Saturday, September 8, 2012

PEOPLE V. FERRER (1972)

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,


vs.


HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,
1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2 A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to
rule-making
6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist
Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization.

during or for five years after the termination of his membership in the Communist Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:

The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence."

We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder."
31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States.

... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to the legislative judgment — will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is
extensive.
39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:

And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the


Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case." 12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability — members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Footnotes

1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The text of the statute is hereunder reproduced in full:

"AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND SIMILAR ASSOCIATIONS PENALIZING MEMBERSHIP THEREIN, AND FOR OTHER PURPOSES.

"WHEREAS, the Communist Party of the Philippines, although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control;

"WHEREAS, the continued existence and activities of the Communist Party of the Philippines constitutes a clear, present and grave danger to the security of the Philippines; and

"WHEREAS, in the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with this continuing menace to the freedom and security of the country: Now, therefore,

"Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

"Section 1. This Act shall be known as Anti-Subversion Act.

"Section 2. The Congress hereby declares the Communist Party of the Philippines to be an organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose of establishing in the Philippines a totalitarian regime and place the Government under the control and domination of an alien power. The said party and any other organization having the same purpose and their successors are hereby declared illegal and outlawed.

Section 3. As used in this Act, the term 'Communist Party of the Philippines' shall me and and include the organizations now known as the Communist Party of the Philippines and its military arm, the Hukbong Mapagpalayang Bayan, formerly known as HUKBALAHAPS, and any successors of such organizations.

"Section 4. After the approval of this Act, whoever knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines and/or its successor or of any subversive association as defined in section two hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported immediately after he shall have served the sentence imposed upon him: Provided, That if such member is an officer or a ranking leader of the Communist Party of the Philippines or of any subversive association as defined in section two hereof, or if such member takes up arms against the Government he shall be punished by prision mayor to deal with all the accessory penalties provided therefor in the Revised Penal Code: And provided, finally, That one who conspires with any other person to overthrow the Government of the Republic of the Philippines or the government of any of its political subdivisions by force, violence, deceit, subversion or other illegal means, for the purpose of placing such Government or political subdivision under the control and domination of any alien power, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same Code.

"Section 5. No prosecution under this Act shall be made unless the city or provincial fiscal, or any special attorney or prosecutor duly designated by the Secretary of Justice as the case may be, finds after due investigation of the facts, that a prima facie case for violation of this Act exists against the accused, and thereafter presents an information in court against the said accused in due form, and certifies under oath that he has conducted a proper preliminary investigation thereof, with notice, whenever it is possible to give the same, to the party concerned, who shall have the right to be represented by counsel, to testify, to have compulsory process for obtaining witness in his favor, and to cross-examine witnesses against him: Provided, That the preliminary investigation of any offense defined and penalized herein by prision mayor to death shall be conducted by the property Court of First Instance.

"Section 6. Any person who knowingly furnishes false evidence in any action brought under this Act shall be punished by prision correccional.

"Section 7. No person shall be convicted of any of the offenses penalized herein with prision mayor to death unless on the testimony of at least two witnesses to the same overt act or on confession of the accused in open court.

"Section 8. Within thirty days after the approval of this Act, any person who is a member of the Communist Party of the Philippines or of any such association or conspiracy, who desires to renounce such membership may do so in writing and under oath before a municipal or city mayor, a provincial governor, or a person authorized by law to administer oaths. Such renunciation shall exempt such person or persons from the penal sanction of this Act, but the same shall in no way exempt him from liability for criminal acts or for any violation of the existing laws of the Republic of the Philippines committed before this Act takes effect.

"Section 9. Nothing in this Act shall be interpreted as a restriction to freedom of thought, of assembly and of association for purposes not contrary to law as guaranteed by the Constitution.

"Approved, June 20, 1957."

2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention) referred to the Anglo-American origin of this right thus:

"No ex post facto law or bill of attainder shall be enacted. This provision is found in the American Federal Constitution (Art. 1, Sec. 9) and is applicable to the States (id. Sec. 10). An ex post facto law is a law which makes an act punishable in a manner in which it was not punishable when committed. It creates or aggravates the crime or increases the punishment, or changes the rules of evidence for the purpose of conviction. The prohibition against the passage of ex post facto laws is an additional bulwark of personal security — protecting the citizen from punishment by legislative act which has a retrospective operation.

