plj volume 46 number 2 -01- pacifico a. agabin - political law - part one p191-232

8/11/2019 PLJ Volume 46 Number 2 -01- Pacifico a. Agabin - Political Law - Part One p191-232

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POLITIC L LAW PART ONE

CONSTITUTION L L W

Pacifico A. A ga bin ':'

I JUDICIAL REV EW AS POLITICS : THE SUPREME COURT

AND ITS LEGITIMATING FUNCTION

t was Prof. Charles L. Black , J1'. who first artic ulated the politicaljustification for judicial review: namely , that the Supreme Court performsnot only a checking function but also a leg itimating one. 1 Judicial review ,as he sees it, p erforms not only the function of invalidating unconstitutionallegislation, but it may also st 'mp its imprimat ur on sta tute law as withincongressional po wer and that it d oes not violate any constitutional limitations.

The l egitimating function is, of oourse , one side of the dice of judicialreview . t is, in fact, the more conspicuous side here in the Philippines ,where the dic e is loaded in favor of maj or itarian democracy. The loading is in the form of the 2 / 3 vote requirement to declare a law unconstitutional.2 This provisi on in ,our Constitution was intended by the delegates to the 1934 Convention as a majoritarian counterforce to the powerof the Court to sit as a super legislature and review the acts passed byCongress. Profiting from the experience of the United State s at the beginning of the New Deal era , the delegates to the Convention wanted toinsure that th e Court would not stand in the wa y of needed social and 'eco

nomic le gislation by me ans of its power of judicial review. The politicalprem ise on which the 2 / 3 vote requirement is based 'is , as stated by Alexander Bickel , judicial review is a cOllnter-majoritarian force in our system. 3

Accent on the pas sive v irtu es

I t was thus that , in 1970, the Supreme Court performed its legitimatingfunction to th e hilt in resisting constitutional challenges against the Con-

' A ssis tanl Pr ofesso r Co lle ge of Law , Univer sity of the Philippines and FacultyEdit or Philippine L a w Journ al.

1 BL AC K, T H E P E OP L E AND THE COURT 84 (1960) .2 CaNST., art. VIII, sec. 10 .3 BICK EL , Th e Least Dan ge rou s Bran ch: Th e Supr em Court a t th e Bar of Politic s

6 1962) .


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192 PHILIPPINE LAW JOURNAL [VOL. 46

st ituti ona l Convention Act ( R epubl ic Act 6132) and oth er laws . In upholdin g the val idit y of challenged provi sio ns of th e Constitutional ConventionAct, th e Court had t o fall back on th e pas sive virtu e s judicial restraintand judicial recognit ion of the competence of the leg isla tur e to p ro posesolutions to th e problems of the b ody politic.

Th us in Bad oy v. Ferrer 4 where the peti tioner assai led as uncons tituti ona l as in vio la ti on of freedom of expression Section 12(F) of Republic Act No. 6132, the prevailing opinion decla red:

Gauge d by the more liber al 'ba la nc ing -of-inter est te st', We must exercise judicial restrai nt in passing upon the statute challenge,d as uncon

stitution a lly e ncro ac hin g upon th e realm of free expression a nd he a rk ento the cauti'on pr o nounced by Mr. Ju stice Frankfurter in hi s concurringopi ni on in Denni s; vs . U.S. that 'free spe ech cases are not an exceptionto the principle that we are not legislator s that direct policymaking isnot our province. How ~ to reconcile com petin g intere sts is the busine ss of the leg,islat llre and the ba la nce th ey s trike is a judgment not to bedi spl a ced by ours , but to be respected, llnless outside the pale of fair jud g-ment.' ' ' 5

n almost th e same breath , the majority then w ent o n to remind their disse ntin g co lleag ues tb at:

The agency of the State in fas hioning instrum ents to generate thegrea test good for the grea test number under our pre sent po l itical sys temis Congress , as a constituent assembly toge th er with the elec to r a te inthe formu lation of the organic law, or Congres s with the Pres identin the exerc ise of its ordinary law- m aki ng power for the en actment ofstatut es des igne d to solve th e problems th at ur gentl y p'fess for panaceas . . .

In Imb ong v . errel} the majority of the Court reminded th eir colleagues of the obiter in G on z a les v Comel ec 7 that they must give due recognition to the legisl a tiv e conc ern to cleanse , and if possible , render spotless,the electoral process and th at in the choice of remedies for an admittedmalady r equirin g governmental ac tion , on th e leg islatur e primarily rests theresponsibility.

t was in tb e case of D el R osa rio v Carbonell where a unanimous

co ur t exercised judi cial restraint by resorting to th e doctrine of politicalquestion.

