to obtain contraceptives.
1. If, as the Court of Appeals held, the statute under which appellee was
convicted is not a health measure, appellee may not be prevented, because
he was not an authorized distributor, from attacking the statute in its alleged
discriminatory application to potential distributees. Appellee, furthermore,
has standing to assert the rights of unmarried persons denied access to
contraceptives because their ability to obtain them will be materially
impaired by enforcement of the statute. Cf. Griswold, supra; Barrows v.
Jackson, 346 U. S. 249. Pp. 405 U. S. 443-446.
2. By providing dissimilar treatment for married and unmarried persons who
are similarly situated, the statute violates the Equal Protection Clause of the
Fourteenth Amendment. Pp. 405 U. S. 446-455.
(a) The deterrence of fornication, a 90-day misdemeanor under
Massachusetts law, cannot reasonably be regarded as the purpose of the
statute, since the statute is riddled with exceptions making contraceptives
freely available for use in premarital sexual
Page 405 U. S. 439
relations and its scope and penalty structure are inconsistent with that
purpose. Pp. 405 U. S. 447-450.
(b) Similarly, the protection of public health through the regulation of the
distribution of potentially harmful articles cannot reasonably be regarded as
the purpose of the law, since, if health were the rationale, the statute would
be both discriminatory and overbroad, and federal and state laws already
regulate the distribution of drugs unsafe for use except under the supervision
of a licensed physician. Pp. 405 U. S. 450-452.
(c) Nor can the statute be sustained simply as a prohibition on
contraception per se, for, whatever the rights of the individual to access to
contraceptives may be, the rights must be the same for the unmarried and
the married alike. If, under Griswold, supra, the distribution of
contraceptives to married persons cannot be prohibited, a ban on distribution
to unmarried persons would be equally impermissible, since the
constitutionally protected right of privacy inheres in the individual, not the
marital couple. If, on the other hand, Griswold is no bar to a prohibition on
the distribution of contraceptives, a prohibition limited to unmarried persons
would be underinclusive, and invidiously discriminator. Pp. 405 U. S. 452-
455.
429 F.2d 1398, affirmed.
United States Supreme Court
EISENSTADT v. BAIRD(1972)
No. 70-17
Argued: Decided: March 22, 1972
Appellee attacks his conviction of violating Massachusetts law for giving a
woman a contraceptive foam at the close of his lecture to students on
contraception. That law makes it a felony for anyone to give away a drug,
medicine, instrument, or article for the prevention of conception except in
the case of (1) a registered physician administering or prescribing it for a
married person or (2) an active registered pharmacist furnishing it to a
married person presenting a registered physician's prescription. The District
Court dismissed appellee's petition for a writ of habeas corpus. The Court of
Appeals vacated the dismissal, holding that the statute is a prohibition on
contraception per se and conflicts "with fundamental human rights" under
Griswold v. Connecticut, 381 U.S. 479 . Appellant, inter alia, argues that
appellee lacks standing to assert the rights of unmarried persons denied
access to contraceptives because he was neither an authorized distributor
under the statute nor a single person unable to obtain contraceptives. Held:
1. If, as the Court of Appeals held, the statute under which appellee
was convicted is not a health measure, appellee may not be
prevented, because he was not an authorized distributor, from
attacking the statute in its alleged discriminatory application to
potential distributees. Appellee, furthermore, has standing to assert
the rights of unmarried persons denied access to contraceptives
because their ability to obtain them will be materially impaired by
enforcement of the statute. Cf. Griswold, supra; Barrows v. Jackson,
346 U.S. 249 . Pp. 443-446.
2. By providing dissimilar treatment for married and unmarried
persons who are similarly situated, the statute violates the Equal
Protection Clause of the Fourteenth Amendment. Pp. 446-455.
(a) The deterrence of fornication, a 90-day misdemeanor under
Massachusetts law, cannot reasonably be regarded as the purpose of
the statute, since the statute is riddled with exceptions making
contraceptives freely available for use in premarital sexual [405
U.S. 438, 439]   relations and its scope and penalty structure are
inconsistent with that purpose. Pp. 447-450.
(b) Similarly, the protection of public health through the regulation
of the distribution of potentially harmful articles cannot reasonably
be regarded as the purpose of the law, since, if health were the
rationale, the statute would be both discriminatory and overbroad,
and federal and state laws already regulate the distribution of drugs
unsafe for use except under the supervision of a licensed physician.
Pp. 450-452.
(c) Nor can the statute be sustained simply as a prohibition on
contraception per se, for whatever the rights of the individual to
 access to contraceptives may be, the rights must be the same for the
unmarried and the married alike. If under Griswold, supra, the
distribution of contraceptives to married persons cannot be
prohibited, a ban on distribution to unmarried persons would be
equally impermissible, since the constitutionally protected right of
privacy inheres in the individual, not the marital couple. If, on the
other hand, Griswold is no bar to a prohibition on the distribution of
contraceptives, a prohibition limited to unmarried persons would be
underinclusive and invidiously discriminatory. Pp. 452-455.
429 F.2d 1398, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS,
STEWART, and MARSHALL, JJ., joined. DOUGLAS, J., filed a
concurring opinion, post, p. 455. WHITE, J., filed an opinion concurring in
the result, in which BLACKMUN, J., joined, post, p. 460. BURGER, C. J.,
filed a dissenting opinion, post, p. 465. POWELL and REHNQUIST, JJ.,
took no part in the consideration or decision of the case.
Joseph R. Nolan, Special Assistant Attorney General of Massachusetts,
argued the cause for appellant. With him on the brief were Robert H. Quinn,
Attorney General, John J. Irwin, Jr., and Ruth I. Abrams, Assistant
Attorneys General, and Garrett H. Byrne.
Joseph D. Tydings argued the cause for appellee. With him on the briefs was
Joseph J. Balliro.
Briefs of amici curiae urging affirmance were filed by Harriet F. Pilpel and
Nancy F. Wechsler for the [405 U.S. 438, 440]   Planned Parenthood
Federation of America, Inc.; by Roger P. Stokey for the Planned Parenthood
League of Massachusetts; by Melvin L. Wulf for the American Civil
Liberties Union et al.; and by Sylvia S. Ellison for Human Rights for
Women, Inc.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellee William Baird was convicted at a bench trial in the Massachusetts
Superior Court under Massachusetts General Laws Ann., c. 272, 21, first,
for exhibiting contraceptive articles in the course of delivering a lecture on
contraception to a group of students at Boston University and, second, for
giving a young woman a package of Emko vaginal foam at the close of his
address. 1 The Massachusetts Supreme Judicial Court unanimously set
aside the conviction for exhibiting contraceptives on the ground that it
violated Baird's First Amendment rights, but by a four-to-three vote
sustained the conviction for giving away the foam. Commonwealth v. Baird,
355 Mass. 746, 247 N. E. 2d 574 (1969). Baird subsequently filed a petition
for a federal writ of habeas corpus, which the District Court dismissed. 310
F. Supp. 951 (1970). On appeal, however, the Court of Appeals for the First
Circuit vacated the dismissal and remanded the action with directions to
grant the writ discharging Baird. 429 F.2d 1398 (1970). This appeal by the
Sheriff of Suffolk County, Massachusetts, followed, and we noted probable
jurisdiction. 401 U.S. 934 (1971). We affirm.
Massachusetts General Laws Ann., c. 272, 21, under which Baird was
convicted, provides a maximum five-year term of imprisonment for
"whoever . . . gives away . . . any drug, medicine, instrument or article
whatever [405 U.S. 438, 441]   for the prevention of conception," except as
authorized in 21A. Under 21A, "[a] registered physician may administer to
or prescribe for any married person drugs or articles intended for the
prevention of pregnancy or conception. [And a] registered pharmacist
actually engaged in the business of pharmacy may furnish such drugs or
articles to any married person presenting a prescription from a registered
physician." 2 As interpreted by the State Supreme Judicial [405 U.S. 438,
442]   Court, these provisions make it a felony for anyone, other than a
registered physician or pharmacist acting in accordance with the terms of
21A, to dispense any article with the intention that it be used for the
prevention of conception. The statutory scheme distinguishes among three
distinct classes of distributees - first, married persons may obtain
contraceptives to prevent pregnancy, but only from doctors or druggists on
prescription; second, single persons may not obtain contraceptives from
anyone to prevent pregnancy; and, third, married or single persons may
obtain contraceptives from anyone to prevent, not pregnancy, but the spread
of disease. This construction of state law is, of course, binding on us. E. g.,
Groppi v. Wisconsin, 400 U.S. 505, 507 (1971).
The legislative purposes that the statute is meant to serve are not altogether
clear. In Commonwealth v. Baird, supra, the Supreme Judicial Court noted
only the State's interest in protecting the health of its citizens: "[T]he
prohibition in 21," the court declared, "is directly related to" the State's goal
of "preventing the distribution of articles designed to prevent conception
which may have undesirable, if not dangerous, physical consequences." 355
Mass., at 753, 247 N. E. 2d, at 578. In a subsequent decision, Sturgis v.
Attorney General, 358 Mass. 37, ___, 260 N. E. 2d 687, 690 (1970), the
court, however, found "a second and more compelling ground for upholding
the statute" - namely, to protect morals through "regulating the private
sexual lives of single persons." 3 The Court of Appeals, for reasons that
will [405 U.S. 438, 443]   appear, did not consider the promotion of health
or the protection of morals through the deterrence of fornication to be the
legislative aim. Instead, the court concluded that the statutory goal was to
limit contraception in and of itself - a purpose that the court held conflicted
"with fundamental human rights" under Griswold v. Connecticut, 381 U.S.
479 (1965), where this Court struck down Connecticut's prohibition against
the use of contraceptives as an unconstitutional infringement of the right of
marital privacy. 429 F.2d, at 1401-1402.
We agree that the goals of deterring premarital sex and regulating the
distribution of potentially harmful articles cannot reasonably be regarded as
legislative aims of 21 and 21A. And we hold that the statute, viewed as a
prohibition on contraception per se, violates the rights of single persons
under the Equal Protection Clause of the Fourteenth Amendment.
I
We address at the outset appellant's contention that Baird does not have
standing to assert the rights of unmarried persons denied access to
contraceptives because he was neither an authorized distributor under 21A
nor a single person unable to obtain contraceptives. There can be no
question, of course, that Baird has sufficient interest in challenging the
statute's validity to satisfy the "case or controversy" requirement of Article
III of the Constitution. 4 Appellant's argument, however, is that [405 U.S.
438, 444]   this case is governed by the Court's self-imposed rules of
restraint, first, that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its
application might be unconstitutional," United States v. Raines, 362 U.S. 17,
21 (1960), and, second, the "closely related corollary that a litigant may only
assert his own constitutional rights or immunities," id., at 22. Here, appellant
contends that Baird's conviction rests on the restriction in 21A on
permissible distributors and that that restriction serves a valid health interest
independent of the limitation on authorized distributees. Appellant urges,
therefore, that Baird's action in giving away the foam fell squarely within
the conduct that the legislature meant and had power to prohibit and that
Baird should not be allowed to attack the statute in its application to
potential recipients. In any event, appellant concludes, since Baird was not
himself a single person denied access to contraceptives, he should not be
heard to assert their rights. We cannot agree.
The Court of Appeals held that the statute under which Baird was convicted
is not a health measure. If that view is correct, we do not see how Baird may
be prevented, because he was neither a doctor nor a druggist, from attacking
the statute in its alleged discriminatory application to potential distributees.
We think, too, that our self-imposed rule against the assertion of third-party
rights must be relaxed in this case just as in Griswold v. Connecticut, supra.
There the Executive Director of the Planned Parenthood League of
Connecticut and a licensed physician who had prescribed contraceptives for
married persons and been convicted as accessories to the crime of using
contraceptives were held to have standing to raise the constitutional rights of
the patients with whom they had a professional relationship. [405 U.S. 438,
445]   Appellant here argues that the absence of a professional or aiding-
and-abetting relationship distinguishes this case from Griswold. Yet, as the
Court's discussion of prior authority in Griswold, 381 U.S., at 481 ,
indicates, the doctor-patient and accessory-principal relationships are not the
only circumstances in which one person has been found to have standing to
assert the rights of another. Indeed, in Barrows v. Jackson, 346 U.S. 249
(1953), a seller of land was entitled to defend against an action for damages
for breach of a racially restrictive covenant on the ground that enforcement
of the covenant violated the equal protection rights of prospective non-
Caucasian purchasers. The relationship there between the defendant and
those whose rights he sought to assert was not simply the fortuitous
connection between a vendor and potential vendees, but the relationship
between one who acted to protect the rights of a minority and the minority
itself. Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme
Court, 71 Yale L. J. 599, 631 (1962). And so here the relationship between
Baird and those whose rights he seeks to assert is not simply that between a
distributor and potential distributees, but that between an advocate of the
rights of persons to obtain contraceptives and those desirous of doing so.
The very point of Baird's giving away the vaginal foam was to challenge the
Massachusetts statute that limited access to contraceptives.
In any event, more important than the nature of the relationship between the
litigant and those whose rights he seeks to assert is the impact of the
litigation on the third-party interests. 5 In Griswold, 381 U.S., at 481 ,
the [405 U.S. 438, 446]   Court stated: "The rights of husband and wife,
pressed here, are likely to be diluted or adversely affected unless those rights
are considered in a suit involving those who have this kind of confidential
relation to them." A similar situation obtains here. Enforcement of the
Massachusetts statute will materially impair the ability of single persons to
obtain contraceptives. In fact, the case for according standing to assert third-
party rights is stronger in this regard here than in Griswold because
unmarried persons denied access to contraceptives in Massachusetts, unlike
the users of contraceptives in Connecticut, are not themselves subject to
prosecution and, to that extent, are denied a forum in which to assert their
own rights. Cf. NAACP v. Alabama, 357 U.S. 449 (1958); Barrows v.
Jackson, supra. 6 The Massachusetts statute, unlike the Connecticut law
considered in Griswold, prohibits, not use, but distribution.
For the foregoing reasons we hold that Baird, who is now in a position, and
plainly has an adequate incentive, to assert the rights of unmarried persons
denied access to contraceptives, has standing to do so. We turn to the merits.
II
The basic principles governing application of the Equal Protection Clause of
the Fourteenth Amendment are familiar. AS THE CHIEF JUSTICE only
recently explained in Reed v. Reed, 404 U.S. 71, 75 -76 (1971):
"In applying that clause, this Court has consistently recognized that
the Fourteenth Amendment [405 U.S. 438, 447]   does not deny to
States the power to treat different classes of persons in different
ways. Barbier v. Connolly, 113 U.S. 27 (1885); Lindsley v. Natural
Carbonic Gas Co., 220 U.S. 61 (1911); Railway Express Agency v.
New York, 336 U.S. 106 (1949); McDonald v. Board of Election
Commissioners, 394 U.S. 802 (1969). The Equal Protection Clause
of that amendment does, however, deny to States the power to
 legislate that different treatment be accorded to persons placed by a
statute into different classes on the basis of criteria wholly unrelated
to the objective of that statute. A classification `must be reasonable,
not arbitrary, and must rest upon some ground of difference having
a fair and substantial relation to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike.' Royster
Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)."
The question for our determination in this case is whether there is some
ground of difference that rationally explains the different treatment accorded
married and unmarried persons under Massachusetts General Laws Ann., c.
272, 21 and 21A. 7 For the reasons that follow, we conclude that no such
ground exists.
First. Section 21 stems from Mass. Stat. 1879, c. 159, 1, which prohibited,
without exception, distribution of articles intended to be used as
contraceptives. In Commonwealth v. Allison, 227 Mass. 57, 62, 116 N. E.
265, [405 U.S. 438, 448]   266 (1917), the Massachusetts Supreme Judicial
Court explained that the law's "plain purpose is to protect purity, to preserve
chastity, to encourage continence and self restraint, to defend the sanctity of
the home, and thus to engender in the State and nation a virile and virtuous
race of men and women." Although the State clearly abandoned that purpose
with the enactment of 21A, at least insofar as the illicit sexual activities of
married persons are concerned, see n. 3, supra, the court reiterated in Sturgis
v. Attorney General, supra, that the object of the legislation is to discourage
premarital sexual intercourse. Conceding that the State could, consistently
with the Equal Protection Clause, regard the problems of extramarital and
premarital sexual relations as "[e]vils . . . of different dimensions and
proportions, requiring different remedies," Williamson v. Lee Optical Co.,
348 U.S. 483, 489 (1955), we cannot agree that the deterrence of premarital
sex may reasonably be regarded as the purpose of the Massachusetts law.
It would be plainly unreasonable to assume that Massachusetts has
prescribed pregnancy and the birth of an unwanted child as punishment for
fornication, which is a misdemeanor under Massachusetts General Laws
Ann., c. 272, 18. Aside from the scheme of values that assumption would
attribute to the State, it is abundantly clear that the effect of the ban on
distribution of contraceptives to unmarried persons has at best a marginal
relation to the proffered objective. What Mr. Justice Goldberg said in
Griswold v. Connecticut, supra, at 498 (concurring opinion), concerning the
effect of Connecticut's prohibition on the use of contraceptives in
discouraging extramarital sexual relations, is equally applicable here. "The
rationality of this justification is dubious, particularly in light of the
admitted widespread availability to all persons in the State of Connecticut,
unmarried as well as married, of birth-control devices for the [405 U.S. 438,
449]   prevention of disease, as distinguished from the prevention of
conception." See also id., at 505-507 (WHITE, J., concurring in judgment).
Like Connecticut's laws, 21 and 21A do not at all regulate the distribution of
contraceptives when they are to be used to prevent, not pregnancy, but the
spread of disease. Commonwealth v. Corbett, 307 Mass. 7, 29 N. E. 2d 151
(1940), cited with approval in Commonwealth v. Baird, 355 Mass., at 754,
247 N. E. 2d, at 579. Nor, in making contraceptives available to married
persons without regard to their intended use, does Massachusetts attempt to
deter married persons from engaging in illicit sexual relations with
unmarried persons. Even on the assumption that the fear of pregnancy
operates as a deterrent to fornication, the Massachusetts statute is thus so
riddled with exceptions that deterrence of premarital sex cannot reasonably
be regarded as its aim.
Moreover, 21 and 21A on their face have a dubious relation to the State's
criminal prohibition on fornication. As the Court of Appeals explained,
"Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar
fine, or three months in jail. Massachusetts General Laws Ann. c. 272 18.
Violation of the present statute is a felony, punishable by five years in
prison. We find it hard to believe that the legislature adopted a statute
carrying a five-year penalty for its possible, obviously by no means fully
effective, deterrence of the commission of a ninety-day misdemeanor." 429
F.2d, at 1401. Even conceding the legislature a full measure of discretion in
fashioning means to prevent fornication, and recognizing that the State may
seek to deter prohibited conduct by punishing more severely those who
facilitate than those who actually engage in its commission, we, like the
Court of Appeals, cannot believe that in this instance Massachusetts has
chosen to expose the aider and abetter who simply gives away a
contraceptive to [405 U.S. 438, 450]   20 times the 90-day sentence of the
offender himself. The very terms of the State's criminal statutes, coupled
with the de minimis effect of 21 and 21A in deterring fornication, thus
compel the conclusion that such deterrence cannot reasonably be taken as
the purpose of the ban on distribution of contraceptives to unmarried
persons.
Second. Section 21A was added to the Massachusetts General Laws by Stat.
1966, c. 265, 1. The Supreme Judicial Court in Commonwealth v. Baird,
supra, held that the purpose of the amendment was to serve the health needs
of the community by regulating the distribution of potentially harmful
articles. It is plain that Massachusetts had no such purpose in mind before
the enactment of 21A. As the Court of Appeals remarked, "Consistent with
the fact that the statute was contained in a chapter dealing with `Crimes
Against Chastity, Morality, Decency and Good Order,' it was cast only in
terms of morals. A physician was forbidden to prescribe contraceptives even
when needed for the protection of health. Commonwealth v. Gardner, 1938,
300 Mass. 372, 15 N. E. 2d 222." 429 F.2d, at 1401. Nor did the Court of
Appeals "believe that the legislature [in enacting 21A] suddenly reversed its
field and developed an interest in health. Rather, it merely made what it