"The phrase ex post facto has a technical meaning and refers to crimes and criminal proceedings. It is in this sense that it was used in England. It was in this sense that the convention of 1787 understood it. (Calder v. Bull, supra; Watson v. Mercer, 8 Pet. 88, 110; Suterlee v. Mathewson, 2 Peters, 380; Kring v. Missouri, 107 U.S. 221.) This interpretation was upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.).

"A bill of attainder is a legislative act which inflicts punishment without judicial trial. (Cummings vs. United States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of Attainder was an act of Parliament by which a man was tried, convicted and sentenced to death without a jury, without a hearing in court, without hearing the witnesses against him and without regard to the rules of evidence. His blood was attained or corrupted, rendering him devoid of all heritable quality — of acquiring and disposing property by descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the penalty imposed was less than death, the act was known as a "bill of pains and penalties." Bills of attainder, like ex post facto laws, were favorite methods of Stuart oppression. Once, the name of Thomas Jefferson was included in a bill of attainder presented to Parliament because of his reform activities.

"Often, such bills were 'stimulated by ambition or personal resentment, and vindictive malice.' (Calder v. Bull, supra.) A well known case illustrating the ruthless manner in which a bill of attainder was resorted to was that of Thomas Wentworth, chief adviser of Charles I. He was brought to impeachment charged with attempting to subvert the liberties of England. He defended himself so ably that his enemies, fearing his acquittal, withdrew the impeachment and a bill of attainder was passed instead. Wentworth was beheaded. Bills of attainder were also passed in the Colonies (North, The Constitution of the U.S., its Sources and Applications, p. 85.) The prohibition in the Bill of Rights, therefore, seeks to present acts of violence and injustice brought about the passage of such bills." (3 J. Laurel, Proceedings of the Constitutional Convention 661-663 [1966]).

3 Cummings vs. United States, 4 Wall. (71 U.S.) 277 (1867); accord, Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867). This definition was adopted by this Court in People vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs. Montenegro, 91 Phil. 883,885 (1952).

4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United States vs. Lovett, 328 U.S. 303, 615, (1946).

5 Chief Justice Warren referred to the Bill of Attainder Chause as an implementation of the separation of powers, "a general safeguard against legislative exercise of judicial function, or more simply, trial by legislature." United States vs. Brown, 381 U.S. 437 (1964).

6 "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." Fletcher vs. Peck, 6 Cranch (10 U.S.)87, 136 (1810).

7 "The legislative body in enacting bills of attainder exercises the powers and office of judge, it pronounces upon the guilt of the party, without any of the forms or safeguards of trial...it fixes the degree of punishment in accordance with its own notions of the enormity of the offense." Cummings vs. Missouri, supra note 3.

8 Bills of this sort, says Mr. Justice Story, have been most usually passed in England in times of rebellion or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well as free as the enslabe) to forget their duties, and to trample upon the rights and liberties of others." Comm. sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During the American revolution legislative punishments had been continued by state legislatures, when numerous bills of attainder were enacted against the Torries. 1C. Antieu, Modern Constitutional Law, 425.

9 C. Antieu, supra note 8 at 423.

10 The Supreme Court of the United States said in Fleming vs. Nestor, 363 U.S. 603, 613-14 (1960):

"In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected."

11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).

12 381 U.S. 437 (1965) (5-4 vote).

13 Keyishian vs. Board of Regents, 385 U.S. 589 (1967);Elfbrandt vs. Russell, 384 U.S. 11 (1966).

14 Cf . Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United States, 367 U.S. 290 (1961).

15 During the Senate deliberations on the bill, Senator Cea remarked: "I have inserted the words 'overt acts' because we are punishing membership in the Communist Party. I would like that membership to be proved by overt acts, by positive acts, because it may happen that one's name may appear in the list of members." Senate Cong. Rec. May 22, 1957, p. 1900.