Tbe case was filed by an intere sted Citizen wbo, however, did not indicate th at he was a prospective candidate for th e Constitutional Conventionnor did he allege member ship of any organi za tion whose rights may be impaired by Section 6(a) , par. 5 and Section 8(a) of Con st itutional Conven-


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1971] POLITICAL LAW 193

tion Act, which he challenged as oppressive. The petrtroner assailed theappropriation ofP29 million in Section 21 of the Act as simply a wasteof public funds, because, according to him, no time limit for the durationof the Constitutional Convention is set, and thus the Convention may dis-

sipate ' its time in pointle ss discussion without reaching any conclusion.Answering his contention , the court said that with respect to the charge

that Congress abdicated its p ower as a constituent body to propose amend-ments in favor of the Constitutional Convention , this is refuted by ArticleXV of the Constitution which authorizes Congress sitting as a ConstituentAssembly either to propose amendments or to call a convention for thepurpose. Invoking the doctrine of po litical question," 9 the Court stated

that the choice of either alte rnative is solely committed to Congress whichcannot be interfered with by the Supreme Court. Whether there is necessityfor amending the Constitution is also addressed to the wise judgment ofCongress , acting as a Constituent Assembly, against which the court cannotpit its own judgment, continued the Court.

Thus, a rule of political wisdom although of dubious constitutional logichas served the Court in good stead in legitimating other provisions of theConstitutional Convention Act.

II PURIFYING THE ELECTORAL PRO CESS AND THE

FREE SPEECH ISSUE

The legitimating function of the Court is most difficult when it tacklesthe issue of freedom of speech, because in this area of judicial review the

preferred freedoms are balanced against legitimate social interests that callfor protection from the legislature and the courts. This problem is what,in fact, separates the liberals from the libertarians.

n perspective, laws prohibiting corrupt or immoral election practicesare calculated to protect the electoral process from the evil effects of moneycleverly utilized during elections to manipulate political consent. Such lawswe, in fact, attempts on the part of the Congress to stem the influence of

9 This doctrine is traced as far back as the old Ameri .ca n case of ut er v Bordell7 How. 1, 12 L. Ed. 581 (1849), which arose out of the circumstances of Dorr'sRebellion in Rhode Island in 1842. The dissident group, dissatisfied with the state'soutmoded constitution , 3ttempted to se t it se lf np as the legitimate government of thestate under a new constitution . The Supreme Court was asked to determine whichwas the legal government, out the court refused in the following terms: "While theSupreme Court should always be ready to meet any question confided t o it by the

ll d b d h


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1 J71J POLITI CAL LAW 195

of all lhc oth er candidates with cq ual prominencc. Th e resolution as amc nd edprovide,,:

( 6 ) Outside of the Come lec Space, x x x it shall be unlawful for an ynewspaper, magazine or periodica l to print o r pUblish or tause to be

priate< or published any advertisement, paid comment or paid article Infurth era nce of or in opposition to the ca ndidacy of any person for delegate , or mentioning the name of any c:mdidl te and the fac t of his candidacy, unless all the names of a ll the other candidates in the disltictin which the candidate mentioned. is running a re a lso mentioned wi'th equalprominence. x x x

On the iss ue of freedom of expr ess ion, the maj o rit y o f th e Cou rt sa idthat this fre edo m is not immune to regul at io ns by the State in the exe rciseof its police power. Th e validity of the abr idgme nt is ga uged by the ex tentof its inroa d into th e dom a in o f th e libe rt y of s peec h an d of t he press,when su bjecte d to the applicable clear-nnd-present dange r rule o r th e balaneing-of-intcr es ts test. [ the restriction on the invaded freedom is sonarrow tha t th e basic liberty remains, the n the limitat ion is co nsti tut ional.

Th e co urt went to say th at as long as the author of lh e publicat ionis a juridical pers on or an organ ized group o[ persons of whatever nature,wheth e r in th e busi ness of publishing a news paper, magazine or period ica lonly f or thi s pa rt ic ular e lect ion or not, any ad vert ise ment or article pu blishedfor or aga inst an y ca nd idate, pai d or unpaid by sai d publisher , is prohibitedas a n orga niz ed g ro up und er par. I of Section 8 A) of the Co nst ituti ona lConvent ion Act.