thought to be the precise accommodation necessary to escape the Griswold
ruling." Ibid.
Again, we must agree with the Court of Appeals. If health were the rationale
of 21A, the statute would be both discriminatory and overbroad. Dissenting
in Commonwealth v. Baird, 355 Mass., at 758, 247 N. E. 2d, at 581, Justices
Whittemore and Cutter stated that they saw "in 21 and 21A, read together,
no public health purpose. If there is need to have a physician prescribe (and
a pharmacist dispense) contraceptives, that need is as great for unmarried
persons as for married persons." [405 U.S. 438, 451]   The Court of Appeals
added: "If the prohibition [on distribution to unmarried persons] . . . is to be
taken to mean that the same physician who can prescribe for married
patients does not have sufficient skill to protect the health of patients who
lack a marriage certificate, or who may be currently divorced, it is illogical
to the point of irrationality." 429 F.2d, at 1401. 8 Furthermore, we must join
the Court of Appeals in noting that not all contraceptives are potentially
dangerous. 9 As a result, if the Massachusetts statute were a health
measure, it would not only invidiously discriminate against the unmarried,
but also be overbroad with respect to the married, a fact that the Supreme
Judicial Court itself seems to have conceded in Sturgis v. Attorney General,
358 Mass., at ___, 260 N. E. 2d, at 690, where it noted that "it may well be
that certain contraceptive medication and devices constitute no hazard to
health, in which event it could be argued that the statute swept too broadly
in its prohibition." "In this posture," as the Court of [405 U.S. 438,
452]   Appeals concluded, "it is impossible to think of the statute as intended
as a health measure for the unmarried, and it is almost as difficult to think of
it as so intended even as to the married." 429 F.2d, at 1401.
But if further proof that the Massachusetts statute is not a health measure is
necessary, the argument of Justice Spiegel, who also dissented in
Commonwealth v. Baird, 355 Mass., at 759, 247 N. E. 2d, at 582, is
conclusive: "It is at best a strained conception to say that the Legislature
intended to prevent the distribution of articles `which may have undesirable,
if not dangerous, physical consequences.' If that was the Legislature's goal,
21 is not required" in view of the federal and state laws already regulating
the distribution of harmful drugs. See Federal Food, Drug, and Cosmetic
Act, 503, 52 Stat. 1051, as amended, 21 U.S.C. 353; Mass. Gen. Laws Ann.,
c. 94, 187A, as amended. We conclude, accordingly, that, despite the
statute's superficial earmarks as a health measure, health, on the face of the
statute, may no more reasonably be regarded as its purpose than the
deterrence of premarital sexual relations.
Third. If the Massachusetts statute cannot be upheld as a deterrent to
fornication or as a health measure, may it, nevertheless, be sustained simply
as a prohibition on contraception? The Court of Appeals analysis "led
inevitably to the conclusion that, so far as morals are concerned, it is
contraceptives per se that are considered immoral - to the extent that
Griswold will permit such a declaration." 429 F.2d, at 1401-1402. The Court
of Appeals went on to hold, id., at 1402:
"To say that contraceptives are immoral as such, and are to be
forbidden to unmarried persons who will nevertheless persist in
having intercourse, means that such persons must risk for
themselves an unwanted pregnancy, for the child, illegitimacy,
and [405 U.S. 438, 453]   for society, a possible obligation of
support. Such a view of morality is not only the very mirror image
of sensible legislation; we consider that it conflicts with
fundamental human rights. In the absence of demonstrated harm, we
hold it is beyond the competency of the state."
We need not and do not, however, decide that important question in this
case because, whatever the rights of the individual to access to
contraceptives may be, the rights must be the same for the unmarried and
the married alike.
If under Griswold the distribution of contraceptives to married persons
cannot be prohibited, a ban on distribution to unmarried persons would be
equally impermissible. It is true that in Griswold the right of privacy in
question inhered in the marital relationship. Yet the marital couple is not an
independent entity with a mind and heart of its own, but an association of
two individuals each with a separate intellectual and emotional makeup. If
the right of privacy means anything, it is the right of the individual, married
or single, to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget
a child. See Stanley v. Georgia, 394 U.S. 557 (1969). 10 See also Skinner v.
Oklahoma, [405 U.S. 438, 454]   316 U.S. 535 (1942); Jacobson v.
Massachusetts, 197 U.S. 11, 29 (1905).
On the other hand, if Griswold is no bar to a prohibition on the distribution
of contraceptives, the State could not, consistently with the Equal Protection
Clause, outlaw distribution to unmarried but not to married persons. In each
case the evil, as perceived by the State, would be identical, and the
underinclusion would be invidious. Mr. Justice Jackson, concurring in
Railway Express Agency v. New York, 336 U.S. 106, 112 -113 (1949),
made the point:
"The framers of the Constitution knew, and we should not forget
today, that there is no more effective practical guaranty against
arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority
must be imposed generally. Conversely, nothing opens the door to
arbitrary action so effectively as to allow those officials to pick and
choose only a few to whom they will apply legislation and thus to
escape the political retribution that might be visited upon them if
larger numbers were affected. Courts can take no better measure to
assure that laws will be just than to require that laws be equal in
operation."
Although Mr. Justice Jackson's comments had reference to administrative
regulations, the principle he affirmed has equal application to the legislation
here. We hold that by providing dissimilar treatment for married and
unmarried persons who are similarly situated, Massachusetts [405 U.S. 438,
455]   General Laws Ann., c. 272, 21 and 21A, violate the Equal Protection
Clause. The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in
the consideration or decision of this case.
Footnotes
[ Footnote 1 ] The Court of Appeals below described the recipient of the
foam as "an unmarried adult woman." 429 F.2d 1398, 1399 (1970).
However, there is no evidence in the record about her marital status.
[ Footnote 2 ] Section 21 provides in full:
"Except as provided in section twenty-one A, whoever sells, lends,
gives away, exhibits or offers to sell, lend or give away an
instrument or other article intended to be used for self-abuse, or any
drug, medicine, instrument or article whatever for the prevention of
conception or for causing unlawful abortion, or advertises the same,
or writes, prints, or causes to be written or printed a card, circular,
book, pamphlet, advertisement or notice of any kind stating when,
where, how, of whom or by what means such article can be
purchased or obtained, or manufactures or makes any such article
shall be punished by imprisonment in the state prison for not more
than five years or in jail or the house of correction for not more than
two and one half years or by a fine of not less than one hundred nor
more than one thousand dollars."
Section 21A provides in full:
"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles to
any married person presenting a prescription from a registered
physician.
"A public health agency, a registered nurse, or a maternity health
clinic operated by or in an accredited hospital may furnish
information to any married person as to where professional advice
regarding such drugs or articles may be lawfully obtained.
"This section shall not be construed as affecting the provisions of
sections twenty and twenty-one relative to prohibition of advertising
of drugs or articles intended for the prevention of pregnancy or
conception; nor shall this section be construed so as to permit the
sale or dispensing of such drugs or articles by means of any vending
machine or similar device."
[ Footnote 3 ] Appellant suggests that the purpose of the Massachusetts
statute is to promote marital fidelity as well as to discourage premarital sex.
Under 21A, however, contraceptives may be made available to married
persons without regard to whether they are living with their spouses or the
uses to which the contraceptives are to be put. Plainly the legislation has no
deterrent effect on extramarital sexual relations.
[ Footnote 4 ] This factor decisively distinguishes Tileston v. Ullman, 318
U.S. 44 (1943), where the Court held that a physician lacked standing to
bring an action for declaratory relief to challenge, on behalf of his patients,
the Connecticut law prohibiting the use of contraceptives. The patients were
fully able to bring their own action. Underlying the decision was the concern
that "the standards of `case or controversy' in Article III of the Constitution
[not] become blurred," Griswold v. Connecticut, 381 U.S. 479, 481 (1965) -
a problem that is not at all involved in this case.
[ Footnote 5 ] Indeed, in First Amendment cases we have relaxed our rules
of standing without regard to the relationship between the litigant and those
whose rights he seeks to assert precisely because application of those rules
would have an intolerable, inhibitory effect on freedom of speech. E. g.,
Thornhill v. Alabama, 310 U.S. 88, 97 -98 (1940). See United States v.
Raines, 362 U.S. 17, 22 (1960).
[ Footnote 6 ] See also Prince v. Massachusetts, 321 U.S. 158 (1944), where
a custodian, in violation of state law, furnished a child with magazines to
distribute on the streets. The Court there implicitly held that the custodian
had standing to assert alleged freedom of religion and equal protection rights
of the child that were threatened in the very litigation before the Court and
that the child had no effective way of asserting herself.
[ Footnote 7 ] Of course, if we were to conclude that the Massachusetts
statute impinges upon fundamental freedoms under Griswold, the statutory
classification would have to be not merely rationally related to a valid public
purpose but necessary to the achievement of a compelling state interest. E.
g., Shapiro v. Thompson, 394 U.S. 618 (1969); Loving v. Virginia, 388 U.S.
1 (1967). But just as in Reed v. Reed, 404 U.S. 71 (1971), we do not have to
address the statute's validity under that test because the law fails to satisfy
even the more lenient equal protection standard.
[ Footnote 8 ] Appellant insists that the unmarried have no right to engage
in sexual intercourse and hence no health interest in contraception that needs
to be served. The short answer to this contention is that the same devices the
distribution of which the State purports to regulate when their asserted
purpose is to forestall pregnancy are available without any controls
whatsoever so long as their asserted purpose is to prevent the spread of
disease. It is inconceivable that the need for health controls varies with the
purpose for which the contraceptive is to be used when the physical act in
all cases is one and the same.
[ Footnote 9 ] The Court of Appeals stated, 429 F.2d, at 1401:
"[W]e must take notice that not all contraceptive devices risk
`undesirable . . . [or] dangerous physical consequences.' It is 200
years since Casanova recorded the ubiquitous article which, perhaps
because of the birthplace of its inventor, he termed a `redingote
anglais.' The reputed nationality of the condom has now changed,
but we have never heard criticism of it on the side of health. We
cannot think that the legislature was unaware of it, or could have
thought that it needed a medical prescription. We believe the same
could be said of certain other products."
[ Footnote 10 ] In Stanley, 394 U.S., at 564 , the Court stated:
"[A]lso fundamental is the right to be free, except in very limited
circumstances, from unwanted governmental intrusions into one's
privacy.
"`The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the
Government, [405 U.S. 438, 454]   the right to be let alone - the
most comprehensive of rights and the right most valued by civilized
man.' Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting).
"See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357
U.S. 449, 462 (1958)."
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, there is for me a narrower ground for
affirming the Court of Appeals. This to me is a simple First Amendment
case, that amendment being applicable to the States by reason of the
Fourteenth. Stromberg v. California, 283 U.S. 359 .
Under no stretch of the law as presently stated could Massachusetts require
a license for those who desire to lecture on planned parenthood,
contraceptives, the rights of women, birth control, or any allied subject, or
place a tax on that privilege. As to license taxes on First Amendment rights
we said in Murdock v. Pennsylvania, 319 U.S. 105, 115 :
"A license tax certainly does not acquire constitutional validity
because it classifies the privileges protected by the First
Amendment along with the wares and merchandise of hucksters and
peddlers and treats them all alike. Such equality in treatment does
not save the ordinance. Freedom of press, freedom of speech,
freedom of religion are in a preferred position."
We held in Thomas v. Collins, 323 U.S. 516 , that a person speaking at a
labor union rally could not be required to register or obtain a license:
"As a matter of principle a requirement of registration in order to
make a public speech would seem generally incompatible with an
exercise of the rights [405 U.S. 438, 456]   of free speech and free
assembly. Lawful public assemblies, involving no element of grave
and immediate danger to an interest the State is entitled to protect,
are not instruments of harm which require previous identification of
the speakers. And the right either of workmen or of unions under
these conditions to assemble and discuss their own affairs is as fully
protected by the Constitution as the right of businessmen, farmers,
educators, political party members or others to assemble and discuss
their affairs and to enlist the support of others.
.....
". . . If one who solicits support for the cause of labor may be
required to register as a condition to the exercise of his right to
make a public speech, so may he who seeks to rally support for any
social, business, religious or political cause. We think a requirement
that one must register before he undertakes to make a public speech
to enlist support for a lawful movement is quite incompatible with
the requirements of the First Amendment." Id., at 539, 540.
Baird addressed an audience of students and faculty at Boston University on
the subject of birth control and overpopulation. His address was
approximately one hour in length and consisted of a discussion of various
contraceptive devices displayed by means of diagrams on two demonstration
boards, as well as a display of contraceptive devices in their original
packages. In addition, Baird spoke of the respective merits of various
contraceptive devices; overpopulation in the world; crises throughout the
world due to overpopulation; the large number of abortions performed on
unwed mothers; and quack abortionists and the potential harm to women
resulting from abortions performed by quack abortionists. Baird also urged
members of the audience to petition the Massachusetts Legislature and to
make known their feelings [405 U.S. 438, 457]   with regard to birth control
laws in order to bring about a change in the laws. At the close of the address
Baird invited members of the audience to come to the stage and help
themselves to the contraceptive articles. We do not know how many
accepted Baird's invitation. We only know that Baird personally handed one
woman a package of Emko Vaginal Foam. He was then arrested and
indicted (1) for exhibiting contraceptive devices and (2) for giving one such
device away. The conviction for the first offense was reversed, the Supreme
Judicial Court of Massachusetts holding that the display of the articles was
essential to a graphic representation of the lecture. But the conviction for the
giving away of one article was sustained. 355 Mass. 746, 247 N. E. 2d 574.
The case reaches us by federal habeas corpus.
Had Baird not "given away" a sample of one of the devices whose use he
advocated, there could be no question about the protection afforded him by
the First Amendment. A State may not "contract the spectrum of available
knowledge." Griswold v. Connecticut, 381 U.S. 479, 482 . See also Thomas
v. Collins, supra; Pierce v. Society of Sisters, 268 U.S. 510 ; Meyer v.
Nebraska, 262 U.S. 390 . However noxious Baird's ideas might have been to
the authorities, the freedom to learn about them, fully to comprehend their
scope and portent, and to weigh them against the tenets of the "conventional
wisdom," may not be abridged. Terminiello v. Chicago, 337 U.S. 1 . Our
system of government requires that we have faith in the ability of the
individual to decide wisely, if only he is fully apprised of the merits of a
controversy.
"Freedom of discussion, if it would fulfill its historic function in this
nation, must embrace all issues about which information is needed
or appropriate to enable the members of society to cope with the
exigencies of their period." Thornhill v. Alabama, 310 U.S. 88,
102 .
The teachings of Baird and those of Galileo might be [405 U.S. 438,
458]   of a different order; but the suppression of either is equally repugnant.
As Milton said in the Areopagitica, "Give me the liberty to know, to utter,
and to argue freely according to conscience, above all liberties."
It is said that only Baird's conduct is involved and United States v. O'Brien,
391 U.S. 367 , is cited. That case involved a registrant under the Selective
Service Act burning his Selective Service draft card. When prosecuted for
that act, he defended his conduct as "symbolic speech." The Court held it
was not.
Whatever may be thought of that decision on the merits, 1 O'Brien is not
controlling here. The distinction between "speech" and "conduct" is a valid
one, insofar as it helps to determine in a particular case whether the purpose
of the activity was to aid in the communication of ideas, and whether the
form of the communication so interferes with the rights of others that
reasonable regulations may be imposed. 2 See Public Utilities Comm'n v.
Pollak, 343 U.S. 451, 467 (DOUGLAS, J., dissenting). [405 U.S. 438,
459]   Thus, excessive noise might well be "conduct" - a form of pollution -
which can be made subject to precise, narrowly drawn regulations. See
Adderley v. Florida, 385 U.S. 39, 54 (DOUGLAS, J., dissenting). But "this
Court has repeatedly stated, [First Amendment] rights are not confined to
verbal expression. They embrace appropriate types of action . . . ." Brown v.
Louisiana, 383 U.S. 131, 141 -142.
Baird gave an hour's lecture on birth control and as an aid to understanding
the ideas which he was propagating he handed out one sample of one of the
devices whose use he was endorsing. A person giving a lecture on coyote-
getters would certainly improve his teaching technique if he passed one out
to the audience; and he would be protected in doing so unless of course the
device was loaded and ready to explode, killing or injuring people. The
same holds true in my mind for mousetraps, spray guns, or any other article
not dangerous per se on which speakers give educational lectures.
It is irrelevant to the application of these principles that Baird went beyond
the giving of information about birth control and advocated the use of
contraceptive articles. The First Amendment protects the opportunity to
persuade to action whether that action be unwise or immoral, or whether the
speech incites to action. See, e. g., Brandenburg v. Ohio, 395 U.S. 444 ;
Edwards v. South Carolina, 372 U.S. 229 ; Terminiello v. Chicago, supra.
In this case there was not even incitement to action. 3 There is no evidence
or finding that Baird intended that the young lady take the foam home with
her when he handed it to her or that she would not have examined the [405
U.S. 438, 460]   article and then returned it to Baird, had he not been placed
under arrest immediately upon handing the article over. 4  
First Amendment rights are not limited to verbal expression. 5 The right to
petition often involves the right to walk. The right of assembly may mean
pushing or jostling. Picketing involves physical activity as well as a display
of a sign. A sit-in can be a quiet, dignified protest that has First Amendment
protection even though no speech is involved, as we held in Brown v.
Louisiana, supra. Putting contraceptives on display is certainly an aid to
speech and discussion. Handing an article under discussion to a member of
the audience is a technique known to all teachers and is commonly used. A
handout may be on such a scale as to smack of a vendor's marketing
scheme. But passing one article to an audience is merely a projection of the
visual aid and should be a permissible adjunct of free speech. Baird was not
making a prescription nor purporting to give medical advice. Handing out
the article was not even a suggestion that the lady use it. At most it
suggested that she become familiar with the product line.
I do not see how we can have a Society of the Dialogue, which the First
Amendment envisages, if time-honored teaching techniques are barred to
those who give educational lectures.
[ Footnote 1 ] I have earlier expressed my reasons for believing that the
O'Brien decision was not consistent with First Amendment rights. See
Brandenburg v. Ohio, 395 U.S. 444, 455 (concurring opinion).
[ Footnote 2 ] In Giboney v. Empire Storage Co., 336 U.S. 490 , the Court
upheld a state court injunction against peaceful picketing carried on in
violation of a state "anti-restraint-of-trade" law. Giboney, however, is easily
distinguished from the present case. Under the circumstances there present,
"There was clear danger, imminent and immediate, that unless restrained,
appellants would succeed in making [state antitrust] policy a dead letter . . . .
They were exercising their economic power together with that of their allies
to compel Empire to abide by union rather than by state regulation of trade."
Id., at 503 (footnote omitted; emphasis supplied). There is no such coercion
in the instant case nor is there a similar frustration of state policy, see text at
n. 4, infra. For an analysis of the state policies underlying the Massachusetts
statute which Baird was convicted of having violated, see Dienes, The
Progeny of Comstockery - Birth Control Laws Return to Court, 21 Am. U.
L. Rev. 1, 3-44 (1971).
[ Footnote 3 ] Even under the restrictive meaning which the Court has given
the First Amendment, as applied to the States by the Fourteenth, advocacy
of law violation is permissible "except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio, supra, n. 1, at 447.
[ Footnote 4 ] This factor alone would seem to distinguish O'Brien, supra,
as that case turned on the Court's judgment that O'Brien's "conduct"
frustrated a substantial governmental interest.
[ Footnote 5 ] For a partial collection of cases involving action that comes