16 Board of Governors of Federal Reserve System vs. Agnew, 329 U.S. 441.

17 New York ex rel. Bryant vs. Zimmerman, 278 U.S. 63(1928).

18 Repealed by Rep. Act 4241.

19 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor, Feb. 27, 1969, 27 SCRA 40.

20 United States vs. Lovett, 328 U.S. 303 (1946).

21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).

22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).

23 United States vs. Lovett, 328 U.S. 303 (1946).

24 United States vs. Brown, 381 U.S. 437 (1965).

25 The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L. J. 330, 351-54(1962).

26 278 U.S. 63 (1928).

27 Id. at 75-77.

28 People vs. Evangelista, 57 Phil. 375 (1932); see also People vs. Evangelista, 57 Phil., 372 (1932); People vs. Capadocia, 57 Phil. 364 (1932); People vs. Evangelista, 57 Phil. 354 (1932); People vs. Feleo, 57 Phil. 451 (1932); People vs. nabong, 57 Phil. 455 (1932).

29 People vs. Lava, L-4974-78, May 16, 1969.

30 L-33864, Dec. 11, 1971, 42 SCRA 448.

31 United States vs. Lovett, 328 U.S. 303, 318 (1946).

32 341 U.S. 716 (1951).

33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1960).

34 Sec. 8.

35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-25721, May 26, 1969, 28 SCRA 351.

36 Freund, Review of Facts in Constitutional Cases, in Supreme Court and Supreme Law 47-48 (Cahn ed. 1954).

37 291 U.S. 502, 537 (1934).

38 L-33964, Dec. 11, 1971, 41 SCRA 448.

39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).

40 Dennis vs. United States, 341 U.S. 494, 509 (1951).

41 Id. at 501.

42 Shelton vs. Tucker, 364 U.s. 479 (1960).

43 Scales vs. United States, 367 U.S. 203 (1961); see also Noto vs. United States, 367 U.S. 290 (1961).

44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir. 1952).

45 People vs. nabong, 57 Phil. 455, 458 (1932).

46 18 U.S.C. sec. 2385. (emphasis added).

47 367 U.S. 203 (1961).

48 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1961).

49 P. A. Freud, The Supreme Court of the United States 75 (1961).

50 Const., art VI, Sec. 21 (1).

51 Government vs. Hongkong & Shaihai Banking Corp., 66 Phil. 483 (1938).

52 Lindasan vs. Commission on Elections, L-28089, Oct. 25, 1967, 21 SCRA 496.

FERNANDO, J., concurring:

1 Rep. Act No. 1700 (1957)..

2 According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill of attainder shall be enacted."

3 According to Art. III, Sec. 1, par. 8: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peacebly to assemble and petition the Government for redress of grievances."

4 According to Art. III, Sec. 1 par. 4: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired."

5 Footnote 2, p. 9 of Opinion of the Court.

6 4 Wall. 277 (1867).

7 4 Wall. 333 (1867).

8 Cf. United States v. A Lovett, 328 US 303 )1946).

9 4 Wall. 277 (1867).

10 Ibid, 323, 325.

11 4 Wall. 333 (1867).

12 Ibid, 377-378.

13 328 US 303.

14 Ibid, 315-316.

15 381 US 437.

16 Ibid, 442.

17 Ibid, 449-450.

18 367 US 1 (1961).

19 Ibid, 86-87.

20 Opinion of the Court, p. 15.

21 According to Art. III, Sec. 1, par. 6: "The right to form associations or societies for purposes not contrary to law shall not be abridged." Paragraph 8 of this section reads as follows: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peacebly to assemble and petition the Government for redress of grievances."

22 Jefferson's First Instance Address, March 4, 1801, in Padover, ed., The Complete Jefferson, 385 (1943).

23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).

24 Gonzalez v. Commission on Elections, 27 SCRA 835,871(1969) citing Shelton v. Tucker, 364 US 479 (1960) and NAACP v. Button, 371 US 415 (1963).

25 NAACP vs. Alabama, 377 US 288 (1964).

26 Communist Party v. Subversive Activities Control Board, 367 US 1, 148.

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