The Co urt pointed o ut th at und er par. F of Sectio n 12, th e mo neye dcanffidate or individua l who can i1lTo rd to p:1y for advertisemen ts, co mm ent s

or article s in fav or of his ca ndid acy or agai nst th e ca ndid acy of an oth e r,is required to mention all the ot her ca ndid ates in the sa mC di str ict wi thequal prominence. to exempt him from the penal sn nclion of the law . Th epurpos e of this limitatio n is to give th e pO x ca ndid a tes a fi ght ing c han cein th e election, sa id th e Court. l [ the wea lthy ca ndidat e o r th e o ne wh ocan afford o nly to m ee l th e ca mp aign expenses for his o wn candid acy alo ne,is di scoura ged thereby to pay fo r a ny ca mpa ign advertisement, comment or

article in his fav or, th en th e parity of chanc es in win nin g the e lec tion am ongth e poor and the rich ea ndid il tes is funh e r en han ce d , observed th e co urt.Th e restricti on in par. F of Sec tion 12 th ere for e is o ne of th e m easuresdevised by law to pr ese rve s uffr age pure a nd und efi led and to achi eve thedesired equality of chances among all the candidates. T hu s. acco rdin g tothe Court , the restriction on th e free do m of express ion a ppears too insigni


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196 PHiUPPINE LAW JOURNAL [VOL. 46

less restrictive than in the prohibition in Republic Act No. 4880 which wasnot declared uncon stitutional by the court.

The fears and appre hensions of petitioner concerning his libertyof expression in these two ca ses, applying the le ss stringent balancing-ofinterests criterion, are far outweighed by the all important substantiveinterests of the State to preserve the puraty of the ballot and to rendermore meaningful and real Ibe guarantee of the equal protection of laws.

The prevailing opinion was written by Justi'ce Makasiar, conc u rred inby Justic es J.B.L. Reyes , Dizon and Castro. Justice Makalintal wrote a separate concurring opinion. On the other side, Justic e Fernando wrote a dissenting opinion, concurred in by Justices Zaldivar and Villamor. Justice

Teehankee and Barredo also wrote separate dissents. Thus, the voting .onthe constitutionality of Section 12(F) was stalemated at 5-5, as Chief Justice Roberto Concepcion was on leave and did not take part.

The Fernando dissent rested on the proposition that the clear andpresent danger test has not been met. 1 cannot resist the concl usion, wrote Justice Fernando, that , on its (Sec. 12(f) ) face, there is an abridgment of press freedom. t was point ed out that the task of the law in

mee ting the standard was not lightened by th e fact that what was soughtt o be restricted was the right to disseminate political information which,und er .our hierarchy of values, enjoys a mueh greater immunity. JusticeFernando emphasized , leaning mostly on American citations, the indispensabi lity of free speech in a free society.

Justic e Fernando admit s that the e vil feared is substantial and if itcould be m et it sho uld be met by legisl at ion which is not at war with theconstitution al command against the abridgment of press freedom. This,of cours e, already assumes th at the provision in question is at war withthe free speec h clause , which is the problem in issue. His succeed in g statement th at the problem of excessive spending could be met by th e P32 OOOlimit or expenses is belied by the experience of the Philippin es a nd of theUnit ed States in their failure .to regulate campaign spending by means ofstatutory ceilings.

Th e second di ssent by Justice Teehankee underlines the necessity ofelec tion s und er our form of government and the need for full and free discussion of pubJic issu es.13

Without freedom to circulate, through .the public media, informatio nand within th e legally permissible limit for campaign expenditures, a candidate's qualification s an d specific platform as well as to denounce the deficienci es and def ects of an o pp onent and his program, the cons ti tu.tional


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Justice Teehankee's opinion turns the tables on the prevailing opinion 'sargument of equality. He not es the plight typical of the overwhelmingmajority ,of the earnest candidates who wish to serve as delegates-lll1knownand without previous public exposure, alone and without support of anypolitic al party or machine or political leader but perhaps worthy and deserving-who wants to actively pursue his candidacy and asks only that he begiven an opportunity to equalize his chances by being allowed, within hismeans and . . . etc. . . .