under First Amendment protection see Brandenburg v. Ohio, supra, n. 1, at
455-456 (concurring opinion).
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN joins,
concurring in the result.
In Griswold v. Connecticut, 381 U.S. 479 (1965), we reversed criminal
convictions for advising married persons [405 U.S. 438, 461]   with respect
to the use of contraceptives. As there applied, the Connecticut law, which
forbade using contraceptives or giving advice on the subject, unduly invaded
a zone of marital privacy protected by the Bill of Rights. The Connecticut
law did not regulate the manufacture or sale of such products and we
expressly left open any question concerning the permissible scope of such
legislation. 381 U.S., at 485 .
Chapter 272, 21, of the Massachusetts General Laws makes it a criminal
offense to distribute, sell, or give away any drug, medicine, or article for the
prevention of conception. Section 21A excepts from this prohibition
registered physicians who prescribe for and administer such articles to
married persons and registered pharmacists who dispense on medical
prescription. 1   [405 U.S. 438, 462]   Baird, however, was found guilty of giving away vaginal foam. Inquiry into
Appellee Baird was indicted for giving away Emko Vaginal Foam, a
"medicine and article for the prevention of conception . . . ." 2 The State did
not purport to charge or convict Baird for distributing to an unmarried
person. No proof was offered as to the marital status of the recipient. The
gravamen of the offense charged was that Baird had no license and therefore
no authority to distribute to anyone. As the Supreme Judicial Court of
Massachusetts noted, the constitutional validity of Baird's conviction rested
upon his lack of status as a "distributor and not . . . the marital status of the
recipient." Commonwealth v. Baird, 355 Mass. 746, 753, 247 N. E. 2d 574,
578 (1969). The Federal District Court was of the same view. 3   [405 U.S.
438, 463]  
I assume that a State's interest in the health of its citizens empowers it to
restrict to medical channels the distribution of products whose use should be
accompanied by medical advice. I also do not doubt that various
contraceptive medicines and articles are properly available only on
prescription, and I therefore have no difficulty with the Massachusetts
court's characterization of the statute at issue here as expressing "a
legitimate interest in preventing the distribution of articles designed to
prevent conception which may have undesirable, if not dangerous, physical
consequences." Id., at 753, 247 N. E. 2d, at 578. Had Baird distributed a
supply of the so-called "pill," I would sustain his conviction under this
statute. 4 Requiring a prescription to obtain potentially dangerous
contraceptive material may place a substantial burden upon the right
recognized in Griswold, but that burden is justified by a strong state interest
and does not, as did the statute at issue in Griswold, sweep unnecessarily
broadly or seek "to achieve its goals by means having a maximum
destructive impact upon" a protected relationship. Griswold v. Connecticut,
381 U.S., at 485 .
the validity of this conviction does not come to an end merely because some
contraceptives are harmful and their distribution may be restricted. Our
general reluctance to question a State's judgment on matters of public health
must give way where, as here, the restriction at issue burdens the
constitutional [405 U.S. 438, 464]   rights of married persons to use
contraceptives. In these circumstances we may not accept on faith the State's
classification of a particular contraceptive as dangerous to health. Due
regard for protecting constitutional rights requires that the record contain
evidence that a restriction on distribution of vaginal foam is essential to
achieve the statutory purpose, or the relevant facts concerning the product
must be such as to fall within the range of judicial notice.
Neither requirement is met here. Nothing in the record even suggests that
the distribution of vaginal foam should be accompanied by medical advice
in order to protect the user's health. Nor does the opinion of the
Massachusetts court or the State's brief filed here marshal facts
demonstrating that the hazards of using vaginal foam are common
knowledge or so incontrovertible that they may be noticed judicially. On the
contrary, the State acknowledges that Emko is a product widely available
without prescription. Given Griswold v. Connecticut, supra, and absent
proof of the probable hazards of using vaginal foam, we could not sustain
appellee's conviction had it been for selling or giving away foam to a
married person. Just as in Griswold, where the right of married persons to
use contraceptives was "diluted or adversely affected" by permitting a
conviction for giving advice as to its exercise, id., at 481, so here, to
sanction a medical restriction upon distribution of a contraceptive not
proved hazardous to health would impair the exercise of the constitutional
right.
That Baird could not be convicted for distributing Emko to a married person
disposes of this case. Assuming, arguendo, that the result would be
otherwise had the recipient been unmarried, nothing has been placed in the
record to indicate her marital status. The State has maintained that marital
status is irrelevant because an unlicensed person cannot legally dispense
vaginal foam [405 U.S. 438, 465]   either to married or unmarried persons.
This approach is plainly erroneous and requires the reversal of Baird's
conviction; for on the facts of this case, it deprives us of knowing whether
Baird was in fact convicted for making a constitutionally protected
distribution of Emko to a married person.
The principle established in Stromberg v. California, 283 U.S. 359 (1931),
and consistently adhered to is that a conviction cannot stand where the
"record fail[s] to prove that the conviction was not founded upon a theory
which could not constitutionally support a verdict." Street v. New York, 394
U.S. 576, 586 (1969). To uphold a conviction even "though we cannot know
that it did not rest on the invalid constitutional ground . . . would be to
countenance a procedure which would cause a serious impairment of
constitutional rights." Williams v. North Carolina, 317 U.S. 287, 292
(1942).
Because this case can be disposed of on the basis of settled constitutional
doctrine, I perceive no reason for reaching the novel constitutional question
whether a State may restrict or forbid the distribution of contraceptives to
the unmarried. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288,
345 -348 (1936) (Brandeis, J., concurring).
[ Footnote 1 ] Section 21 provides as follows:
"Except as provided in section twenty-one A, whoever sells, lends,
gives away, exhibits or offers to sell, lend or give away an
instrument or other article intended to be used for self-abuse, or any
drug, medicine, instrument or article whatever for the prevention of
conception or for causing unlawful abortion, or advertises the same,
or writes, prints, or causes to be written or printed a card, circular,
book, pamphlet, advertisement or notice of any kind stating when,
where, how, of whom or by what means such article can be
purchased or obtained, or manufactures or makes any such article
shall be punished by imprisonment in the state prison for not more
than five years or in jail or the house of correction for not more than
two and one half years or by a fine of not less than one hundred nor
more than one thousand dollars."
Section 21A makes these exceptions:
"A registered physician may administer to or prescribe for any
married person drugs or articles intended for the prevention of
pregnancy or conception. A registered pharmacist actually engaged
in the business of pharmacy may furnish such drugs or articles to
any married person presenting a prescription from a registered
physician.
"A public health agency, a registered nurse, or a maternity health
clinic operated by or in an accredited hospital may furnish
information [405 U.S. 438, 462]   to any married person as to where
professional advice regarding such drugs or articles may be lawfully
obtained.
"This section shall not be construed as affecting the provisions of
sections twenty and twenty-one relative to prohibition of advertising
of drugs or articles intended for the prevention of pregnancy or
conception; nor shall this section be construed so as to permit the
sale or dispensing of such drugs or articles by means of any vending
machine or similar device."
[ Footnote 2 ] The indictment states:
 "The Jurors for the Commonwealth of Massachusetts on their oath
present that William R. Baird, on the sixth day of April, in the year
of our Lord one thousand nine hundred and sixty-seven, did
unlawfully give away a certain medicine and article for the
prevention of conception, to wit: Emko Vaginal Foam, the giving
away of the said medicine and article by the said William R. Baird
not being in accordance with, or authorized or permitted by, the
provisions of Section 21A of Chapter 272, of the General Laws of
the said Commonwealth."
[ Footnote 3 ] "Had 21A authorized registered physicians to administer or
prescribe contraceptives for unmarried as well as for married persons, the
legal position of the petitioner would not have been in any way altered. Not
being a physician he would still have been prohibited by 21 from `giving
away' the contraceptive." 310 F. Supp. 951, 954 (Mass. 1970).
[ Footnote 4 ] The Food and Drug Administration has made a finding that
birth control pills pose possible hazards to health. It therefore restricts
distribution and receipt of such products in interstate commerce to properly
labeled packages that must be sold pursuant to a prescription. 21 CFR
130.45. A violation of this law is punishable by imprisonment for one year,
a fine of not more than $10,000, or both. 21 U.S.C. 331, 333.
MR. CHIEF JUSTICE BURGER, dissenting.
The judgment of the Supreme Judicial Court of Massachusetts in sustaining
appellee's conviction for dispensing medicinal material without a license
seems eminently correct to me and I would not disturb it. It is undisputed
that appellee is not a physician or pharmacist and was prohibited under
Massachusetts law from dispensing contraceptives to anyone, regardless of
marital status. To my mind the validity of this restriction on dispensing
medicinal substances is the only issue before the Court, [405 U.S. 438,
466]   and appellee has no standing to challenge that part of the statute
restricting the persons to whom contraceptives are available. There is no
need to labor this point, however, for everyone seems to agree that if
Massachusetts has validly required, as a health measure, that all
contraceptives be dispensed by a physician or pursuant to a physician's
prescription, then the statutory distinction based on marital status has no
bearing on this case. United States v. Raines, 362 U.S. 17, 21 (1960).
The opinion of the Court today brushes aside appellee's status as an
unlicensed layman by concluding that the Massachusetts Legislature was not
really concerned with the protection of health when it passed this statute.
MR. JUSTICE WHITE acknowledges the statutory concern with the
protection of health, but finds the restriction on distributors overly broad
because the State has failed to adduce facts showing the health hazards of
the particular substance dispensed by appellee as distinguished from other
contraceptives. MR. JUSTICE DOUGLAS' concurring opinion does not
directly challenge the power of Massachusetts to prohibit laymen from
dispensing contraceptives, but considers that appellee rather than dispensing
the substance was resorting to a "time-honored teaching technique" by
utilizing a "visual aid" as an adjunct to his protected speech. I am puzzled by
this third characterization of the case. If the suggestion is that appellee was
merely displaying the contraceptive material without relinquishing his
ownership of it, then the argument must be that the prosecution failed to
prove that appellee had "given away" the contraceptive material. But
appellee does not challenge the sufficiency of the evidence, and himself
summarizes the record as showing that "at the close of his lecture he invited
members of the audience . . . to come and help themselves." On the other
hand, if the concurring opinion means that the First Amendment protects the
distribution [405 U.S. 438, 467]   of all articles "not dangerous per se" when
the distribution is coupled with some form of speech, then I must confess
that I have misread certain cases in the area. See, e. g., United States v.
O'Brien, 391 U.S. 367, 376 (1968); Cox v. Louisiana, 379 U.S. 536, 555
(1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949).
My disagreement with the opinion of the Court and that of MR. JUSTICE
WHITE goes far beyond mere puzzlement, however, for these opinions
seriously invade the constitutional prerogatives of the States and regrettably
hark back to the heyday of substantive due process.
In affirming appellee's conviction, the highest tribunal in Massachusetts held
that the statutory requirement that contraceptives be dispensed only through
medical channels served the legitimate interest of the State in protecting the
health of its citizens. The Court today blithely hurdles this authoritative state
pronouncement and concludes that the statute has no such purpose. Three
basic arguments are advanced: First, since the distribution of contraceptives
was prohibited as a moral matter in Massachusetts prior to 1966, it is
impossible to believe that the legislature was concerned with health when it
lifted the complete ban but insisted on medical supervision. I fail to see why
the historical predominance of an unacceptable legislative purpose makes
incredible the emergence of a new and valid one. 1 See McGowan [405
U.S. 438, 468]   v. Maryland, 366 U.S. 420, 445 -449 (1961). The second
argument, finding its origin in a dissenting opinion in the Supreme Judicial
Court of Massachusetts, rejects a health purpose because, "[i]f there is need
to have a physician prescribe . . . contraceptives, that need is as great for
unmarried persons as for married persons." 355 Mass. 746, 758, 247 N. E.
2d 574, 581. This argument confuses the validity of the restriction on
distributors with the validity of the further restriction on distributees, a part
of the statute not properly before the Court. Assuming the legislature too
broadly restricted the class of persons who could obtain contraceptives, it
hardly follows that it saw no need to protect the health of all persons to
whom they are made available. Third, the Court sees no health purpose
underlying the restriction on distributors because other state and federal
laws regulate the distribution of harmful drugs. I know of no rule that all
enactments relating to a particular purpose must be neatly consolidated in
one package in the statute books for, if so, the United States Code will not
pass muster. I am unable to draw any inference as to legislative purpose
from the fact that the restriction on dispensing contraceptives was not
codified with other statutory provisions regulating the distribution of
medicinal substances. And the existence of nonconflicting, nonpre-emptive
federal laws is simply without significance in judging the validity or purpose
of a state law on the same subject matter.
It is possible, of course, that some members of the Massachusetts
Legislature desired contraceptives to be dispensed only through medical
channels in order to minimize their use, rather than to protect the health of
their users, but I do not think it is the proper function of this Court to
dismiss as dubious a state court's explication of a state statute absent
overwhelming and irrefutable reasons for doing so. [405 U.S. 438, 469]  
MR. JUSTICE WHITE, while acknowledging a valid legislative purpose of
protecting health, concludes that the State lacks power to regulate the
distribution of the contraceptive involved in this case as a means of
protecting health. 2 The opinion grants that appellee's conviction would be
valid if he had given away a potentially harmful substance, but rejects the
State's placing this particular contraceptive in that category. So far as I am
aware, this Court has never before challenged the police power of a State to
protect the public from the risks of possibly spurious and deleterious
substances sold within its borders. Moreover, a statutory classification is not
invalid
"simply because some innocent articles or transactions may be
found within the proscribed class. The inquiry must be whether,
considering the end in view, the statute passes the bounds of reason
and assumes the character of a merely arbitrary fiat." Purity Extract
& Tonic Co. v. Lynch, 226 U.S. 192, 204 (1912).
But since the Massachusetts statute seeks to protect health by regulating
contraceptives, the opinion invokes Griswold v. Connecticut, 381 U.S. 479
(1965), and puts the statutory classification to an unprecedented test: either
the record must contain evidence supporting the classification or the health
hazards of the particular contraceptive must be judicially noticeable. This is
indeed a novel constitutional doctrine and not surprisingly no authority is
cited for it.
Since the potential harmfulness of this particular medicinal substance has
never been placed in issue in the [405 U.S. 438, 470]   state or federal
courts, the State can hardly be faulted for its failure to build a record on this
point. And it totally mystifies me why, in the absence of some evidence in
the record, the factual underpinnings of the statutory classification must be
"incontrovertible" or a matter of "common knowledge."
The actual hazards of introducing a particular foreign substance into the
human body are frequently controverted, and I cannot believe that unanimity
of expert opinion is a prerequisite to a State's exercise of its police power,
no matter what the subject matter of the regulation. Even assuming no
present dispute among medical authorities, we cannot ignore that it has
become commonplace for a drug or food additive to be universally regarded
as harmless on one day and to be condemned as perilous on the next. It is
inappropriate for this Court to overrule a legislative classification by relying
on the present consensus among leading authorities. The commands of the
Constitution cannot fluctuate with the shifting tides of scientific opinion.
Even if it were conclusively established once and for all that the product
dispensed by appellee is not actually or potentially dangerous in the somatic
sense, I would still be unable to agree that the restriction on dispensing it
falls outside the State's power to regulate in the area of health. The choice of
a means of birth control, although a highly personal matter, is also a health
matter in a very real sense, and I see nothing arbitrary in a requirement of
medical supervision. 3 It is generally acknowledged that contraceptives
vary in degree of effectiveness [405 U.S. 438, 471]   and potential
harmfulness. 4 There may be compelling health reasons for certain women
to choose the most effective means of birth control available, no matter how
harmless the less effective alternatives. 5 Others might be advised not to
use a highly effective means of contraception because of their peculiar
susceptibility to an adverse side effect. 6 Moreover, there may be
information known to the medical profession that a particular brand of
contraceptive is to be preferred or avoided, or that it has not been adequately
tested. Nonetheless, the concurring opinion would hold, as a constitutional
matter, that a State must allow someone without medical training the same
power to distribute this medicinal substance as is enjoyed by a physician.
It is revealing, I think, that those portions of the majority and concurring
opinions rejecting the statutory limitation on distributors rely on no
particular provision of the Constitution. I see nothing in the Fourteenth
Amendment or any other part of the Constitution [405 U.S. 438, 472]   that
even vaguely suggests that these medicinal forms of contraceptives must be
available in the open market. I do not challenge Griswold v. Connecticut,
supra, despite its tenuous moorings to the text of the Constitution, but I
cannot view it as controlling authority for this case. The Court was there
confronted with a statute flatly prohibiting the use of contraceptives, not one
regulating their distribution. I simply cannot believe that the limitation on
the class of lawful distributors has significantly impaired the right to use
contraceptives in Massachusetts. By relying on Griswold in the present
context, the Court has passed beyond the penumbras of the specific
guarantees into the uncircumscribed area of personal predilections.
The need for dissemination of information on birth control is not impinged
in the slightest by limiting the distribution of medicinal substances to
medical and pharmaceutical channels as Massachusetts has done by statute.
The appellee has succeeded, it seems, in cloaking his activities in some new
permutation of the First Amendment although his conviction rests in fact
and law on dispensing a medicinal substance without a license. I am
constrained to suggest that if the Constitution can be strained to invalidate
the Massachusetts statute underlying appellee's conviction, we could quite
as well employ it for the protection of a "curbstone quack," reminiscent of
the "medicine man" of times past, who attracted a crowd of the curious with
a soapbox lecture and then plied them with "free samples" of some
unproved remedy. Massachusetts presumably outlawed such activities long
ago, but today's holding seems to invite their return.
[ Footnote 1 ] The Court places some reliance on the opinion of the
Supreme Judicial Court of Massachusetts in Sturgis v. Attorney General,
358 Mass. ___, 260 N. E. 2d 687 (1970), to show that 21A is intended to
regulate morals rather than public health. In Sturgis the state court rejected a
challenge by a group of physicians to that part of the statute prohibiting the
distribution of contraceptives to unmarried women. The court accepted the
State's interest in "regulating the private sexual lives of single persons," that
interest being expressed in the restriction on distributees. Id., at ___, 260 N.
E. 2d, at 690. The purpose of the restriction on distributors was not in issue.
[ Footnote 4 ] See U.S. Commission on Population Growth and the
American Future, Population and the American Future, pt. II, pp. 38-39
(Mar. 16, 1972); Manual of Family Planning, supra, at 268-274, 316, 320,
342, 346; Jaffe, Toward the Reduction of Unwanted Pregnancy, 174 Science
119, 121 (Oct. 8, 1971); G. Hardin, Birth Control 128 (1970); E. Havemann,
Birth Control (1967). The contraceptive substance dispensed by appellee,
vaginal foam, is thought to be between 70% and 80% effective. See Jaffe,
supra, at 121; Dingle & Tietze, Comparative Study of Three Contraceptive
Methods, 85 Amer. J. Obst. & Gyn. 1012, 1021 (1963). The birth control
pill, by contrast, is thought to be better than 99% effective. See Havemann,
Birth Control, supra.
[ Footnote 5 ] See Perkin, Assessment of Reproductive Risk in
Nonpregnant Women - A Guide to Establishing Priorities for Contraceptive
Care, 101 Amer. J. Obst. & Gyn. 709 (1968).
[ Footnote 6 ] See Manual of Family Planning, supra, at 301, 332-333, 336-
340.