Justice Teehankee parts with his co -diss entient, Justice Fernando-, inimpugning the use of th e clear-and-present danger test in this case. CitingProf . Freund , he says:

I do not believe th at the main opinion 's anchoring of its rulin gon the 'clear-and-present danger ' criterion is tenable under the circumstances. The trouble is, as Professor Freund well put it, 'that the clearand pre sen t-da nger te st is an oversimplified jud gment unless ,it takes account also of a number of other factors: the relative serious ness of thedanger in comparison with the value of the occasion for speech or politicalactivity; the availability of more moderate control than tho se which thestate ha s crmposed; a nd perhaps the specific inten t with which the speec hOf activity is launched. No matter how rapidly we utter the phrase'clear and present danger', or how closely we hyphen ate the words, theyare not substitute for the weighing of values. They tend to convey adelusion of certitude when what is most certain s the complexity of thestrands in the web of freedoms that the judge must disentangle. 14

Justice Teehallkee would rather app ly the balancing-of-interests testas synthesized by Ju stice Castro in the Gonzales 15 case. He would alsoanchor his dissent on th e test of reasonableness required by the due processclause. This is the test which, accor d ing to him, the law fails t i meet. T hemeans employed and the strictness decreed strongly tend to defea.t, ratherthan promote, the very objectives of the Act of pre venting perversion ofthe electoral process and 'max imizing, if nat approxim ati ng equality ofchances among the various candidates.' ' '

Justice Barredo , while recognizing the necessity of purifyin g elec toralcampaign pr actices, stated that he does not believe in impo-sing upon therich candid ate s more restrictions in their liberties, just because they are richwhich is not a sin, than the limitation of their expenses and those on theirbehalf to not more than P32 , . He decries the clement of compulSionin the law, saying:

T here is an element of odiou s compulsion in this prOVISIon for itmake s it unlawful and punishable with ~ m p r j s on m n tand other acces


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he a dverti ses his own candidacy. t is perhaps not far beyond reasonableness to re strict the adve rti seme nt s of a candidate i l l the interest of remedying an evil Congress may recognize, but it is to me :;learly unreasonable,nay, unju st and oppres sive, to compel a ca ndid ate n ot only to give quarters

to his adversary, but to pr ac tically help the latter by givin g hi s nameequal prominence as hi s own. t must be borne in mind that the pr1maryobjective of a candidate in an election is to win over hi s opponents -a ndto require him , under pain of suffering impri sonment and / or other penalties , to spend his own money in order precisely that his opponents may bepublicized with equal prominence as himself i s, to my mind , an intolerableinfringement of one's freedom to pursue a le gitimate objective by ordinarilylawful mean s. 16

The best approach to this difficult problem is exemp lified in the dissent of Justice Teehankee, who pointed .out that the provision in questionis double-bladed and is n ot an unmitigated good. n such situations, thedangers of the cure must be weighed against the d angers of the disease.The loss to the body politic and the candidates sought to be prohibitedfrom airing their views outw eighs the benefits, if any, .obtained by theprohibition against excessive spending, for:

(T)he mo st complete exercise of those rights .is essential to thefull, fai'r and untrammeled operation of the electoral process. To theextent they are curtailed the electorate is deprived of information, knowledge , and opinion vital to its functio n. 17

Apart from the prohibition against undue publicity, the second im-portant prohibition in the Constitutional Convention Act challenged lastyear was the provision prohibiting any group from supporting any candidate

for delegate to the convention. Paragraph 1 of Section 8(a) 18 of the Constitutional Convention Act was impugn ed by petitioners of the case ofImbon g v. F e rrer as violative of the constitutional guarantees of due process,equa l protection of the laws , freedom of expression, freedom of assemblyand freedom of associati.on. The majority of the Court, however, upheldthe validity of the act against this multi-pronged attack by petitioners.With respect to the ban against all political parties or organized groupsof whatever nature contained in paragraph 1 of Section 8 (a) of the Act,the court not ed that the provision permits the candidate to utilize in hiscampaign the help of members of his family and a campaign staff of notmore than one for every 10 precincts in his district. t allows the full

16 Ibid .17 Ju stice Rutledge , concurring in U.S. v. CI O supra note 10 at 144 .

8 Par 1 of Section 8(a) Rep Act No 6132 (1970) prohibits: (1) any can


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expression of his freedom of expression and his right to peaceful assembly,because he cannot be denied any permit to hold a public meeting on thepretext that the provision in said section mayor will be violated, stated thecourt. The right of a member of any political party or association to

support him or oppose his opponent is preserved as long as such memberacts individually, and the very party or organization to which he may belong or which may be in sympathy with the cause or program of reformsis guaranteed the right to disseminate information about , to arouse publicinterest in, or to advocate for constitutional reforms, programs policies orconstitutional proposal f or amendments, continued the majority. The Courtcame to the conclusion therefore that ihe restriction contained in Section8 a) of the Constitutional Convention Act is so narrow that the basic constitutional rights of free assembly and expression remained substantiallyintact and inviolate.

The Court cited the case of Gonzales v Commission on Elections 19whereby the Court unanimously sustained the validity of the limitation onthe period for nomination of candidates contained in Section 50-A of Republic Act No. 4880. n analogizing the limitation imposed by the Constitutional Act with that imposed by Republic Act No. 4880, the majority

opinion stated that debasement of electoral process as a substantive evilexists today and is one of the major compelling interests that moved Congress to prescribe the total ban against all organizations in Paragraph 1of Section 8 a) of the Constitutional Convention Act. The majority opinionadverted to the opinion of the Gon zales case citing the clear and presentdanger of excessive partnership, dishonesty and corruption as well as violencethat of lat e has marked election campaigns and partisan political aCtivitiesin the country.

The Court in justifying the wisdom of the prohibition cited not onlythe clear and imminent danger of debasement of the electoral process, butit also justifi ed this to assure the candidates equal protection of the lawsby according them equality of opportunity. According to the Court, theprimary purpose of the prohibition is to avert the clear and present dangerof another substantive evil, which is the denial of equal protection of thelaws to all candidates. The candidates must depend on their individual

merits and not on the support of political parties or organizations, said theCourt, and it went on to cite the views of three sponsoring senators thatunde r this prohibition of the Constitutional Convention Act , the poor candidate has an even chance as against the rich candidate. The Court statedthat the guarantee of social justice includes the guarantee of equal opportunity , equality of political rights, and equality befor e the law, citing theopinion of Justice Tuason in Guid o Rural Progress Administration 20


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200 PHILIPPINE LAW JOURNAL [VOL . 46

The majority of the Court the n went on 10 say that Paragra ph 1 ofSection 8(11) of th e law docs not crcat.: any hostile discrimination agai nstany party or group and it docs not confer undue favo r o r privilege onan indiv idual. Th e discrimination app lies to a ll orga niza tions wh ethe r p o liticalpart ies or sacin l, civ il, re ligious or professional associat ions . The majo ri tyopinio n slates that political parties and orga nized gro up s hav e built-in advantages because of their party machinery an d other faci lities which theindiv idual candidate who is without a ny organizat ion does not have. Thefact that th e other civ ic or religious orga nizations cannot have a ca mpaignmachinery as cflicicnt as that o f po litical parties does not vary the si tu a tion,according to th e Court, because th ey st ill have that bu ilt- in a dvanta ge as

against the individu.ll candida te without similar support. M oreove r, th eCourt cited the possibility of civic , religious and professio nal assoc iati onsbinding together to support co mm on candidates who advocate the reformsthat these orga ni zatio ns champio n .

The Court therefo re con cluded that the first paragraph of Sect ion 8 a of the Co nstitutional Convention Act docs not necessar ily tr ansce nd thelimits of constitut ional immuni ties enshrined in ou r B ill of Rights.

Th e majority opinion was penned by Justice Felix M akasiar a nd co ncurred in by Ju stices J .B.L. Reyes , Arsenio Di zon, Fred Rui z Cas tr o, an din the result by Ju st ice Querube C. Makalintal. Ju stice Enrique Fernandodi sse nted wilh respect to the conclusion of the maj or ity as 10 the constit utionality of Section 8 a) of the Constitutiona l Conventio n Act , which dissentwas conc urf ed in by Chie f Justice R oberto Concepc ion, J ustice Ca iixtoZaldivar , and Ju stice J ulio Villamor. J ustice Antonio Barredo d isse nt edin a se parate opi nion.