[ Footnote 2 ] The opinion of the Court states in passing that if the
restriction on distributors were in fact intended as a health measure, it would
be overly broad. Since the Court does not develop this argument in detail,
my response is addressed solely to the reasoning in the opinion of MR.
JUSTICE WHITE, concurring in the result.

[ Footnote 3 ] For general discussions of the need for medical supervision
before choosing a means of birth control, see Manual of Family Planning
and Contraceptive Practice 47-53 (M. Calderone ed. 1970); Advanced
Concepts in Contraception 22-24 (F. Hoffman & R. Kleinman ed. 1968).

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 195540               March 13, 2013
GOLDENWAY MERCHANDISING CORPORATION, Petitioner,
vs.
EQUITABLE PCI BANK, Respondent.
DECISION
VILLARAMA, JR., J.:
Before the Court is a petition for review on certiorari which seeks to reverse
and set aside the Decision1 dated November 19, 2010 and Resolution2 dated
January 31, 2011 of the Court of Appeals (CA) in CA-G.R. CV No. 91120.
The CA affirmed the Decision3 dated January 8, 2007 of the Regional Trial
Court (RTC) of- Valenzuela City, Branch 171 dismissing the complaint in
Civil Case No. 295-V -01.
The facts are undisputed.
On November 29, 1985, Goldenway Merchandising Corporation (petitioner)
executed a Real Estate Mortgage in favor of Equitable PCI Bank
(respondent) over its real properties situated in Valenzuela, Bulacan (now
Valenzuela City) and covered by Transfer Certificate of Title (TCT) Nos. T-
152630, T-151655 and T-214528 of the Registry of Deeds for the Province
of Bulacan. The mortgage secured the Two Million Pesos (₱2,000,000.00)
loan granted by respondent to petitioner and was duly registered. 4
As petitioner failed to settle its loan obligation, respondent extrajudicially
foreclosed the mortgage on December 13, 2000. During the public auction,
the mortgaged properties were sold for ₱3,500,000.00 to respondent.
Accordingly, a Certificate of Sale was issued to respondent on January 26,
2001. On February 16, 2001, the Certificate of Sale was registered and
inscribed on TCT Nos. T-152630, T-151655 and T-214528.5
In a letter dated March 8, 2001, petitioner’s counsel offered to redeem the
foreclosed properties by tendering a check in the amount of ₱3,500,000.00.
On March 12, 2001, petitioner’s counsel met with respondent’s counsel
reiterating petitioner’s intention to exercise the right of
redemption.6 However, petitioner was told that such redemption is no longer
possible because the certificate of sale had already been registered.
Petitioner also verified with the Registry of Deeds that title to the foreclosed
properties had already been consolidated in favor of respondent and that
new certificates of title were issued in the name of respondent on March 9,
2001.
On December 7, 2001, petitioner filed a complaint 7 for specific performance
and damages against the respondent, asserting that it is the one-year period
of redemption under Act No. 3135 which should apply and not the shorter
redemption period provided in Republic Act (R.A.) No. 8791. Petitioner
argued that applying Section 47 of R.A. 8791 to the real estate mortgage
executed in 1985 would result in the impairment of obligation of contracts
and violation of the equal protection clause under the Constitution.
Additionally, petitioner faulted the respondent for allegedly failing to
furnish it and the Office of the Clerk of Court, RTC of Valenzuela City with
a Statement of Account as directed in the Certificate of Sale, due to which
petitioner was not apprised of the assessment and fees incurred by
respondent, thus depriving petitioner of the opportunity to exercise its right
of redemption prior to the registration of the certificate of sale.
In its Answer with Counterclaim, 8 respondent pointed out that petitioner
cannot claim that it was unaware of the redemption price which is clearly
provided in Section 47 of R.A. No. 8791, and that petitioner had all the
opportune time to redeem the foreclosed properties from the time it received
the letter of demand and the notice of sale before the registration of the
certificate of sale. As to the check payment tendered by petitioner,
respondent said that even assuming arguendo such redemption was timely
made, it was not for the amount as required by law.
On January 8, 2007, the trial court rendered its decision dismissing the
complaint as well as the counterclaim. It noted that the issue of
constitutionality of Sec. 47 of R.A. No. 8791 was never raised by the
petitioner during the pre-trial and the trial. Aside from the fact that
petitioner’s attempt to redeem was already late, there was no valid
redemption made because Atty. Judy Ann Abat-Vera who talked to Atty.
Joseph E. Mabilog of the Legal Division of respondent bank, was not
properly authorized by petitioner’s Board of Directors to transact for and in
its behalf; it was only a certain Chan Guan Pue, the alleged President of
petitioner corporation, who gave instruction to Atty. Abat-Vera to redeem
the foreclosed properties.9
Aggrieved, petitioner appealed to the CA which affirmed the trial court’s
decision. According to the CA, petitioner failed to justify why Section 47 of
R.A. No. 8791 should be declared unconstitutional. Furthermore, the
appellate court concluded that a reading of Section 47 plainly reveals the
intention to shorten the period of redemption for juridical persons and that
the foreclosure of the mortgaged properties in this case when R.A. No. 8791
was already in effect clearly falls within the purview of the said provision. 10
Petitioner’s motion for reconsideration was likewise denied by the CA.
In the present petition, it is contended that Section 47 of R.A. No. 8791 is
inapplicable considering that the contracting parties expressly and
categorically agreed that the foreclosure of the real estate mortgage shall be
in accordance with Act No. 3135. Citing Co v. Philippine National
Bank11 petitioner contended that the right of redemption is part and parcel of
the Deed of Real Estate Mortgage itself and attaches thereto upon its
execution, a vested right flowing out of and made dependent upon the law
governing the contract of mortgage and not on the mortgagee’s act of
extrajudicially foreclosing the mortgaged properties. This Court thus held in
said case that "Under the terms of the mortgage contract, the terms and
conditions under which redemption may be exercised are deemed part and
parcel thereof whether the same be merely conventional or imposed by law."
Petitioner then argues that applying Section 47 of R.A. No. 8791 to the
present case would be a substantial impairment of its vested right of
redemption under the real estate mortgage contract. Such impairment would
be violative of the constitutional proscription against impairment of
obligations of contract, a patent derogation of petitioner’s vested right and
clearly changes the intention of the contracting parties. Moreover, citing this
Court’s ruling in Rural Bank of Davao City, Inc. v. Court of
Appeals12 where it was held that "Section 119 prevails over statutes which
provide for a shorter period of redemption in extrajudicial foreclosure
sales", and in Sulit
v. Court of Appeals,13 petitioner stresses that it has always been the policy of
this Court to aid rather than defeat the mortgagor’s right to redeem his
property.
Petitioner further argues that since R.A. No. 8791 does not provide for its
retroactive application, courts therefore cannot retroactively apply its
provisions to contracts executed and consummated before its effectivity.
Also, since R.A. 8791 is a general law pertaining to the banking industry
while Act No. 3135 is a special law specifically governing real estate
mortgage and foreclosure, under the rules of statutory construction that in
case of conflict a special law prevails over a general law regardless of the
dates of enactment of both laws, Act No. 3135 clearly should prevail on the
redemption period to be applied in this case.
The constitutional issue having been squarely raised in the pleadings filed in
the trial and appellate courts, we shall proceed to resolve the same.
The law governing cases of extrajudicial foreclosure of mortgage is Act No.
3135,14 as amended by Act No. 4118. Section 6 thereof provides:
SEC. 6. In all cases in which an extrajudicial sale is made under the special
power hereinbefore referred to, the debtor, his successors-in-interest or any
judicial creditor or judgment creditor of said debtor, or any person having a
lien on the property subsequent to the mortgage or deed of
trust under which the property is sold, may redeem the same at any time
within the term of one year from and after the date of the sale; and such
redemption shall be governed by the provisions of sections four hundred and
sixty-four to four hundred and sixty-six, inclusive, of the Code of
Civil Procedure,15 in so far as these are not inconsistent with the provisions
of this Act.
The one-year period of redemption is counted from the date of the
registration of the certificate of sale. In this case, the parties provided in
their real estate mortgage contract that upon petitioner’s default and the
latter’s entire loan obligation becoming due, respondent may immediately
foreclose the mortgage judicially in accordance with the Rules of Court, or
extrajudicially in accordance with Act No. 3135, as amended.
However, Section 47 of R.A. No. 8791 otherwise known as "The General
Banking Law of 2000" which took effect on June 13, 2000, amended Act
No. 3135. Said provision reads:
SECTION 47. Foreclosure of Real Estate Mortgage. — In the event of
foreclosure, whether judicially or extrajudicially, of any mortgage on real
estate which is security for any loan or other credit accommodation granted,
the mortgagor or debtor whose real property has been sold for the full or
partial payment of his obligation shall have the right within one year after
the sale of the real estate, to redeem the property by paying the amount due
under the mortgage deed, with interest thereon at the rate specified in the
mortgage, and all the costs and expenses incurred by the bank or institution
from the sale and custody of said property less the income derived
therefrom. However, the purchaser at the auction sale concerned whether in
a judicial or extrajudicial foreclosure shall have the right to enter upon and
take possession of such property immediately after the date of the
confirmation of the auction sale and administer the same in accordance with
law. Any petition in court to enjoin or restrain the conduct of foreclosure
proceedings instituted pursuant to this provision shall be given due course
only upon the filing by the petitioner of a bond in an amount fixed by the
court conditioned that he will pay all the damages which the bank may
suffer by the enjoining or the restraint of the foreclosure proceeding.
Notwithstanding Act 3135, juridical persons whose property is being sold
pursuant to an extrajudicial foreclosure, shall have the right to redeem the
property in accordance with this provision until, but not after, the
registration of the certificate of foreclosure sale with the applicable Register
of Deeds which in no case shall be more than three (3) months after
foreclosure, whichever is earlier. Owners of property that has been sold in a
foreclosure sale prior to the effectivity of this Act shall retain their
redemption rights until their expiration. (Emphasis supplied.)
Under the new law, an exception is thus made in the case of juridical
persons which are allowed to exercise the right of redemption only "until,
but not after, the registration of the certificate of foreclosure sale" and in no
case more than three (3) months after foreclosure, whichever comes first. 16
May the foregoing amendment be validly applied in this case when the real
estate mortgage contract was executed in 1985 and the mortgage foreclosed
when R.A. No. 8791 was already in effect?
We answer in the affirmative.
When confronted with a constitutional question, it is elementary that every
court must approach it with grave care and considerable caution bearing in
mind that every statute is presumed valid and every reasonable doubt should
be resolved in favor of its constitutionality. 17 For a law to be nullified, it
must be shown that there is a clear and unequivocal breach of the
Constitution. The ground for nullity must be clear and beyond reasonable
doubt.18 Indeed, those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail.19
Petitioner’s contention that Section 47 of R.A. 8791 violates the
constitutional proscription against impairment of the obligation of contract
has no basis.
The purpose of the non-impairment clause of the Constitution 20 is to
safeguard the integrity of contracts against unwarranted interference by the
State. As a rule, contracts should not be tampered with by subsequent laws
that would change or modify the rights and obligations of the
parties.21 Impairment is anything that diminishes the efficacy of the contract.
There is an impairment if a subsequent law changes the terms of a contract
between the parties, imposes new conditions, dispenses with those agreed
upon or withdraws remedies for the enforcement of the rights of the
parties.22
Section 47 did not divest juridical persons of the right to redeem their
foreclosed properties but only modified the time for the exercise of such
right by reducing the one-year period originally provided in Act No. 3135.
The new redemption period commences from the date of foreclosure sale,
and expires upon registration of the certificate of sale or three months after
foreclosure, whichever is earlier. There is likewise no retroactive application
of the new redemption period because Section 47 exempts from its operation
those properties foreclosed prior to its effectivity and whose owners shall
retain their redemption rights under Act No. 3135.
Petitioner’s claim that Section 47 infringes the equal protection clause as it
discriminates mortgagors/property owners who are juridical persons is
equally bereft of merit.
The equal protection clause is directed principally against undue favor and
individual or class privilege.1âwphi1 It is not intended to prohibit legislation
which is limited to the object to which it is directed or by the territory in
which it is to operate. It does not require absolute equality, but merely that
all persons be treated alike under like conditions both as to privileges
conferred and liabilities imposed. 23 Equal protection permits of reasonable
classification.24 We have ruled that one class may be treated differently from
another where the groupings are based on reasonable and real
distinctions.25 If classification is germane to the purpose of the law, concerns
all members of the class, and applies equally to present and future
conditions, the classification does not violate the equal protection
guarantee.26
We agree with the CA that the legislature clearly intended to shorten the
period of redemption for juridical persons whose properties were foreclosed
and sold in accordance with the provisions of Act No. 3135. 27
The difference in the treatment of juridical persons and natural persons was
based on the nature of the properties foreclosed – whether these are used as
residence, for which the more liberal one-year redemption period is retained,
or used for industrial or commercial purposes, in which case a shorter term
is deemed necessary to reduce the period of uncertainty in the ownership of
property and enable mortgagee-banks to dispose sooner of these acquired
assets. It must be underscored that the General Banking Law of 2000,
crafted in the aftermath of the 1997 Southeast Asian financial crisis, sought
to reform the General Banking Act of 1949 by fashioning a legal framework
for maintaining a safe and sound banking system. 28 In this context, the
amendment introduced by Section 47 embodied one of such safe and sound
practices aimed at ensuring the solvency and liquidity of our
banks.1âwphi1 It cannot therefore be disputed that the said provision
amending the redemption period in Act 3135 was based on a reasonable
classification and germane to the purpose of the law.
This legitimate public interest pursued by the legislature further enfeebles
petitioner’s impairment of contract theory.
The right of redemption being statutory, it must be exercised in the manner
prescribed by the statute, 29 and within the prescribed time limit, to make it
effective. Furthermore, as with other individual rights to contract and to
property, it has to give way to police power exercised for public
welfare.30 The concept of police power is well-established in this
jurisdiction. It has been defined as the "state authority to enact legislation
that may interfere with personal liberty or property in order to promote the
general welfare." Its scope, ever-expanding to meet the exigencies of the
times, even to anticipate the future where it could be done, provides enough
room for an efficient and flexible response to conditions and circumstances
thus assuming the greatest benefits.31
The freedom to contract is not absolute; all contracts and all rights are
subject to the police power of the State and not only may regulations which
affect them be established by the State, but all such regulations must be
subject to change from time to time, as the general well-being of the
community may require, or as the circumstances may change, or as
experience may demonstrate the necessity. 32 Settled is the rule that the non-
impairment clause of the Constitution must yield to the loftier purposes
targeted by the Government. The right granted by this provision must
submit to the demands and necessities of the State’s power of
regulation.33 Such authority to regulate businesses extends to the banking
industry which, as this Court has time and again emphasized, is undeniably
imbued with public interest.34
Having ruled that the assailed Section 47 of R.A. No. 8791 is constitutional,
we find no reversible error committed by the CA in holding that petitioner
can no longer exercise the right of redemption over its foreclosed properties
after the certificate of sale in favor of respondent had been registered.
WHEREFORE, the petition for review on certiorari is DENIED for lack of
merit. The Decision dated November 19, 2010 and Resolution dated January
31, 2011 of the Court of Appeals in CA-G.R. CV No. 91120 are hereby
AFFIRMED.
With costs against the petitioner.
SO ORDERED.
 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

1. As respects the amount in controversy, the District Court has jurisdiction

of a suit where the requisite value is involved as to each of several plaintiffs
though not involved as to others. P. 297 U. S. 241.

2. A motion to dismiss the whole case because the amount in controversy as

to some of the plaintiffs is too small should be overruled. Id.

3. There is equitable jurisdiction to enjoin collection of an allegedly

unconstitutional state tax where the taxpayer, if he pays, is afforded no clear
remedy of restitution. P. 297 U. S. 242.

4. Liberty of the press is a fundamental right protected against state

U.S. Supreme Court aggression by the due process clause of the Fourteenth Amendment. P. 297
U. S. 242.
Grosjean v. American Press Co., Inc., 297 U.S. 233 (1936)
5. The fact that, as regards the Federal Government, the protection of this
Grosjean v. American Press Co., Inc. right is not left to the due process clause of the Fifth Amendment, but is
guaranteed in specie by the First Amendment, is not a sufficient reason for
excluding it from the due process clause of the Fourteenth Amendment.
No. 303
P. 297 U. S. 243.
Argued January 14, 1936
6. A corporation is a "person" within the meaning of the due process and
equal protection clauses of the Fourteenth Amendment. P. 297 U. S. 244.
Decided February 10, 1936.