In his concurring and d issenting opLillon, Jus tice F ernando declar edthat he could not subscribe in entir ety to th e op inio n of th e majority as hebelieved that Sec t ion 8 a) of the Const itutio nal Convent ion A ct inf r ingedon freedom of speech and association . According to him , th e righ t of anindividual to join othe rs of a like pers uasion to pursue common o bj ect ivesand to engage in activities to pu rsue such objectives is embra ce d within th econ st itutional guarantee of frcedO ill o f association. H e also quest io ned th ewisdom of the law as to its efficacy in serious ly preve ntin g th e su bsta nt iveevils sought to be prevented by Congress say ing tha t the pr o hibition ma ywo rk aga inst the very ev il so ugh t to be pre ve nt ed and the out come mi ghtbelie the expectations of the sponsors of the bill. J ustice F erna nd o saidthat the provision in questio n a lso suffers fre m t he dange r of ove rbr ea dthwhich is to him clear and manifest as to be llffensiv::: to consti tu t ional s tan


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prohibition for any political party, p olitical committee, or political groupto nominat e candidates for any elective public office ' oted for at large earlierthan 150 days immediately preceding elections and for any other publicoffice earlier than 90 da ys immediately preceding such election. The dissent

ing justice noted that the provision in question went further than the prohibition in the Gonzales case in that political parties or any other organizationsare precluded from selecting and supporting candidates for delegates to theConstitutional Convention. This is enteri ng a forbidden domain by Congress,trespassing on a field hitherto rightfully assume d to be within the sphereof lib erty, concluded Juc;tice Fernando.

In his concurring and di sse nting opinion, Justice Barredo held that

the considerations which makes th e restraint on the freedom of association,assembly and speech involved in ,the ban on the political parties to nominateand support their own candidates, reasonably and within th e limits of theconstitution , do not obtain when it comes to civic or non-political organizations , for th ere should be a distinction between political parties and civicor non-political organizations. The prohibition was seen by Justic e B arre doas a deceptiv e device to preserve the built-in advantages of political partieswhile at the same time crippling completely other kinds of associations.The only way to accomplish th e purported objective of the law of equalizingthe forces that will campaign on behalf of th e candidates to the ConstitutionalConvention is to maintain said ban only against the political parties, saidJustice Barr edo . The said Justice adverted to bis opinion in Gon zalesv. Comelec where he maintain ed that the right of suffrage which is thecornerstone of any democracy is meaningless when the right to campaign inany election is unreasonably and unnecessarily curtailed, res trainted, or ham

pered. Justic e Barredo concluded that Section 8 a) of the ConstitutionalConvention Act should apply only to politic al parties and not to othercivic and religiou s organizations who may want to put up their own candidat es.

In another case 21 an organization called Kay Villegas Kami, Inc.questioned th e constitutionality of Section 8 of the Constitutional Convention Act 22 raising the issues of violation of the due process clause,

right of association, freedom of expression, and that the Act constitutes anex post facto law. The petitioning organization averred that it had printedmaterials desi gned to propagate its ideology and program of government,and that it int ended to pursue its purposes by supporting delegates to theConvention who will propagate its ideology.

The Court did not deal with the first three grounds any more sinceit had already decided the iss in previous cases Th court merely em h


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sized the rationale for Section 8 par. 7 of the law, which was designed toprevent the prostitution of electoral process and the denial of the equalprotection of the laws. Under the balancing-of-interests test which wasadopted by the court, the cleansing of the electoral process, the guarantee ofequal chances for all candidates, and the independence of the delegates areinterests that should be accorded primacy.

The . court also struck down the argument of petitioner that the lawis an x post facto law, saying that the constitutional inhibition refers onlyto criminal law s which are given retroactive effect.

Justice Fernando concurred and dissented following his opinion in

Imbong v. Comelec. Justice Barredo likewise reiterated his views in thesame case. ] ustice Villamor concurred with the prevailing opinion in thesense that the law was declared not ex post facto law, and he dissentedas to the rest. Justice Teehankee filed a dissenting opinion, reiterating hisdissent in Badoy v Ferrer wherein he stated that the restrictions of the lawunreas onably strait-jacket the candidates as well as the electorate and violates the constitutional guarantees of freedom of expression, freedom ofpress and freedom of association, and deny due process and the equalprotection of laws.

One point raised in the dissent of Justice Teehankee must be underscored. On freedom of association, he said that the word law in thequalifying clause of the constitutional guarantee, for purposes not contraryto law 23 does not mean that an enactment of the legislature forecloses thequestion of freedom of association with finality, otherwise this would rendersterile and meaningless the constitutional safeguard by the simple expedientof declaring the purposes or certain activities of certain associations, notwrong per se as contrary to. law. Laws that would regulate the purposesfor which associations and societies may be formed or would declare theirpurposes mala prohibita must pass the usual constitutional test of reasonableness and must not abridge freedom of speech and press, he concluded.

t is difficult to see how the Supreme Court could have validated Section 8 a) of the Constitutional Convention Act. The only consoling factorin this respect is that the Court divided on the question, and strong dissentshave been registered.

The right of a citizen to free political expression can hardly be deniedmerely because he prefers to act in concert with others so as to make hisvoioe effective. Exercise of the freedom of expression in the politicalarena has traditionally been through the media of political associations 24


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cularly controversial ones, is und enia bly enhanced by group association. 25As well put by Justice Rutledge, the expression of the bloc sentiment is andalways has been an integral part of our democratic electoral and legislativeprocesses. 26

The argument for group political participation is eloquently stated bya noted American student of the Constitution:

Probably the highest form of freedom of association . . . is thefreedom to associate for political purpose s by means of organ ization ofa political party and participation in its activities. The effective functioning of a democratic soaiety depends on the fo rmation of political parties. . . being indispensable agencies both for effective participation inpolitical affairs by the individual citizen and for re gister.ing the diver sityof views in a pluralil)tic society . 27

Another point which needs emphasis here is the adoption in the abovecases by the majority of the Court, or at least of the prevailing opinionin said cases, of the ', balancing-of-interests test, wherein the constitutionality of the legislative restriction on free expression is placed on balanceagainst the affected individual's or group's interest in freedom of expres

sion.28

As enunciated by Justice Castro in his separate opinion in the on zalescase, the test requires the court to consider various interests that come intoplay in a given situation involving free exprc&sion, and among the factorsto be considered are:

(a) the social value and import ance of the specific aspect of theparticular freedom restricted by the legislation;

(b) the spec ific thrust of the restriction, i.e., whether the restrictionis direct or indirect , whether or not the p ersons affected are few;

(c) the value and importance of the public interest sought to besecured by the legislation-the reference here is to the natureand gravity of the evil which Congress seeks to prevent;

(d) whether the specific restriction decreed by Congress is reasonablyappropriate and necessary for the protection of s uch interest; and

D NAACP v. Alabama, 357 U .S. 449, 460-461, 78 S. Ct. 1163, 2 L. Ed. 2d1488 (1958).

6 Concurring in U.S. v. CIO, supm note 10 at 129.27 KAUPER, CIVIL LIBERTI ES AND THE CONSTITUTION (1966).28 The balancing te st is an American ,importation, applied and enunciated by

Justices Frankfurter and Harlan in tbe following cases: Am e rican CommunicationsAss'n v. Doud s, 339 U.S. 382, 70 S.Ct. 674, 94 L. Ed. 925 (1950); Barenbl a t t v.U.S., 360 U.S. 109, 79 S. Ct. 1081, 3 L. Ed. 1115 (1959); Upbaus v. Wyman, 364U.s . 388, 81 S. Ct. 153, 5 E d 2d 148 ( 1960); Kon igs berg v. State Bar of Cali


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(e) whether the necessary safeguarding of the public interest involvedmay be achieved by some other measure less restrictive of theprotected freedom. 29

One reason why the balancing test has been frowned upon by civillibertarians is that, almost invariably, when this test is applied, the interestof the state always outweighs the interest in freedom. The danger in thistest lies in its 'misapplication, for the Court may merely weigh against so-ciety's interest in regulation merely the affected individual's interest in freespeech, when the real competing interest is that of a democratic state itselfin free expression. f the real competing interest of society in freedom isplaced on the scale against social interest in regulation, then there is agood chance that the balance may tilt in favor of freedom rather than inrestriction.

The Court, at least in one c ase 3 found the balance in favor of freespeech, although it expressly used the pref erred freedom doctrine . nthis case, the Court , without any dissenting opinion, upheld the right ofthe petitioner to use a taped jingle to campaign as candidate for delegateto the Constitutional Convention. The respondent Commission had prohi-bited petitioner fwm using jingles in his mobile units equipped with loud-speakers, on the ground that this would violate Section 12(E) of the Con-stitutional Convention Act making it unlawful for candidates to purchase,produce, request or distribute sample ballots, or electoral propaganda gadgetssuch as pens, lighters, fans (of whatever nature), flashlights, athletic goodsor 'materials, wallets, bandanas, shirts, hats, matches, cigarrettes, and thelike, whether of domestic or foreign origin.

t was the Comelec's view that the use c f a jingle, a verbally recordedform of election propaganda, is no different from the use of a 'streamer'or 'poster', a printed form of election prop ,ganda. Thus, as Justice Teehan-kee in his concurring opinion put it, the Comelec would outlaw tapedvoices and would exact of the candidate that he make use of his soundsystem personally or by another person.