297 U.S. 233

7. A State license tax (La.Act No. 23, July 12, 1934) imposed on the owners
of newspapers for the privilege of selling or charging for the advertising
therein, and measured by a percent. of the gross receipts from such
advertisements, but applicable only to newspapers enjoying a circulation of
more than 20,000 copies per week, held unconstitutional. P. 297 U. S. 244.
8. From the history of the subject, it is plain that the English rule restricting
freedom of the press to immunity from censorship before publication was
not accepted by the American colonists, and that the First Amendment was
aimed at any form of previous restraint upon printed publications or their
circulation, including restraint by taxation of newspapers and their
advertising, which were well known and odious methods still used in
England when the First Amendment was adopted. P. 297 U. S. 245.
Page 297 U. S. 234
9. The predominant purpose of the grant of immunity was to preserve an
untrammeled press as a vital source of public information. P. 297 U. S. 250.
10. Construction of a constitutional provision phrased in terms of the
common law is not determined by rules of the common law which had been
rejected in this country as unsuited to local civil or political conditions.
P. 297 U. S. 248.
It is not intended in this case to suggest that the owners of newspapers are
immune from any of the ordinary forms of taxation for support of
Government. The tax in question is not an ordinary form of tax, but one
single in kind, with a long history of hostile misuse against the freedom of
the press. The manner of its use in this case is, in itself, suspicious; it is not
measured or limited by the volume of advertisements, but by the extent of
the circulation of the publication in which the advertisements are carried,
with the plain purpose of penalizing the publishers and curtailing the
circulation of a selected group of newspapers.
10 F. Supp. 161, affirmed.
APPEAL from a decree permanently enjoining the enforcement of a state
tax on newspapers.
Page 297 U. S. 240
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This suit was brought by appellees, nine publishers of newspapers in the
State of Louisiana, to enjoin the enforcement against them of the provisions
of § 1 of the act of the legislature of Louisiana known as Act No. 23, passed
and approved July 12, 1934, as follows:
"That every person, firm, association, or corporation, domestic or foreign,
engaged in the business of selling, or making any charge for, advertising or
for advertisements, whether printed or published, or to be printed or
published, in any newspaper, magazine, periodical or publication whatever
having a circulation of more than 20,000 copies per week, or displayed and
exhibited, or to be displayed and exhibited by means of moving pictures, in
the State of Louisiana, shall, in addition to all other taxes and licenses levied
and assessed in this State, pay a license tax for the privilege of engaging in
such business in this State of two percent. (2%) of the gross receipts of such
business."
The nine publishers who brought the suit publish thirteen newspapers, and
these thirteen publications are the
Page 297 U. S. 241
only ones within the State of Louisiana having each a circulation of more
than 20,000 copies per week, although the lower court finds there are four
other daily newspapers each having a circulation of "slightly less than
20,000 copies per week" which are in competition with those published by
appellees both as to circulation and as to advertising. In addition, there are
120 weekly newspapers published in the state, also in competition, to a
greater or less degree, with the newspapers of appellees. The revenue
derived from appellees' newspapers comes almost entirely from regular
subscribers or purchasers thereof and from payments received for the
insertion of advertisements therein.
The act requires everyone subject to the tax to file a sworn report every
three months showing the amount and the gross receipts from the business
described in § 1. The resulting tax must be paid when the report is filed.
Failure to file the report or pay the tax as thus provided constitutes a
misdemeanor and subjects the offender to a fine not exceeding $500, or
imprisonment not exceeding six months, or both, for each violation. Any
corporation violating the act subjects itself to the payment of $50 to be
recovered by suit. All of the appellees are corporations. The lower court
entered a decree for appellees and granted a permanent injunction. 10 F.
Supp. 161.
First. Appellant assails the federal jurisdiction of the court below on the
ground that the matter in controversy does not exceed the sum or value of
$3,000, as required by par. 1 of § 24 of the Judicial Code. The case arises
under the Federal Constitution, and the bill alleges, and the record shows,
that the requisite amount is involved in respect of each of six of the nine
appellees. This is enough to sustain the jurisdiction of the district court. The
motion was to dismiss the bill -- that is to say, the bill in its entirety -- and in
that form it was properly denied. No motion to dismiss was made or
considered
Page 297 U. S. 242
by the lower court as to the three appellees in respect of whom the
Jurisdictional amount was insufficient, and that question, therefore, is not
before us. The Rio Grande, 19 Wall. 178, 86 U. S. 189; Gibson v.
Shufelt, 122 U. S. 27, 122 U. S. 32.
Second. The objection also is made that the bill does not make a case for
equitable relief. But the objection is clearly without merit. As pointed out
in Ohio Oil Co. v. Conway, 279 U. S. 813, 279 U. S. 815, the laws of
Louisiana afford no remedy whereby restitution of taxes and property
exacted may be enforced, even where payment has been made under both
protest and compulsion. It is true that the present act contains a provision (§
5) to the effect that, where it is established to the satisfaction of the
Supervisor of Public Accounts of the state that any payment has been made
under the act which was "not due and collectible," the Supervisor is
authorized to refund the amount out of any funds on hand collected by virtue
of the act and not remitted to the state treasurer according to law. It seems
clear that this refers only to a payment not due and collectible within the
terms of the act, and does not authorize a refund on the ground that the act is
invalid. Moreover, the act allows the Supervisor to make remittances
immediately to the state treasurer of taxes paid under the act, and requires
him to do so not later than the 30th day after the last day of the preceding
quarter, in which event the right to a refund, if not sooner exercised, would
be lost. Whether an aggrieved taxpayer may obtain relief under § 5 is, at
best, a matter of speculation. In no view can it properly be said that there
exists a plain, adequate and complete remedy at law. Davis v. Wakelee, 156
U. S. 680, 156 U. S. 688; Union Pacific R. Co. v. Weld County, 247 U. S.
282, 247 U. S. 285.
Third. The validity of the act is assailed as violating the Federal Constitution
in two particulars -- (1) that it abridges the freedom of the press in
contravention of the due process clause contained in § 1 of the Fourteenth
Page 297 U. S. 243
Amendment; (2) that it denies appellees the equal protection of the laws in
contravention of the same Amendment.
1. The first point presents a question of the utmost gravity and importance,
for, if well made, it goes to the heart of the natural right of the members of
an organized society, united for their common good, to impart and acquire
information about their common interests. The First Amendment to the
Federal Constitution provides that "Congress shall make no law . . .
abridging the freedom of speech, or of the press. . . ." While this provision is
not a restraint upon the powers of the states, the states are precluded from
abridging the freedom of speech or of the press by force of the due process
clause of the Fourteenth Amendment.
In the case of Hurtado v. California, 110 U. S. 516, this Court held that the
term "due process of law" does not require presentment or indictment by a
grand jury as a prerequisite to prosecution by a state for a criminal offense.
And the important point of that conclusion here is that it was deduced from
the fact that the Fifth Amendment, which contains the due process of law
clause in its national aspect, also required an indictment as a prerequisite to
a prosecution for crime under federal law, and it was thought that, since no
part of the amendment could be regarded as superfluous, the term "due
process of law" did not, ex vi termini, include presentment or indictment by
a grand jury in any case, and that the due process of law clause of the
Fourteenth Amendment should be interpreted as having been used in the
same sense, and as having no greater extent. But in Powell v. Alabama, 287
U. S. 45, 287 U. S. 65, 287 U. S. 68, we held that, in the light of subsequent
decisions, the sweeping language of the Hurtado case could not be accepted
without qualification. We concluded that certain fundamental rights,
safeguarded by the first eight amendments against federal action, were also
safeguarded
Page 297 U. S. 244
against state action by the due process of law clause of the Fourteenth
Amendment, and among them, the fundamental right of the accused to the
aid of counsel in a criminal prosecution.
That freedom of speech and of the press are rights of the same fundamental
character, safeguarded by the due process of law clause of the Fourteenth
Amendment against abridgement by state legislation, has likewise been
settled by a series of decisions of this Court beginning with Gitlow v. New
York, 268 U. S. 652, 268 U. S. 666, and ending with Near v. Minnesota, 283
U. S. 697, 283 U. S. 707. The word "liberty" contained in that amendment
embraces not only the right of a person to be free from physical restraint, but
the right to be free in the enjoyment of all his faculties as well. Allgeyer v.
Louisiana, 165 U. S. 578, 165 U. S. 589.
Appellant contends that the Fourteenth Amendment does not apply to
corporations; but this is only partly true. A corporation, we have held, is not
a "citizen" within the meaning of the privileges and immunities clause. Paul
v. Virginia, 8 Wall. 168. But a corporation is a "person" within the meaning
of the equal protection and due process of law clauses, which are the clauses
involved here. Covington & Lexington Turnpike Co. v. Sandford, 164 U. S.
578, 164 U. S. 592; Smyth v. Ames, 169 U. S. 466, 169 U. S. 522.
The tax imposed is designated a "license tax for the privilege of engaging in
such business" -- that is to say, the business of selling, or making any charge
for, advertising. As applied to appellees, it is a tax of two percent. on the
gross receipts derived from advertisements carried in their newspapers
when, and only when, the newspapers of each enjoy a circulation of more
than 20,000 copies per week. It thus operates as a restraint in a double sense.
First, its effect is to curtail the amount of revenue realized from advertising,
and, second, its direct
Page 297 U. S. 245
tendency is to restrict circulation. This is plain enough when we consider
that, if it were increased to a high degree, as it could be if valid (Magnano
Co. v. Hamilton, 292 U. S. 40, 292 U. S. 45, and cases cited), it well might
result in destroying both advertising and circulation.
A determination of the question whether the tax is valid in respect of the
point now under review requires an examination of the history and
circumstances which antedated and attended the adoption of the
abridgement clause of the First Amendment, since that clause expresses one
of those "fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions" (Hebert v. Louisiana, 272 U. S.
312, 272 U. S. 316), and, as such, is embodied in the concept "due process
of law" (Twining v. New Jersey, 211 U. S. 78, 211 U. S. 99), and, therefore,
protected against hostile state invasion by the due process clause of the
Fourteenth Amendment. Cf. Powell v. Alabama, supra, pp. 287 U. S. 67-68.
The history is a long one, but, for present purposes, it may be greatly
abbreviated.
For more than a century prior to the adoption of the amendment -- and,
indeed, for many years thereafter -- history discloses a persistent effort on
the part of the British government to prevent or abridge the free expression
of any opinion which seemed to criticize or exhibit in an unfavorable light,
however truly, the agencies and operations of the government. The struggle
between the proponents of measures to that end and those who asserted the
right of free expression was continuous and unceasing. As early as 1644,
John Milton, in an "Appeal for the Liberty of Unlicensed Printing," assailed
an act of Parliament which had just been passed providing for censorship of
the press previous to publication. He vigorously defended the right of every
man to make public his honest views "without previous censure", and
declared the impossibility of finding any man base enough to accept
Page 297 U. S. 246
the office of censor and at the same time good enough to be allowed to
perform its duties. Collett, History of the Taxes on Knowledge, vol. I, pp. 6.
The act expired by its own terms in 1695. It was never renewed, and the
liberty of the press thus became, as pointed out by Wickwar (The Struggle
for the Freedom of the Press, p. 15), merely "a right or liberty to
publish without a license what formerly could be published only with one."
But mere exemption from previous censorship was soon recognized as too
narrow a view of the liberty of the press.
In 1712, in response to a message from Queen Anne (Hansard's
Parliamentary History of England, vol. 6, p. 1063), Parliament imposed a
tax upon all newspapers and upon advertisements. Collett, vol. I, pp. 8-10.
That the main purpose of these taxes was to suppress the publication of
comments and criticisms objectionable to the Crown does not admit of
doubt. Stewart, Lennox and the Taxes on Knowledge, 15 Scottish Historical
Review, 322-327. There followed more than a century of resistance to, and
evasion of, the taxes, and of agitation for their repeal. In the article last
referred to (p. 326), which was written in 1918, it was pointed out that these
taxes constituted one of the factors that aroused the American colonists to
protest against taxation for the purposes of the home government, and that
the revolution really began when, in 1765, that government sent stamps for
newspaper duties to the American colonies.
These duties were quite commonly characterized as "taxes on knowledge," a
phrase used for the purpose of describing the effect of the exactions and at
the same time condemning them. That the taxes had, and were intended to
have, the effect of curtailing the circulation of newspapers, and particularly
the cheaper ones whose readers were generally found among the masses of
the people, went almost without question, even on the part of
Page 297 U. S. 247
those who defended the act. May (Constitutional History of England, 7th
ed., vol. 2, p. 245), after discussing the control by "previous censure," says:
". . . a new restraint was devised in the form of a stamp duty on newspapers
and advertisements -- avowedly for the purpose of repressing libels. This
policy, being found effectual in limiting the circulation of cheap papers, was
improved upon in the two following reigns, and continued in high esteem
until our own time."
Collett (vol. I, p. 14), says,
"Any man who carried on printing or publishing for a livelihood was
actually at the mercy of the Commissioners of Stamps, when they chose to
exert their powers."
Citations of similar import might be multiplied many times, but the
foregoing is enough to demonstrate beyond peradventure that, in the
adoption of the English newspaper stamp tax and the tax on advertisements,
revenue was of subordinate concern, and that the dominant and controlling
aim was to prevent, or curtail the opportunity for, the acquisition of
knowledge by the people in respect of their governmental affairs. It is idle to
suppose that so many of the best men of England would for a century of
time have waged, as they did, stubborn and often precarious warfare against
these taxes if a mere matter of taxation had been involved. The aim of the
struggle was not to relieve taxpayers from a burden, but to establish and
preserve the right of the English people to full information in respect of the
doings or misdoings of their government. Upon the correctness of this
conclusion the very characterization of the exactions as "taxes on
knowledge" sheds a flood of corroborative light. In the ultimate, an
informed and enlightened public opinion was the thing at stake, for, as
Erskine, in his great speech in defense of Paine, has said, "The liberty of
opinion keeps governments themselves in due subjection to their
Page 297 U. S. 248
duties." Erskine's Speeches, High's ed. vol. I, p. 525. See May's
Constitutional History of England, 7th ed., vol. 2, pp. 238-245.
In 1785, only four years before Congress had proposed the First
Amendment, the Massachusetts legislature, following the English example,
imposed a stamp tax on all newspapers and magazines. The following year,
an advertisement tax was imposed. Both taxes met with such violent
opposition that the former was repealed in 1786, and the latter in 1788.
Duniway, Freedom of the Press in Massachusetts, pp. 136-137.
The framers of the First Amendment were familiar with the English
struggle, which then had continued for nearly eighty years and was destined
to go on for another sixty-five years, at the end of which time it culminated
in a lasting abandonment of the obnoxious taxes. The framers were likewise
familiar with the then recent Massachusetts episode, and while that
occurrence did much to bring about the adoption of the amendment
(see Pennsylvania and the Federal Constitution, 1888, p. 181), the
predominant influence must have come from the English experience. It is
impossible to concede that, by the words "freedom of the press," the framers
of the amendment intended to adopt merely the narrow view then reflected
by the law of England that such freedom consisted only in immunity from
previous censorship, for this abuse had then permanently disappeared from
English practice. It is equally impossible to believe that it was not intended
to bring within the reach of these words such modes of restraint as were
embodied in the two forms of taxation already described. Such belief must
be rejected in the face of the then well known purpose of the exactions and
the general adverse sentiment of the colonies in respect of them.
Undoubtedly, the range of a constitutional provision phrased in terms of the
common law sometimes may be fixed by recourse to the applicable rules of
that
Page 297 U. S. 249
law. But the doctrine which justifies such recourse, like other canons of
construction, must yield to more compelling reasons whenever they
exist. Cf. Continental Illinois Nat. Bank v. Chicago, R.I. & P. Ry. Co., 294
U. S. 648, 294 U. S. 668-669. And, obviously, it is subject to the
qualification that the common law rule invoked shall be one not rejected by
our ancestors as unsuited to their civil or political conditions. Murray's
lessee v. Hoboken Land & Improvement Co., 18 How. 272, 59 U. S. 276-
277; Waring v. Clarke, 5 How. 441, 46 U. S. 454-457; Powell v. Alabama,
supra, pp. 287 U. S. 60-65.
In the light of all that has now been said, it is evident that the restricted rules
of the English law in respect of the freedom of the press in force when the
Constitution was adopted were never accepted by the American colonists,
and that, by the First Amendment, it was meant to preclude the national
government, and, by the Fourteenth Amendment, to preclude the states,
from adopting any form of previous restraint upon printed publications, or
their circulation, including that which had theretofore been effected by these
two well known and odious methods.
This court had occasion in Near v. Minnesota, supra at pp. 283 U. S. 713 et
seq., to discuss at some length the subject in its general aspect. The
conclusion there stated is that the object of the constitutional provisions was
to prevent previous restraints on publication, and the court was careful not to
limit the protection of the right to any particular way of abridging it. Liberty
of the press within the meaning of the constitutional provision, it was
broadly said (p. 283 U. S. 716), meant "principally, although not
exclusively, immunity from previous restraints or [from] censorship."
Judge Cooley has laid down the test to be applied --
"The evils to be prevented were not the censorship of the press merely, but
any action of the government by
Page 297 U. S. 250
means of which it might prevent such free and general discussion of public
matters as seems absolutely essential to prepare the people for an intelligent
exercise of their rights as citizens."
2 Cooley's Constitutional Limitations, 8th ed., p. 886.
It is not intended by anything we have said to suggest that the owners of
newspapers are immune from any of the ordinary forms of taxation for
support of the government. But this is not an ordinary form of tax, but one
single in kind, with a long history of hostile misuse against the freedom of
the press.
The predominant purpose of the grant of immunity here invoked was to
preserve an untrammeled press as a vital source of public information. The
newspapers, magazines and other journals of the country, it is safe to say,
have shed and continue to shed, more light on the public and business affairs
of the nation than any other instrumentality of publicity, and, since informed
public opinion is the most potent of all restraints upon misgovernment, the
suppression or abridgement of the publicity afforded by a free press cannot
be regarded otherwise than with grave concern. The tax here involved is bad
not because it takes money from the pockets of the appellees. If that were
all, a wholly different question would be presented. It is bad because, in the
light of its history and of its present setting, it is seen to be a deliberate and
calculated device in the guise of a tax to limit the circulation of information
to which the public is entitled in virtue of the constitutional guaranties. A
free press stands as one of the great interpreters between the government
and the people. To allow it to be fettered is to fetter ourselves.
In view of the persistent search for new subjects of taxation, it is not without
significance that, with the single exception of the Louisiana statute, so far as
we can discover, no state during the one hundred fifty years of our
Page 297 U. S. 251
national existence has undertaken to impose tax like that now in question.
The form in which the tax is imposed is, in itself, suspicious. It is not
measured or limited by the volume of advertisements. It is measured alone
by the extent of the circulation of the publication in which the
advertisements are carried, with the plain purpose of penalizing the
publishers and curtailing the circulation of a selected group of newspapers.
2. Having reached the conclusion that the act imposing the tax in question is
unconstitutional under the due process of law clause because it abridges the
freedom of the press, we deem it unnecessary to consider the further ground
assigned that it also constitutes a denial of the equal protection of the laws.
Decree affirmed.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, represented by their
parents, MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO
& JOEL OYAO, represented by their parents MR. & MRS. ELIEZER
OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by
parents MR. & MRS. GODOFREDO DIAMOS, SARA OSTIA &
JONATHAN OSTIA, represented by their parents MR. & MRS.
FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO,
represented by their parents MR. & MRS. LYDIO SEQUINO,
NAPTHALE TUNACAO represented by his parents MR. & MRS.
MANUEL TUNACAO PRECILA PINO represented by her parents
MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR,
represented by their parents MR. & MRS. HERMINIGILDO ALFAR,
FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by
their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO
ALFAR, represented by their parents MR. & MRS. GENEROSO
ALFAR, MARTINO VILLAR, represented by their parents MR. &
MRS. GENARO VILLAR, PERGEBRIEL GUINITA & CHAREN
 GUINITA, represented by their parents MR. & MRS. CESAR
GUINITA, ALVIN DOOP represented by his parents MR. & MRS.
LEONIDES DOOP, RHILYN LAUDE represented by her parents MR.
& MRS. RENE LAUDE, LEOREMINDA MONARES represented by
her parents MR. & MRS. FLORENCIO MONARES, MERCY
MONTECILLO, represented by her parents MR. & MRS. MANUEL
MONTECILLO, ROBERTO TANGAHA, represented by his parent
ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA
represented by their parents MR. & MRS. ALBERTO TANGAHA,
MAXIMO EBRALINAG represented by his parents MR. & MRS.
PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON &
JONATHAN CUMON, represented by their father RAFAEL CUMON,
EVIE LUMAKANG and JUAN LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ
AMOR SARSOZO, & IGNA MARIE SARSOZO represented by their
parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL JOSEPH &
HENRY JOSEPH, represented by parent ANNIE JOSEPH,
EMERSON TABLASON & MASTERLOU TABLASON, represented
by their parents EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and
MR. MANUEL F. BIONGCOG, Cebu District Supervisor, respondents.
G.R. No. 95887 December 29, 1995
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS
AMOLO, REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD
ALSADO represented by their parents MR. & MRS. ABELARDO
ALSADO, NESIA ALSADO, REU ALSADO and LILIBETH
ALSADO, represented by their parents MR. & MRS. ROLANDO
ALSADO, SUZETTE NAPOLES, represented by her parents
ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA
CARMELOTES, represented by her parents MR. & MRS. SERGIO
CARMELOTES, BABY JEAN MACAPAS, represented by her parents
MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL
DEMOTOR, and LEAH DEMOTOR, represented by their parents
MR. & MRS. LEONARDO DEMOTOR, JURELL VILLA and
MELONY VILLA, represented by their parents MR. & MRS.
JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY GRACE
MAHINAY, and MAGDALENE MAHINAY, represented by their
parents MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and
JERWIN ANTIOLA, represented by their parents FELIPE ANTIOLA
and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO,
represented by her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her
parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON
PALATULON, SALMERO PALATULON and ROSALINA
PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and
ANTONIO A. SANGUTAN, respondents.
R E SO L U T I O N
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March 1, 1993
granting private respondents' petition for certiorari and prohibition and
annulling the expulsion orders issued by the public respondents therein on
the ground that the said decision created an exemption in favor of the
members of the religious sect, the Jehovah's Witnesses, in violation of the
"Establishment Clause" of the Constitution. The Solicitor General, on behalf
of the public respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for special
treatment in favor of a minority sect even on the basis of a claim of religious
freedom may be criticized as granting preference to the religious beliefs of
said sect in violation of the "non-establishment guarantee" provision of the
Constitution. Surely, the decision of the Court constitutes a special favor
which immunizes religious believers such as Jehovah's Witnesses to the law
and the DECS rules and regulations by interposing the claim that the
conduct required by law and the rules and regulation (sic) are violative of
their religious beliefs. The decision therefore is susceptible to the very
criticism that the grant of exemption is a violation of the "non-
establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority poses a
risk of collision course with the "equal protection of the laws" clause in
respect of the non-exempt, and, in public schools, a collision course with the
"non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a "neutral
stance" by reverting to its holding in Gerona declaring the flag as being
devoid of any religious significance. He stresses that the issue here is not
curtailment of religious belief but regulation of the exercise of religious
belief. Finally, he maintains that the State's interests in the case at bench are
constitutional and legal obligations to implement the law and the
constitutional mandate to inculcate in the youth patriotism and nationalism
and to encourage their involvement in public and civic affairs, referring to
the test devised by the United States Supreme Court in U.S. vs. O'Brien.1
II
All the petitioners in the original case 2 were minor school children, and
members of the sect, Jehovah's Witnesses (assisted by their parents) who
were expelled from their classes by various public school authorities in
Cebu for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and
by Department Order No. 8, dated July 21, 1955 issued by the Department
of Education. Aimed primarily at private educational institutions which did
not observe the flag ceremony exercises, Republic Act No. 1265 penalizes
all educational institutions for failure or refusal to observe the flag ceremony
with public censure on first offense and cancellation of the recognition or
permit on second offense.
The implementing regulations issued by the Department of Education
thereafter detailed the manner of observance of the same. Immediately
pursuant to these orders, school officials in Masbate expelled children
belonging to the sect of the Jehovah's Witnesses from school for failing or
refusing to comply with the flag ceremony requirement. Sustaining these
expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of
Education3 held that:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution guarantee and protect.
Considering the complete separation of church and state in our system of
government, the flag is utterly devoid of any religious significance. Saluting
the flag consequently does not involve any religious ceremony. . . .
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or
sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations
and meanings to be given to a certain ritual or ceremony as there are
religious groups or sects or followers.
Upholding religious freedom as a fundamental right deserving the "highest
priority and amplest protection among human rights," this Court,
in Ebralinag vs. Division Superintendent of Schools of Cebu4 re-examined
our over two decades-old decision in Gerona and reversed expulsion orders
made by the public respondents therein as violative of both the free exercise
of religion clause and the right of citizens to education under the 1987
Constitution.5
From our decision of March 1, 1993, the public respondents filed a motion
for reconsideration on grounds hereinabove stated. After a careful study of
the grounds adduced in the government's Motion For Reconsideration of our
original decision, however, we find no cogent reason to disturb our earlier
ruling.
The religious convictions and beliefs of the members of the religious sect,
the Jehovah's Witnesses are widely known and are equally widely
disseminated in numerous books, magazines, brochures and leaflets
distributed by their members in their house to house distribution efforts and
in many public places. Their refusal to render obeisance to any form or
symbol which smacks of idolatry is based on their sincere belief in the
biblical injunction found in Exodus 20:4,5, against worshipping forms or
idols other than God himself. The basic assumption in their universal refusal
to salute the flags of the countries in which they are found is that such a
salute constitutes an act of religious devotion forbidden by God's law. This
assumption, while "bizarre" to others is firmly anchored in several biblical
passages.6
And yet, while members of Jehovah's Witnesses, on the basis of religious
convictions, refuse to perform an act (or acts) which they consider
proscribed by the Bible, they contend that such refusal should not be taken
to indicate disrespect for the symbols of the country or evidence that they
are wanting in patriotism and nationalism. They point out that as citizens,
they have an excellent record as law abiding members of society even if
they do not demonstrate their refusal to conform to the assailed orders by
overt acts of conformity. On the contrary, they aver that they show their
respect through less demonstrative methods manifesting their allegiance, by
their simple obedience to the country's laws, 7 by not engaging in
antigovernment activities of any kind, 8 and by paying their taxes and dues to
society as self-sufficient members of the community. 9 While they refuse to
salute the flag, they are willing to stand quietly and peacefully at attention,
hands on their side, in order not to disrupt the ceremony or disturb those
who believe differently.10
The religious beliefs, practices and convictions of the members of the sect as
a minority are bound to be seen by others as odd and different and at
divergence with the complex requirements of contemporary societies,
particularly those societies which require certain practices as manifestations
of loyalty and patriotic behavior. Against those who believe that coerced
loyalty and unity are mere shadows of patriotism, the tendency to exact "a
hydraulic insistence on conformity to majoritarian standards," 11 is seductive
to the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as the
responsibility "to inculcate in the minds of the youth the values of patriotism
and nationalism and to encourage their involvement in public and civic
affairs." The teaching of these values ranks at the very apex of education's
"high responsibility" of shaping up the minds of the youth in those
principles which would mold them into responsible and productive members
of our society. However, the government's interest in molding the young
into patriotic and civic spirited citizens is "not totally free from a balancing
process"12 when it intrudes into other fundamental rights such as those
specifically protected by the Free Exercise Clause, the constitutional right to
education and the unassailable interest of parents to guide the religious
upbringing of their children in accordance with the dictates of their
conscience and their sincere religious beliefs. 13 Recognizing these values,
Justice Carolina Grino-Aquino, the writer of the original opinion,
underscored that a generation of Filipinos which cuts its teeth on the Bill of
Rights would find abhorrent the idea that one may be compelled, on pain of
expulsion, to salute the flag sing the national anthem and recite the patriotic
pledge during a flag ceremony. 14 "This coercion of conscience has no place
in a free society".15
The State's contentions are therefore, unacceptable, for no less fundamental
than the right to take part is the right to stand apart. 16 In the context of the
instant case, the freedom of religion enshrined in the Constitution should be
seen as the rule, not the exception. To view the constitutional guarantee in
the manner suggested by the petitioners would be to denigrate the status of a
preferred freedom and to relegate it to the level of an abstract principle
devoid of any substance and meaning in the lives of those for whom the
protection is addressed. As to the contention that the exemption accorded by
our decision benefits a privileged few, it is enough to re-emphasize that "the
constitutional protection of religious freedom terminated disabilities, it did
not create new privileges. It gave religious equality, not civil
immunity."17 The essence of the free exercise clause is freedom from
conformity to religious dogma, not freedom from conformity to law because
of religious dogma.18 Moreover, the suggestion implicit in the State's
pleadings to the effect that the flag ceremony requirement would be equally
and evenly applied to all citizens regardless of sect or religion and does not
thereby discriminate against any particular sect or denomination escapes the
fact that "[a] regulation, neutral on its face, may in its application,
nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion." 19
III
The ostensible interest shown by petitioners in preserving the flag as the
symbol of the nation appears to be integrally related to petitioner's
disagreement with the message conveyed by the refusal of members of the
Jehovah's Witness sect to salute the flag or participate actively in flag
ceremonies on religious grounds.20 Where the governmental interest clearly
appears to be unrelated to the suppression of an idea, a religious doctrine or
practice or an expression or form of expression, this Court will not find it
difficult to sustain a regulation. However, regulations involving this area are
generally held against the most exacting standards, and the zone of
protection accorded by the Constitution cannot be violated, except upon a
showing of a clear and present danger of a substantive evil which the state
has a right to protect.21 Stated differently, in the case of a regulation which
appears to abridge a right to which the fundamental law accords high
significance it is the regulation, not the act (or refusal to act), which is the
exception and which requires the court's strictest scrutiny. In the case at
bench, the government has not shown that refusal to do the acts of
conformity exacted by the assailed orders, which respondents point out
attained legislative cachet in the Administrative Code of 1987, would pose a
clear and present danger of a danger so serious and imminent, that it would
prompt legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court
held that the "State's asserted interest in preserving the fag as a symbol of
nationhood and national unity was an interest related to the suppression of
free expression . . . because the State's concern with protecting the flag's
symbolic meaning is implicated only when a person's treatment of the flag
communicates some message. 22 While the very concept of ordered liberty
precludes this Court from allowing every individual to subjectively define
his own standards on matters of conformity in which society, as a whole has
important interests, the records of the case and the long history of flag salute
cases abundantly supports the religious quality of the claims adduced by the
members of the sect Jehovah's Witnesses. Their treatment of flag as a
religious symbol is well-founded and well-documented and is based on
grounds religious principle. The message conveyed by their refusal to
participate in the flag ceremony is religious, shared by the entire community
of Jehovah's Witnesses and is intimately related to their theocratic beliefs
and convictions. The subsequent expulsion of members of the sect on the
basis of the regulations assailed in the original petitions was therefore
clearly directed against religious practice. It is obvious that the assailed
orders and memoranda would gravely endanger the free exercise of the
religious beliefs of the members of the sect and their minor children.
Furthermore, the view that the flag is not a religious but a neutral, secular
symbol expresses a majoritarian view intended to stifle the expression of
the belief that an act of saluting the flag might sometimes be — to some
individuals — so offensive as to be worth their giving up another
constitutional right — the right to education. Individuals or groups of
individuals get from a symbol the meaning they put to it. 23 Compelling
members of a religious sect to believe otherwise on the pain of denying
minor children the right to an education is a futile and unconscionable
detour towards instilling virtues of loyalty and patriotism which are best
instilled and communicated by painstaking and non-coercive methods.
Coerced loyalties, after all, only serve to inspire the opposite. The methods
utilized to impose them breed resentment and dissent. Those who attempt to
coerce uniformity of sentiment soon find out that the only path towards
achieving unity is by way of suppressing dissent. 24 In the end, such attempts
only find the "unanimity of the graveyard."25
To the extent to which members of the Jehovah's Witnesses sect assiduously
pursue their belief in the flag's religious symbolic meaning, the State cannot,
without thereby transgressing constitutionally protected boundaries, impose
the contrary view on the pretext of sustaining a policy designed to foster the
supposedly far-reaching goal of instilling patriotism among the youth. While
conceding to the idea — adverted to by the Solicitor General — that certain
methods of religious expression may be prohibited 26 to serve legitimate
societal purposes, refusal to participate in the flag ceremony hardly
constitutes a form of religious expression so offensive and noxious as to
prompt legitimate State intervention. It is worth repeating that the absence
of a demonstrable danger of a kind which the State is empowered to protect
militates against the extreme disciplinary methods undertaken by school
authorities in trying to enforce regulations designed to compel attendance in
flag ceremonies. Refusal of the children to participate in the flag salute
ceremony would not interfere with or deny the rights of other school
children to do so. It bears repeating that their absence from the ceremony
hardly constitutes a danger so grave and imminent as to warrant the state's
intervention.
Finally, the respondents' insistence on the validity of the actions taken by
the government on the basis of their averment that "a government regulation
of expressive conduct is sufficiently justified if it is within the constitutional
power of the government (and) furthers an important and substantial
government interest"27 misses the whole point of the test devised by the
United States Supreme Court in O'Brien, cited by respondent, because the
Court therein was emphatic in stating that "the government interest (should
be) unrelated to the suppression of free expression." We have already stated
that the interest in regulation in the case at bench was clearly related to the
suppression of an expression directly connected with the freedom of religion
and that respondents have not shown to our satisfaction that the restriction
was prompted by a compelling interest in public order which the state has a
right to protect. Moreover, if we were to refer (as respondents did by
referring to the test in O'Brien) to the standards devised by the US Supreme
Court in determining the validity or extent of restrictive regulations
impinging on the freedoms of the mind, then the O'Brien standard is hardly
appropriate because the standard devised in O'Brien only applies if the
State's regulation is not related to communicative conduct. If a relationship
exists, a more demanding standard is applied.28

The responsibility of inculcating the values of patriotism, nationalism, good

citizenship, and moral uprightness is a responsibility shared by the State
with parents and other societal institutions such as religious sects and
denominations. The manner in which such values are demonstrated in a
plural society occurs in ways so variable that government cannot make
claims to the exclusivity of its methods of inculcating patriotism so all-
encompassing in scope as to leave no room for appropriate parental or
religious influences. Provided that those influences do not pose a clear and
present danger of a substantive evil to society and its institutions,
expressions of diverse beliefs, no matter how upsetting they may seem to the
majority, are the price we pay for the freedoms we enjoy.

WHEREFORE, premises considered, the instant Motion is hereby DENIED.

SO ORDERED.

For this reason I join in holding that compulsory flag salute is

unconstitutional.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59524 February 18, 1985
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First
Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE
RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of
Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO
APOSTOL of Quezon City; COL. BALBINO DIEGO and COL.
ROMAN MADELLA, respondents.
GUTIERREZ, JR., J.:
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has
been established to warrant the filing of an information for subversion
against him. Petitioner asks this Court to prohibit and prevent the
respondents from using the iron arm of the law to harass, oppress, and
persecute him, a member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of
August, September and October of 1980. On September 6, 1980, one Victor
Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles,
California, almost killed himself and injured his younger brother, Romeo, as
a result of the explosion of a small bomb inside his room at the YMCA
building in Manila. Found in Lovely's possession by police and military
authorities were several pictures taken sometime in May, 1980 at the
birthday party of former Congressman Raul Daza held at the latter's
residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife
were among those whose likenesses appeared in the group pictures together
with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by
military and police authorities to the AFP Medical Center (V. Luna
Hospital) where he was placed in the custody and detention of Col. Roman
P. Madella, under the over-all direction of General Fabian Ver, head of the
National Intelligence and Security Authority (NISA). Shortly afterwards,
Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged
with subversion, illegal possession of explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila
including one which resulted in the death of an American lady who was
shopping at Rustan's Supermarket in Makati and others which caused
injuries to a number of persons.
On September 20, 1980, the President's anniversary television radio press
conference was broadcast. The younger brother of Victor Lovely, Romeo,
was presented during the conference. In his interview, Romeo stated that he
had driven his elder brother, Victor, to the petitioner's house in Greenhills
on two occasions. The first time was on August 20, 1980. Romeo stated that
Victor did not bring any bag with him on that day when he went to the
petitioner's residence and did not carry a bag when he left. The second time
was in the afternoon of August 31, 1980 when he brought Victor only to the
gate of the petitioner's house. Romeo did not enter the petitioner's residence.
Neither did he return that day to pick up his brother.
The next day, newspapers came out with almost Identical headlines stating
in effect that petitioner had been linked to the various bombings in Metro
Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he
was held incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have
exploded at three big hotels in Metro Manila, namely: Philippine Plaza,
Century Park Sheraton and Manila Peninsula. The bombs injured nine
people. A meeting of the General Military Council was called for October 6,
1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of
Travel Agents at the Philippine International Convention Center, a small
bomb exploded. Within the next twenty-four hours, arrest, search, and
seizure orders (ASSOs) were issued against persons who were apparently
implicated by Victor Lovely in the series of bombings in Metro Manila. One
of them was herein petitioner. Victor Lovely offered himself to be a "state
witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of
the petitioner at the Manila Medical Center where he was confined due to
his recurrent and chronic ailment of bronchial asthma and placed him under
arrest. The arresting officer showed the petitioner the ASSO form which
however did not specify the charge or charges against him. For some time,
the petitioner's lawyers were not permitted to visit him in his hospital room
until this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the petitioner's right
to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army
prison camp at Fort Bonifacio, Makati. The petitioner states that he was not
informed why he was transferred and detained, nor was he ever investigated
or questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest
in the custody of Mrs. Lydia Salonga" still without the benefit of any
investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et
al. (which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from receipt
of the charge sheet and the supporting evidence within which to file his
counter-evidence. The petitioner states that up to the time martial law was
lifted on January 17, 1981, and despite assurance to the contrary, he has not
received any copies of the charges against him nor any copies of the so-
called supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as
amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142
of the Revised Penal Code. The inquest court set the preliminary
investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend
a series of church conferences and undergo comprehensive medical
examinations of the heart, stomach, liver, eye and ear including a possible
removal of his left eye to save his right eye. Petitioner Salonga almost died
as one of the principal victims of the dastardly bombing of a Liberal Party
rally at Plaza Miranda on August 20, 1971. Since then, he has suffered
serious disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a piece
of shrapnel lodged one millimeter from his aorta. The petitioner has limited
use of his one remaining hand and arms, is completely blind and physical in
the left eye, and has scar like formations in the remaining right eye. He is
totally deaf in the right ear and partially deaf in the left ear. The petitioner's
physical ailments led him to seek treatment abroad.
On or around March 26, 1981, the counsel for petitioner was furnished a
copy of an amended complaint signed by Gen. Prospero Olivas, dated
March 12, 1981, charging the petitioner, along with 39 other accused with
the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg.
31 and P.D. 1736. Hearings for preliminary investigation were conducted.
The prosecution presented as its witnesses Ambassador Armando
Fernandez, the Consul General of the Philippines in Los Angeles,
California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal
Panel of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima
facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January
4, 1982, he issued a resolution ordering the filing of an information for
violation of the Revised Anti-Subversion Act, as amended, against forty
(40) people, including herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and
January 4, 1982 are now the subject of the petition. It is the contention of the
petitioner that no prima facie case has been established by the prosecution to
justify the filing of an information against him. He states that to sanction his
further prosecution despite the lack of evidence against him would be to
admit that no rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence
offered by the prosecution utterly insufficient to establish a prima facie case
against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain,
speedy and adequate remedy in the ordinary course of law; and that public
interest dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to
appreciate or take into account certain exceptions when a petition for
certiorari is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a motion to quash filed by an
accused in a criminal case shall be denied, the remedy of the accused-
movant is not to file a petition for certiorari or mandamus or prohibition, the
proper recourse being to go to trial, without prejudice to his right to reiterate
the grounds invoked in his motion to quash if an adverse judgment is
rendered against him, in the appeal that he may take therefrom in the
manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v.
Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that, under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered proper
in the interest of "more enlightened and substantial justice", as was so
declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."
Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very face
of the record no evidence linking him to the alleged conspiracy exists. Ex-
Senator Jovito Salonga, himself a victim of the still unresolved and heinous
Plaza Miranda bombings, was arrested at the Manila Medical Center while
hospitalized for bronchial asthma. When arrested, he was not informed of
the nature of the charges against him. Neither was counsel allowed to talk to
him until this Court intervened through the issuance of an order directing
that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et
al., G.R. No. 55345, October 28, 1980). Only after four months of detention
was the petitioner informed for the first time of the nature of the charges
against him. After the preliminary investigation, the petitioner moved to
dismiss the complaint but the same was denied. Subsequently, the
respondent judge issued a resolution ordering the filing of an information
after finding that a prima facie case had been established against an of the
forty persons accused.
In the light of the failure to show prima facie that the petitioner was
probably guilty of conspiring to commit the crime, the initial disregard of
petitioner's constitutional rights together with the massive and damaging
publicity made against him, justifies the favorable consideration of this
petition by this Court. With former Senator Benigno Aquino, Jr. now
deceased, there are at least 38 other co-accused to be tried with the
petitioner. The prosecution must present proof beyond reasonable doubt
against each and every one of the 39 accused, most of whom have varying
participations in the charge for subversion. The prosecution's star witness
Victor Lovely and the only source of information with regard to the alleged
link between the petitioner and the series of terrorist bombings is now in the
United States. There is reason to believe the petitioner's citation of
international news dispatches * that the prosecution may find it difficult if
not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand jury
how could he possibly be made to testify when the charges against the
respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at
this stage the issue of whether or not the respondent judge gravely abused
his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional
evidence during the trial and if the evidence, by then, is not sufficient to
prove the petitioner's guilt, he would anyway be acquitted. Yes, but under
the circumstances of this case, at what cost not only to the petitioner but to
the basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counter-balance the presumption of innocence to
warrant a conviction. The question raised before us now is: Were the
evidences against the petitioner uncontradicted and if they were unexplained
or uncontradicted, would they, standing alone, sufficiently overcome the
presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the
respondent judge relied only on the testimonies of Col. Balbino Diego and
Victor Lovely. Ambassador Armando Fernandez, when called upon to
testify on subversive organizations in the United States nowhere mentioned
the petitioner as an organizer, officer or member of the Movement for Free
Philippines (MFP), or any of the organizations mentioned in the complaint.
Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely "that
it was the residence of ex-Senator Salonga where they met together with
Renato Tañada, one of the brains of the bombing conspiracy ... and the fact
that Sen. Salonga has been meeting with several subversive personnel based
in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on
the group pictures taken at former Congressman Raul Daza's birthday party.
In concluding that a conspiracy exists to overthrow by violent means the
government of the Philippines in the United States, his only bases were
"documentary as well as physical and sworn statements that were referred to
me or taken by me personally," which of course negate personal knowledge
on his part. When asked by the court how he would categorize petitioner in
any of the subversive organizations, whether petitioner was an organizer,
officer or a member, the witness replied:
A. To categorize former Senator Salonga if he were an organizer, he is an
officer or he is a member, your Honor, please, we have to consider the
surrounding circumstances and on his involvement: first, Senator Salonga
wanted always to travel to the United States at least once a year or more
often under the pretext of to undergo some sort of operation and participate
in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)
Such testimony, being based on affidavits of other persons and purely
hearsay, can hardly qualify as prima facie evidence of subversion. It should
not have been given credence by the court in the first place. Hearsay
evidence, whether objected to or not, -has no probative value as the affiant
could not have been cross-examined on the facts stated therein. (See People
v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as
Victor Lovely, himself, was personally examined by the court, there was no
need for the testimony of Col. Diego. Thus, the inquest judge should have
confined his investigation to Victor Burns Lovely, the sole witness whose
testimony had apparently implicated petitioner in the bombings which
eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt. Col.
Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely
was not presented as a prosecution or state witness but only as a defense
witness for his two younger brothers, Romeo and Baltazar, who were both
included in the complaint but who were later dropped from the information.
Victor Lovely was examined by his counsel and cross-examined by the
fiscal. In the process, he Identified the statement which he made before Col.
Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made
a manifestation before the court that it was adopting Lovely as a prosecution
witness.
According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel
where somebody would come to contact me and give the materials needed
in the execution of my mission. I thought this was not safe so I disagreed
with him. Mr. Psinakis changed the plan and instead told me to visit the
residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet
me there to give the materials I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence
of Mr. Johnny Chua, husband of my business partner, then I went to the
Hospital where I visited my mother and checked-in at Room 303 of the
YMCA at Concepcion Street, Manila.
38. Q. Did you visit the residence of former Senator Jovito Salonga as
directed by Psinakis?
A. I visited Sen. Salonga's place three (3) times, the first visit was August 20
or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these
visits, I TALKED to him on the phone about three or four times. On my first
visit, I told him "I am expecting an attache case from somebody which will
be delivered to your house," for which Sen. Salonga replied "Wala namang
nagpunta dito at wala namang attache case para sa iyo." However, if your
attache case arrives, I'll just call you." I gave him my number. On my
second visit, Salonga said, "I'll be very busy so just come back on the 31st
of August at 4 P.M." On that date, I was with friends at Batulao Resort and
had to hurry back to be at Salonga's place for the appointment. I arrived at
Salonga's place at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen.
Salonga joined me in the sala. Sen. Salonga informed me that somebody
will be coming to give me the attache case but did not tell me the name.
40. Q. Are there any subject matters you discuss while waiting for that
somebody to deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the
efforts of Raul Daza in setting up that meeting but I have previous business
commitments at Norfolk, Virginia. I told him, however, that through the
efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport
telephone booth in San Francisco. He also asked about Raul Daza, Steve
Psinakis and the latest opposition group activities but it seems he is well
informed.
41. Q. How long did you wait until that somebody arrived?
A. About thirty (30) minutes.
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised to see Atty. Renato Tañada
Jovy Salonga was the one who met him and as I observed parang nasa
sariling bahay si Tañada nung dumating. They talked for five (5) minutes in
very low tones so I did not hear what they talked about. After their
whispering conversations, Sen. Salonga left and at this time Atty. "Nits"
Tañada told me "Nasa akin ang kailangan mo, nasa kotse."
43. Q. Were the materials given to you?
A. When Sen. Salonga came back, we asked to be permitted to leave and I
rode in Atty. "Nits" Tañadas old Pontiac car colored dirty brown and
proceeded to Broadway Centrum where before I alighted, Atty. Tañada
handed me a "Puma" bag containing all the materials I needed.
xxx xxx xxx
45. Q. What were the contents of the Puma bag?
A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten
(10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical
blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2)
improvised electrical testers. ten (10) plastic packs of high explosive about 1
pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence by
the accused, Lovely gave a different story which negates the above
testimony insofar as the petitioner's participation was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in Manila and for what purpose?
A. Before I left for the Philippines, Mr. Psinakis told me to check in at the
Manila Hotel or the Plaza Hotel, and somebody would just deliver the
materials I would need. I disapproved of this, and I told him I would prefer a
place that is familiar to me or who is close to me. Mr. Psinakis suggested the
residence of Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen.
Salonga, but he was out. The next day I made a call again. I was able to
contact him. I made an appointment t see him. I went to Sen. Salonga's
house the following day. I asked Sen. Salonga if someone had given him an
attache case for me. He said nobody. Afterwards, I made three calls to Sen.
Salonga. Sen. Salonga told me "call me again on the 31st of August. I did
not call him, I just went to his house on the 31st of August at 4 P.M. A few
minutes after my arrival Atty. Renato Tañada arrived. When he had a
chance to be near me, he (Atty. Tanada) whispered to me that he had the
attache case and the materials I needed in his car. These materials were
given to me by Atty. Tanada When I alighted at the Broadway
Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the
so-called destabilization plan which the latter mentioned in his sworn
statement:
Q. You mentioned in your statement taken on October 17, 1980, marked
Exhibit "G" about the so-called destabilization plan of Aquino. When you
attended the birthday party of Raul Daza wherein Jovito Salonga was also
present, was this destabilization plan as alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be present in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but then it became political. Was
there any political action taken as a result of the party?
A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal
objected without stating any ground. In sustaining the objection, the Court
said:
Sustained . . . The use of the word 'implicate' might expand the role of Mr.
Salonga. In other words, you are widening the avenue of Mr. Salonga's role
beyond the participation stated in the testimony of this witness about Mr.
Salonga, at least, as far as the evidence is concerned, I supposed, is only
being in the house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these words had to
be put in the mouth of this witness. That would be unfair to Mr. Salonga.
(TSN. July 8, 1981, p. 67)
Respondent judge further said:
COURT:
As the Court said earlier, the parts or portions affecting Salonga only refers
to the witness coming to Manila already then the matter of . . . I have gone
over the statement and there is no mention of Salonga insofar as activities in
the United States is concerned. I don't know why it concerns this cross-
examination.
ATTY. YAP:
Because according to him, it was in pursuance of the plan that he came to
Manila.
COURT:
According to him it was Aquino, Daza, and Psinakis who asked him to come
here, but Salonga was introduced only when he (Lovely) came here. Now,
the tendency of the question is also to connect Salonga to the activities in
the United States. It seems to be the thrust of the questions.
COURT:
In other words, the point of the Court as of the time when you asked him
question, the focus on Salonga was only from the time when he met Salonga
at Greenhills. It was the first time that the name of Salonga came up. There
was no mention of Salonga in the formulation of the destabilization plan as
affirmed by him. But you are bringing this up although you are only cross-
examining for Salonga as if his (Lovely's) activities in the United States
affected Salonga. (TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective
by limiting the petitioner's alleged "participation" in the bombing mission
only to the fact that petitioner's house was used as a "contact point" between
Lovely and Tañada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the
respondent judge suddenly included the "activities" of petitioner in the
United States as his basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness, Lovely, in one
of his statements declared: 'To the best of my recollection he mentioned of
some kind of violent struggle in the Philippines being most likely should
reforms be not instituted by President Marcos immediately.
It is therefore clear that the prosecution's evidence has established facts and
circumstances sufficient for a finding that excludes a Motion to Dismiss by
respondent Salonga. The Movement for Free Philippines is undoubtedly a
force born on foreign soil it appears to rely on the resources of foreign
entities, and is being (sic) on gaining ascendancy in the Philippines with the
use of force and for that purpose it has linked itself with even communist
organizations to achieve its end. It appears to rely on aliens for its supporters
and financiers.
The jump from the "contact point" theory to the conclusion of involvement
in subversive activities in the United States is not only inexplicable but
without foundation.
The respondents admit that no evidence was presented directly linking
petitioner Salonga to actual acts of violence or terrorism. There is no proof
of his direct participation in any overt acts of subversion. However, he is
tagged as a leader of subversive organizations for two reasons-
(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines
being most likely should reforms be not instituted by President Marcos
immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or
guilt by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tañada could not have
whispered to one another because the petitioner is almost totally deaf.
Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States
only on November, 1978. Senator Salonga denies having known Mr. Lovely
in the United States or in the Philippines. He states that he has hundred of
visitors from week to week in his residence but cannot recall any Victor
Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday
party in Los Angeles where Senator Salonga was a guest is not proof of
conspiracy. As stated by the petitioner, in his many years in the turbulent
world of politics, he has posed with all kinds of people in various groups
and various places and could not possibly vouch for their conduct.
Commenting on the matter, newspaper columnist Teodoro Valencia stated
that Filipinos love to pose with important visitors and the picture proves
nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner
for a group picture at a birthday party abroad, or even visit him with others
in his home, the petitioner does not thereby become a rebel or subversive,
much less a leader of a subversive group. More credible and stronger
evidence is necessary for an indictment. Nonetheless, even if we discount
the flaws in Lovely's testimony and dismiss the refutations and arguments of
the petitioner, the prosecution evidence is still inadequate to establish a
prima facie finding.
The prosecution has not come up with even a single iota of evidence which
could positively link the petitioner to any proscribed activities of the
Movement for Free Philippines or any subversive organization mentioned in
the complaint. Lovely had already testified that during the party of former
Congressman Raul Daza which was alleged to have been attended by a
number of members of the MFP, no political action was taken but only
political discussion. Furthermore, the alleged opinion of the petitioner about
the likelihood of a violent struggle here in the Philippines if reforms are not
instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam memo meretur. And as
the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer,
279 U.S. 644, " ... if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought not free thought for those who agree with us but freedom for the
thought that we hate."
We have adopted the concept that freedom of expression is a "preferred"
right and, therefore, stands on a higher level than substantive economic or
other liberties. The primacy, the high estate accorded freedom of expression
is a fundamental postulate of our constitutional system. (Gonzales v.
Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo
in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons
of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom.
Protection is especially mandated for political discussions. This Court is
particularly concerned when allegations are made that restraints have been
imposed upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the
basis of criminal indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v.
United States (394 U.S. 705), the American court distinguished between
criminal threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged in by
petitioner fits within that statutory term. For we must interpret the language
Congress chose against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust,
and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.
New York Times Co. v. Sullivan (376 U.S. 254). The language of the
political arena, like the language used in labor disputed is often vituperative
abusive, and inexact. We agree with petitioner that his only offense was a
kind of very crude offensive method of stating a political opposition to the
President.
In the case before us, there is no teaching of the moral propriety of a resort
to violence, much less an advocacy of force or a conspiracy to organize the
use of force against the duly constituted authorities. The alleged remark
about the likelihood of violent struggle unless reforms are instituted is not a
threat against the government. Nor is it even the uninhibited, robust, caustic,
or unpleasantly sharp attack which is protected by the guarantee of free
speech. Parenthetically, the American case of Brandenburg v. Ohio (395
U.S. 444) states that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such
action. The words which petitioner allegedly used according to the best
recollections of Mr. Lovely are light years away from such type of
proscribed advocacy.
Political discussion even among those opposed to the present administration
is within the protective clause of freedom of speech and expression. The
same cannot be construed as subversive activities per se or as evidence of
membership in a subversive organization. Under Presidential Decree No.
885, Section 3, paragraph 6, political discussion will only constitute, prima
facie evidence of membership in a subversive organization if such
discussion amounts to:
(6) Conferring with officers or other members of such association or
organization in furtherance of any plan or enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization. Even
if we lend credence to Lovely's testimony that a political discussion took
place at Daza's birthday party, no proof whatsoever was adduced that such
discussion was in furtherance of any plan to overthrow the government
through illegal means. The alleged opinion that violent struggle is likely
unless reforms are instituted by no means shows either advocacy of or
incitement to violence or furtherance of the objectives of a subversive
organization.
Lovely also declared that he had nothing to do with the bombing on August
22, 1980, which was the only bombing incident that occurred after his
arrival in Manila on August 20, and before the YMCA explosion on
September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified
that:
WITNESS:
Actually, it was not my intention to do some kind of bombing against the
government. My bombing mission was directed against the particular family
(referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive
assignment which Lovely was supposed to have been commissioned to
perform upon the orders of his co- accused and which was the very reason
why they answer charged in the first place. The respondent judge also asked
Lovely about the possible relation between Cabarrus and petitioner:
COURT:
Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why
did you implicate Jovito Salonga?
A. No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested
to the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents.
The respondent court should have taken these factors into consideration
before concluding that a prima facie case exists against the petitioner.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded
such credibility by the respondent judge as if they had already been proved
beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil.
216). The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process. (See People v.
Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause
it is not enough that the preliminary investigation is conducted in the sense
of making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State. More
important, it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in our country. It is, therefore, imperative upon
the fiscal or the judge as the case may be, to relieve the accused from the
pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or
opinion of the judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear dictates of
reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the hope
that some credible evidence might later turn up during trial for this would be
a flagrant violation of a basic right which the courts are created to uphold. It
bears repeating that the judiciary lives up to its mission by vitalizing and not
denigrating constitutional rights. So it has been before. It should continue to
be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).
The Court had already deliberated on this case, a consensus on the Court's
judgment had been arrived at, and a draft ponencia was circulating for
concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City
Fiscal Sergio Apostol to drop the subversion case against the petitioner.
Pursuant to instructions of the Minister of Justice, the prosecution restudied
its evidence and decided to seek the exclusion of petitioner Jovito Salonga
as one of the accused in the information filed under the questioned
resolution.
We were constrained by this action of the prosecution and the respondent
Judge to withdraw the draft ponencia from circulating for concurrences and
signatures and to place it once again in the Court's crowded agenda for
further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of
subversion charges is concerned, this decision has been rendered moot and
academic by the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is
not precluded from filing new charges for the same acts because the
petitioner has not been arraigned and double jeopardy does not apply. in that
sense, the case is not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void,
escaped from the provincial jail while his petition was pending. The petition
became moot because of his escape but we nonetheless rendered a decision
and stated:
The fact that the case is moot and academic should not preclude this
Tribunal from setting forth in language clear and unmistakable, the
obligation of fidelity on the part of lower court judges to the unequivocal
command of the Constitution that excessive bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center
of the Philippines could validly be created through an executive order was
mooted by Presidential Decree No. 15, the Center's new charter pursuant to
the President's legislative powers under martial law. Stan, this Court
discussed the constitutional mandate on the preservation and development of
Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of
the Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during
the pendency of the case, 26 petitioners were released from custody and one
withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the
petition was moot and academic did not prevent this Court in the exercise of
its symbolic function from promulgating one of the most voluminous
decisions ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case against
the petitioner, either as a co-conspirator of a destabilization plan to
overthrow the government or as an officer or leader of any subversive
organization. They have taken the initiative of dropping the charges against
the petitioner. We reiterate the rule, however, that this Court will not
validate the filing of an information based on the kind of evidence against
the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional
Trial Court, First Judicial Region, Baguio City, and FELIPE
RAMOS, respondents.

Nelson Lidua for private respondent.


NARVASA, J.:
What has given rise to the controversy at bar is the equation by the
respondent Judge of the right of an individual not to "be compelled to be a
witness against himself" accorded by Section 20, Article III of the
Constitution, with the right of any person "under investigation for the
commission of an offense . . . to remain silent and to counsel, and to be
informed of such right," granted by the same provision. The relevant facts
are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine
Airlines (PAL), assigned at its Baguio City station. It having allegedly come
to light that he was involved in irregularities in the sales of plane
tickets, 1 the PAL management notified him of an investigation to be
conducted into the matter of February 9, 1986. That investigation was
scheduled in accordance with PAL's Code of Conduct and Discipline, and
the Collective Bargaining Agreement signed by it with the Philippine
Airlines Employees' Association (PALEA) to which Ramos pertained. 2
On the day before the investigation, February 8,1986, Ramos gave to his
superiors a handwritten notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS
WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED
VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO
CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9
FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos
At the investigation of February 9, 1986, conducted by the PAL Branch
Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent
Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop
Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of
the Audit Team." Thereafter, his answers in response to questions by Cruz,
were taken down in writing. Ramos' answers were to the effect inter alia that
he had not indeed made disclosure of the tickets mentioned in the Audit
Team's findings, that the proceeds had been "misused" by him, that although
he had planned on paying back the money, he had been prevented from
doing so, "perhaps (by) shame," that he was still willing to settle his
obligation, and proferred a "compromise x x to pay on staggered basis, (and)
the amount would be known in the next investigation;" that he desired the
next investigation to be at the same place, "Baguio CTO," and that he should
be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he
was willing to sign his statement (as he in fact afterwards did). 4 How the
investigation turned out is not dealt with the parties at all; but it would seem
that no compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos
charging him with the crime of estafa allegedly committed in Baguio City
during the period from March 12, 1986 to January 29, 1987. In that place
and during that time, according to the indictment, 5 he (Ramos) —
.. with unfaithfulness and/or abuse of confidence, did then and there
willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the
following manner, to wit: said accused ... having been entrusted with and
received in trust fare tickets of passengers for one-way trip and round-trip in
the total amount of P76,700.65, with the express obligation to remit all the
proceeds of the sale, account for it and/or to return those unsold, ... once in
possession thereof and instead of complying with his obligation, with intent
to defraud, did then and there ... misappropriate, misapply and convert the
value of the tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his obligation, to the damage
and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty,"
and trial thereafter ensued. The prosecution of the case was undertaken by
lawyers of PAL under the direction and supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written
offer of evidence dated June 21, 1988,6 which included "the (above
mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986
at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as
well as his "handwritten admission x x given on February 8, 1986," also
above referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s
Evidence."7 Particularly as regards the peoples' Exhibit A, the objection was
that "said document, which appears to be a confession, was taken without
the accused being represented by a lawyer." Exhibit K was objected to "for
the same reasons interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all the
exhibits "as part of the testimony of the witnesses who testified in
connection therewith and for whatever they are worth," except Exhibits A
and K, which it rejected. His Honor declared Exhibit A "inadmissible in
evidence, it appearing that it is the statement of accused Felipe Ramos taken
on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation
conducted by the Branch Manager x x since it does not appear that the
accused was reminded of this constitutional rights to remain silent and to
have counsel, and that when he waived the same and gave his statement, it
was with the assistance actually of a counsel." He also declared inadmissible
"Exhibit K, the handwritten admission made by accused Felipe J. Ramos,
given on February 8, 1986 x x for the same reason stated in the exclusion of
Exhibit 'A' since it does not appear that the accused was assisted by counsel
when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied,
by Order dated September 14, 1988. 10 In justification of said Order,
respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce
Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v.
Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among
others, to the effect that "in custodial investigations the right to counsel may
be waived but the waiver shall not be valid unless made with the assistance
of counsel," and the explicit precept in the present Constitution that the
rights in custodial investigation "cannot be waived except in writing and in
the presence of counsel." He pointed out that the investigation of Felipe
Ramos at the PAL Baguio Station was one "for the offense of allegedly
misappropriating the proceeds of the tickets issued to him' and therefore
clearly fell "within the coverage of the constitutional provisions;" and the
fact that Ramos was not detained at the time, or the investigation was
administrative in character could not operate to except the case "from the
ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed
in the petition for certiorari and prohibition at bar, filed in this Court by the
private prosecutors in the name of the People of the Philippines. By
Resolution dated October 26, 1988, the Court required Judge Ayson and
Felipe Ramos to comment on the petition, and directed issuance of a
"TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents
from proceeding further with the trial and/or hearing of Criminal Case No.
3488-R (People ... vs. Felipe Ramos), including the issuance of any order,
decision or judgment in the aforesaid case or on any matter in relation to the
same case, now pending before the Regional Trial Court of Baguio City, Br.
6, First Judicial Region." The Court also subsequently required the Solicitor
General to comment on the petition. The comments of Judge Ayson, Felipe
Ramos, and the Solicitor General have all been filed. The Solicitor General
has made common cause with the petitioner and prays "that the petition be
given due course and thereafter judgment be rendered setting aside
respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K'
of the prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the
name of the People of the Philippines by lawyers de parte of the offended
party in the criminal action in question.
The Court deems that there has been full ventilation of the issue — of
whether or not it was grave abuse of discretion for respondent Judge to have
excluded the People's Exhibits A and K. It will now proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973
Constitution, 11 to which respondent Judge has given a construction that is
disputed by the People. The section reads as follows:
SEC. 20. No person shall be compelled to be a witness against himself Any
person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him. Any confession obtained in violation of
this section shall be inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights,
dealt with in the section, namely:
1) the right against self-incrimination — i.e., the right of a person not to be
compelled to be a witness against himself — set out in the first sentence,
which is a verbatim reproduction of Section 18, Article III of the 1935
Constitution, and is similar to that accorded by the Fifth Amendment of the
American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every
suspect "under investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the
individuality and disparateness of these rights. It has placed the rights in
separate sections. The right against self- incrimination, "No person shall be
compelled to be a witness against himself," is now embodied in Section 17,
Article III of the 1987 Constitution. The lights of a person in custodial
interrogation, which have been made more explicit, are now contained in
Section 12 of the same Article III.13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article
IV of the 1973 Constitution, is accorded to every person who gives
evidence, whether voluntarily or under compulsion of subpoena, in any
civil, criminal, or administrative proceeding. 14 The right is NOT to "be
compelled to be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15 It
prescribes an "option of refusal to answer incriminating questions and not a
prohibition of inquiry." 16 It simply secures to a witness, whether he be a
party or not, the right to refue to answer any particular incriminatory
question, i.e., one the answer to which has a tendency to incriminate him for
some crime. However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the witness. It cannot
be claimed at any other time. It does not give a witness the right to disregard
a subpoena, to decline to appear before the court at the time appointed, or to
refuse to testify altogether. The witness receiving a subpoena must obey it,
appear as required, take the stand, be sworn and answer questions. It is only
when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the
strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does
not impose on the judge, or other officer presiding over a trial, hearing or
investigation, any affirmative obligation to advise a witness of his right
against self-incrimination. It is a right that a witness knows or should know,
in accordance with the well known axiom that every one is presumed to
know the law, that ignorance of the law excuses no one. Furthermore, in the
very nature of things, neither the judge nor the witness can be expected to
know in advance the character or effect of a question to be put to the
latter. 17
The right against self-incrimination is not self- executing or automatically
operational. It must be claimed. If not claimed by or in behalf of the witness,
the protection does not come into play. It follows that the right may be
waived, expressly, or impliedly, as by a failure to claim it at the appropriate
time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right,
or better said, group of rights. These rights apply to persons "under
investigation for the commission of an offense," i.e., "suspects" under
investigation by police authorities; and this is what makes these rights
different from that embodied in the first sentence, that against self-
incrimination which, as aforestated, indiscriminately applies to any person
testifying in any proceeding, civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an
offense was not in the 1935 Constitution. It is avowedly derived from the
decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision
described as an "earthquake in the world of law enforcement." 20
Section 20 states that whenever any person is "under investigation for the
commission of an offense"--
1) he shall have the right to remain silent and to counsel, and to be informed
of such right, 21
2) nor force, violence, threat, intimidation, or any other means which vitiates
the free will shall be used against him; 22 and
3) any confession obtained in violation of x x (these rights shall be
inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards
laid down for a person in police custody, "in-custody interrogation" being
regarded as the commencement of an adversary proceeding against the
suspect. 24
He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him
throughout the interrogation. After such warnings have been given, such
opportunity afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer or make a statement. But unless and
until such warnings and waivers are demonstrated by the prosecution at the
trial, no evidence obtained as a result of interrogation can be used against
him.
The objective is to prohibit "incommunicado interrogation of individuals in
a police-dominated atmosphere, resulting in self-incriminating statement
without full warnings of constitutional rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations,"
or "in-custody interrogation of accused persons." 26 And, as this Court has
already stated, by custodial interrogation is meant "questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by this
Court." 28
.. . After a person is arrested and his custodial investigation begins a
confrontation arises which at best may be tanned unequal. The detainee is
brought to an army camp or police headquarters and there questioned and
"cross-examined" not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in strange and
unfamiliar surroundings, and every person he meets he considers hostile to
him. The investigators are well-trained and seasoned in their work. They
employ all the methods and means that experience and study have taught
them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights. And
even if they were, the intimidating and coercive presence of the officers of
the law in such an atmosphere overwhelms them into silence. Section 20 of
the Bill of Rights seeks to remedy this imbalance.
Not every statement made to the police by a person involved in some crime
is within the scope of the constitutional protection. If not made "under
custodial interrogation," or "under investigation for the commission of an
offense," the statement is not protected. Thus, in one case, 29 where a person
went to a police precinct and before any sort of investigation could be
initiated, declared that he was giving himself up for the killing of an old
woman because she was threatening to kill him by barang, or witchcraft, this
Court ruled that such a statement was admissible, compliance with the
constitutional procedure on custodial interrogation not being exigible under
the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e.,
(1) that against self-incrimination and (2) those during custodial
interrogation apply to persons under preliminary investigation or already
charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary
investigation is not under custodial interrogation. His interrogation by the
police, if any there had been would already have been ended at the time of
the filing of the criminal case in court (or the public prosecutors' office).
Hence, with respect to a defendant in a criminal case already pending in
court (or the public prosecutor's office), there is no occasion to speak of his
right while under "custodial interrogation" laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution, for
the obvious reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary
investigation before the public prosecutor), in common with all other
persons, possesses the right against self- incrimination set out in the first
sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to
refuse to answer a specific incriminatory question at the time that it is put to
him. 30
Additionally, the accused in a criminal case in court has other rights in the
matter of giving testimony or refusing to do so. An accused "occupies a
different tier of protection from an ordinary witness." Under the Rules of
Court, in all criminal prosecutions the defendant is entitled among others-
1) to be exempt from being a witness against himself, 31 and 2) to testify as
witness in his own behalf; but if he offers himself as a witness he may be
cross-examined as any other witness; however, his neglect or refusal to be a
witness shall not in any manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a
witness against himself' signifies that he cannot be compelled to testify or
produce evidence in the criminal case in which he is the accused, or one of
the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either
for the prosecution, or for a co-accused, or even for himself. 33 In other
words — unlike an ordinary witness (or a party in a civil action) who may
be compelled to testify by subpoena, having only the right to refuse to
answer a particular incriminatory question at the time it is put to him-the
defendant in a criminal action can refuse to testify altogether. He can refuse
to take the witness stand, be sworn, answer any question. 34 And, as the law
categorically states, "his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This
is his right. But if he does testify, then he "may be cross- examined as any
other witness." He may be cross-examined as to any matters stated in his
direct examination, or connected therewith . 36 He may not on cross-
examination refuse to answer any question on the ground that the answer
that he will give, or the evidence he will produce, would have a tendency to
incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be
asked a question which might incriminate him, not for the crime with which
he is charged, but for some other crime, distinct from that of which he is
accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section
20, Article IV of the 1973 Constitution (now Section 17 of the 1987
Constitution). Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse to
answer any question on the ground that he might be implicated in that crime
of murder; but he may decline to answer any particular question which
might implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently
charged with its commission in court, has the following rights in the matter
of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public
prosecutor, for preliminary investigation), but after having been taken into
custody or otherwise deprived of his liberty in some significant way, and on
being interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free will; and to
have evidence obtained in violation of these rights rejected; and
2) AFTER THE CASE IS FILED IN COURT — 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such refusal;
c) to testify in his own behalf, subject to cross-examination by the
prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which
tends to incriminate him for some crime other than that for which he is then
prosecuted.
It should by now be abundantly apparent that respondent Judge has
misapprehended the nature and import of the disparate rights set forth in
Section 20, Article IV of the 1973 Constitution. He has taken them as
applying to the same juridical situation, equating one with the other. In so
doing, he has grossly erred. To be sure, His Honor sought to substantiate his
thesis by arguments he took to be cogent and logical. The thesis was
however so far divorced from the actual and correct state of the
constitutional and legal principles involved as to make application of said
thesis to the case before him tantamount to totally unfounded, whimsical or
capricious exercise of power. His Orders were thus rendered with grave
abuse of discretion. They should be as they are hereby, annulled and set
aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not
in any sense under custodial interrogation, as the term should be properly
understood, prior to and during the administrative inquiry into the
discovered irregularities in ticket sales in which he appeared to have had a
hand. The constitutional rights of a person under custodial interrogation
under Section 20, Article IV of the 1973 Constitution did not therefore come
into play, were of no relevance to the inquiry. It is also clear, too, that
Ramos had voluntarily answered questions posed to him on the first day of
the administrative investigation, February 9, 1986 and agreed that the
proceedings should be recorded, the record having thereafter been marked
during the trial of the criminal action subsequently filed against him as
Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that
he sent to his superiors on February 8,1986, the day before the investigation,
offering to compromise his liability in the alleged irregularities, was a free
and even spontaneous act on his part. They may not be excluded on the
ground that the so-called "Miranda rights" had not been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the
violation of the right of any person against self-incrimination when the
investigation is conducted by the complaining parties, complaining
companies, or complaining employers because being interested parties,
unlike the police agencies who have no propriety or pecuniary interest to
protect, they may in their over-eagerness or zealousness bear heavily on
their hapless suspects, whether employees or not, to give statements under
an atmosphere of moral coercion, undue ascendancy and undue influence."
It suffices to draw attention to the specific and peremptory requirement of
the law that disciplinary sanctions may not be imposed on any employee by
his employer until and unless the employee has been accorded due process,
by which is meant that the latter must be informed of the offenses ascribed
to him and afforded adequate time and opportunity to explain his side. The
requirement entails the making of statements, oral or written, by the
employee under such administrative investigation in his defense, with
opportunity to solicit the assistance of counsel, or his colleagues and friends.
The employee may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in his
defense to the accusation against him, it would be absurd to reject his
statements, whether at the administrative investigation, or at a subsequent
criminal action brought against him, because he had not been accorded,
prior to his making and presenting them, his "Miranda rights" (to silence and
to counsel and to be informed thereof, etc.) which, to repeat, are relevant
only in custodial investigations. Indeed, it is self-evident that the employee's
statements, whether called "position paper," "answer," etc., are submitted by
him precisely so that they may be admitted and duly considered by the
investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the

judge's expressed apprehensions may be realized, that violence or
intimidation, undue pressure or influence be brought to bear on an employee
under investigation — or for that matter, on a person being interrogated by
another whom he has supposedly offended. In such an event, any admission
or confession wrung from the person under interrogation would be
inadmissible in evidence, on proof of the vice or defect vitiating consent, not
because of a violation of Section 20, Article IV of the 1973 Constitution, but
simply on the general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof, and
really should not be accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside

the Orders of the respondent Judge in Criminal Case No. 3488-R, dated
August 9, 1988 and September 14, 1988, and he is hereby ordered to admit
in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case
No. 3488-R, and thereafter proceed with the trial and adjudgment thereof.
The temporary restraining order of October 26, 1988 having become functus
officio, is now declared of no further force and effect.

THIRD DIVISION
[G.R. Nos. 138859-60. February 22, 2001.]
ALVAREZ ARO YUSOP, Petitioner, v. The Honorable
SANDIGANBAYAN (First Division), Respondent.
DECISION
PANGANIBAN, J.:
The right of a person to preliminary investigation is recognized by the law
and is governed by the Rules of Court. However, the failure to accord this
right does not ipso facto result in the dismissal of the information; the case
is merely suspended, and the prosecutor directed to conduct the proper
investigation.chanrob1es virtua1 1aw 1ibrary
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court,
assailing two Orders 1 of the Sandiganbayan, 2 both dated February 15,
1999. The first Order rejected the attempt of petitioner to stop his
arraignment in Criminal Case Nos. 24524-25, on the ground that he had
been denied the right to a preliminary investigation. In the assailed second
Order, the Sandiganbayan directed that a plea of not guilty be entered for all
the accused, including herein petitioner.
The Facts
Acting on an Affidavit-Complaint 3 filed by a certain Erlinda Fadri, the
Office of the Ombudsman-Mindanao issued an Order 4 dated September 19,
1995, naming the following as respondents: Benjamin Arao, Frederick
Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail
warden of Pagadian City. The Order also required respondents, within ten
days from receipt thereof, to submit their counter-affidavits and other pieces
of controverting evidence.chanrob1es virtua1 1aw 1ibrary
The Office of the Ombudsman for Mindanao issued a Resolution dated
January 15, 1998, 5 recommending the prosecution of "the aforenamed
respondents" for violation of Article 269 of the Revised Penal Code and
Section 3-a in relation to Section 3-e of Republic Act No. 3019 as amended.
Significantly, the name of Petitioner Alvarez A. Yusop was included as one
of the persons to be prosecuted, although he was not one of the original
respondents mentioned in the Order of September 19, 1995. Ombudsman
Aniano A. Desierto approved the recommendation.
Accordingly, two Informations were filed with the Sandiganbayan. They
were docketed as Criminal Case Nos. 24524 (violation of Section 3-a of RA
3019) and 24525 (unlawful arrest under Article 269 of the Revised Penal
Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in
Criminal Case No. 24524. Petitioner, however, posted a bail bond before the
Regional Trial Court of Dipolog City on May 20 of the same year. On the
same day, he filed a "Motion To Remand Case To The Ombudsman —
Mindanao For Preliminary Investigation."cralaw virtua1aw library
In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of
petitioner for his alleged failure to submit himself to the jurisdiction of the
anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on
the lack of preliminary investigation. In an Order dated September 22, 1998,
the Sandiganbayan resolved not to take action on the Motion, because
petitioner had not yet submitted himself to its jurisdiction insofar as
Criminal Case No. 24525 was concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his
claim that he had not been accorded preliminary investigation. In its two
assailed Orders, the Sandiganbayan rejected his claim and proceeded with
the arraignment.
Hence, this recourse. 6
Ruling of the Sandiganbayan
The Sandiganbayan rejected petitioner’s plea for preliminary investigation
in this wise:jgc:chanrobles.com.ph
"This morning, the accused herein appeared for arraignment duly
represented by their counsel. Before proceeding, Atty. Omar A. Rivera
appearing in behalf of accused Yusop informed this court of his reservations
about proceeding with the arraignment this morning, primarily on the
ground that accused Yusop did not undergo preliminary investigation, with
the additional claim that he had not been furnished any notice nor was he
informed of the proceedings before the Ombudsman with respect to these
cases. It would appear that one of the reasons [therefor] is that the accused
despite notice of the existence of the accusation against him in Criminal
Case No. 24525, had not given any timely notice nor any statement of any
alleged inadequacy of the proceeding regarding the filing of the Information
herein; thus, the Court is not persuaded that the claim of the accused Yusop
with regard to the inadequacy of the proceedings as against him could still
be validly entertained at this time. This is more particularly significant under
Section 27 of Republic Act 6770 and . . . Criminal Cases 24524 and 24525
refer to the same incident although the prosecution, for its part, has filed
Informations under different statutes covering the same incident. Thus, the
claim of accused Yusop that he was not notified with respect to one of the
cases on an identical set of facts herein is not [of] particular significance
since this would be indulging in a superfluity.
x       x       x
"Thus, in view of all the following, the Court will now proceed to the
arraignment of the accused herein." chanrob1es virtua1 1aw 1ibrary
The Issue
Although the parties did not specify the issue in this case, it is clear from
their submissions that they are asking this Court to resolve this question:
Whether the Sandiganbayan, despite being informed of the lack of
preliminary investigation with respect to petitioner, in Criminal Case No.
24524, committed grave abuse of discretion in proceeding with his
arraignment.
The Court’s Ruling
The Petition is meritorious in part. While petitioner is entitled to preliminary
investigation, the case against him should not be dismissed.
Main Issue:chanrob1es virtual 1aw library

Preliminary Investigation
Preliminary investigation is "an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof, and should be
held for trial." 7 The Court explained that the rationale of a preliminary
investigation is to "protect the accused from the inconvenience, expense and
burden of defending himself in a formal trial unless the reasonable
probability of his guilt shall have been first ascertained in a fairly summary
proceeding by a competent officer." 8
The Rules of Court requires such investigation before an information for an
offense punishable by at least four years, two months and one day may be
filed in court. 9 The old Rules, on the other hand, mandates preliminary
investigation of an offense cognizable by the regional trial court. 10
Petitioner is charged in Criminal Case No. 24524 with violation of Section
3-a of RA 3019. Such offense is punishable with among other penalties,
imprisonment of six years and one month to fifteen years. 11 Under the
aforecited Rules, whether in the old or the revised version, he is entitled to a
preliminary investigation.
It is undisputed, however, that before the Information against petitioner was
filed, no preliminary investigation had been conducted. In fact, the Office of
the Ombudsman admitted that "petitioner was denied of his right to
preliminary investigation." 12
We find no basis for the Sandiganbayan’s ruling that petitioner "had not
given timely notice nor any statement of the alleged inadequacy of the
proceeding regarding the filing of the Information."cralaw virtua1aw library
First, there was no showing that petitioner was notified of the charges filed
by Erlinda Fadri. As earlier noted, he had not been named as a respondent in
the September 19, 1995 Order of the Office of the Ombudsman in
Mindanao. His name did not even appear in the caption of its January 15,
1998 Resolution, 13 which recommended the filing of charges against the
accused. Indeed, in his Compliance with the August 26, 1998
Sandiganbayan Resolution, 14 Special Prosecution Officer Diosdado V.
Calonge manifested that petitioner "was not notified of the proceedings of
the preliminary investigation and was accordingly not given the opportunity
to be heard thereon." 15
After learning of the filing of the Information against him when he was
served a Warrant of Arrest, petitioner did not dally. He immediately
informed the Sandiganbayan that no preliminary investigation had been
conducted in regard to him. Several months later, moments before his
arraignment, he reiterated his prayer that the preliminary investigation be
conducted. In this light, the Sandiganbayan erred in saying that he had not
given the court timely notice of this deficiency.cralawlibrary : red
Even assuming that prior to the filing of the Information,. petitioner had
known that the proceedings and the investigation against his co-accused
were pending, he cannot be expected to know of the investigator’s
subsequent act of charging him. Precisely, he had not been previously
included therein and, consequently, he had not been notified thereof.
In Go v. Court of Appeals, 16 this Court held that "the right to preliminary
investigation is waived when the accused fails to invoke it before or at the
time of entering a plea at arraignment." Conversely, if the accused does
invoke it before arraignment, as the petitioner did in this case, the right is
not waived.
Neither did the filing of a bail bond constitute a waiver of petitioner’s right
to preliminary investigation. Under Section 26, Rule 114 of the Revised
Rules of Criminal Procedure," [a]n application for or admission to bail shall
not bar the accused from challenging the validity of his arrest or the legality
of the warrant issued therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. . . ."cralaw virtua1aw
library
We stress that the right to preliminary investigation is substantive, not
merely formal or technical. To deny it to petitioner would deprive him of the
full measure of his right to due process. 17 Hence, preliminary investigation
with regard to him must be conducted.
We disagree with the Sandiganbayan’s reliance on Section 27 of Republic
Act 6770. 18 This provision cannot justify the evasion of the requirement set
forth in the Rules of Court for conducting preliminary investigation. The
law does not sanction such interpretation, for it deals merely with the
finality of orders, directives and decisions of the Office of the Ombudsman
— not the deprivation of the substantive right to a preliminary investigation.
Moreover, petitioner cannot be bound by the Ombudsman’s January 15,
1998 Resolution, which recommended the filing of charges. He was not a
party to the case and was not accorded any right to present evidence on his
behalf.
In any event, even the Ombudsman agrees that petitioner was deprived of
this right and believes that the former "has the duty . . . to see to it that the
basic rudiments of due process are complied with." 19 For its part, the
Sandiganbayan opted to remain silent when asked by this Court to comment
on the Petition.
Dismissal of the Charges
Not Justified
Petitioner also prays that the cases against him be dismissed for lack of
preliminary investigation. 20 We disagree. In the first place, nowhere in the
Revised Rules of Criminal Procedure, or even the old Rules, is there any
mention that this lack is a ground for a motion to quash. 21 Furthermore, it
has been held that responsibility for the "absence of a preliminary
investigation does not go to the jurisdiction of the court but merely to the
regularity of the proceedings." 22 We reiterate the following ruling of the
Court in People v. Gomez:chanrob1es virtua1 1aw 1ibrary
"If there were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court to their absence, the
court, instead of dismissing the information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the inferior
court so that the preliminary investigation may be conducted." 23
In sum, Criminal Case No. 24524 must be suspended with respect to
petitioner even if the case is already undergoing trial, because" [t]o reach
any other conclusion here, that is, to hold that petitioner’s rights to a
preliminary investigation and to bail were effectively obliterated by
evidence subsequently admitted into the record would be to legitimize the
deprivation of due process and to permit the government to benefit from its
own wrong or culpable omission and effectively to dilute important rights of
accused persons well-nigh to the vanishing point." 24
WHEREFORE, the Petition is partially GRANTED. The assailed Orders are
REVERSED, and the Office of the Ombudsman is hereby ORDERED to
conduct forthwith a preliminary investigation of the charge of violation of
Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on
the merits of Criminal Case No. 24524 shall be SUSPENDED in regard to
petitioner until the conclusion of the preliminary investigation. No
pronouncement as to costs.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.