The Court upheld petitioner's contention that if the above provision ofRepublic Act No. 6132 were to lend itself to the view that the use ofthe taped jingle could be prohibited , then the challenge of unconstitutionalitywould be difficult to meet. The Court declared:

I t has been our constant holding that this preferl'ed freedom callsall the more o ~ the utmost respect when what may be curta,iled is the


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1971] POLITICAL LAW

impose censor ship on petitioner, an evil again st which tbJis constitutionalright is dire cted.

205

The Court refuted the argument that petitioner would be free, either byhimself or through othe rs, to use his mobile loudspeakers. The constitutional guaran tee is not to be emasculated by confining it to a speaker havinghis say, but not perpetuatin g what is uttered by him through tape or othermechanical contrivances, said the court.

The decision in this case must be distinguished from that of the U.S.Supr eme Court ruling in Saia v ew York 31 where the Court invalidateda city ordinance forbidding the us e of sound amplification devices exceptpublic dissemination of items of new s and matters of plib lic concern providedthat the same e done und er the permission of the Chief of Police. n

striking down the ordinance as unconstitutional , the Court held that itestablishes a previous restr aint on free speech. The majority further noted:

Loudspeakers are today indispen sa ble in strument s of effective publicspeech. The sound truck has become 'an accep'ted method of politicalcampaigning. 32

Ho wever, Ko vacs v Co o per 33 virtually overruled th e Saia ruling. Note,ho wever, that in the Mutu c case, the petitioner was not being prohibitedfrom usin g a sound truck, but merely from using tape-recorded jingles, andthe reason for the Comelec prohibition was not to protect the captive audience but to eq ual ize campaign opportunities between those who couldafford tape recordings and those who could not.

IIIEQUAL PROTECTION AND REASONABL E CLASSIFICATION

In constitutional litigation, equal protection of law is the catch-allargument aga in st unjust legislation. Paraphr asing Samuel Johnson, JusticeHolmes once remarked that the equal protection clause is the usual lastrefuge of constitutional arguments.

Two petitioners challenging the constitutionality of the ConstitutionalConvention Act , aside from two alhers, invoked the eq ual protection argument, in addition to the first-line offensive attacks they leve lled at the disputed s ta tutes.

Purifying the Constitutional Convention

The Constitutional Convention Act did not limit itself to the prohibitionl d f h f fl l l


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206 PHILIPPINE LAW JOUR NAL [VOL. 46

consent. Th e Act also attempted to insur e th at only th e pure in heart sh.ouldrun as candidate s for dele gate to the Conv ention . Thi s the Congressattempted to ac hie ve by m eans of a numb er of p rovis ion s calculated t.oguarantee that .only person s motivated solely by a spirit to serve shauld beallQowed to run; that candid ates with an eye to th e next general electionshould be prevented from usin g the conventi on as a springbQoard for anotherelective office, and that public officials should not use their office as a basefor the campaign f.or delega tesh ip .

The perso n s affected by the prohibitions went to co ur t to challengethe constitutionality of t he provisions in point. As in the ther cases challenging the va lidit y of th e Constitutional Convention Act, the Supreme Courtaffirmed th e validity of th e prohibitions.

In In Subido 3 4 the Supreme Court held that the provision of Section4 of Republic Act N o. 6132, oth erw ise known as the Constitutional Con-vention Act, which requires p ersons hold ing a public office or position toresign from sa id position s upon the filing of their cert ificat e of candidacyfor the electi.on for Constitutional Convention, is not vio lative of the equalprotection clause of th e Constit uti on. The court stated that whil e saidsection of the law ap pl ies excl usively to officials and employees of the govern m ent or of govern m ent -owned or controlled corporations, it does notconstitute discrimin atory legislation sinc e the classification is germane toth e purpos e of th e act and is based on su bstan tial di fferences between thesituati.on of said officials and emp loyees and that of p ersons o utside of thegovernment service. This accords with the rule laid down in the case .of Ma-l Electric Company v. Public Utilities Employees Association,35 that le

gislation which affects with eq ual force all persons of t h e sa me class andnot those of another , is not class legi slatio n an d do es n ot infringe the constitutional guarantee of equ al protection of the la ws , if the division intoclasses is not arbitrary and is based on diff erences which are apparent andreasonabl e. The Court th en pointed out in th e Subido case that und er theConstitution al Co nv ention Act Sec. 4 , governme nt officials and employeesare not absolutely barred from becomin g candidates for office of delegateto the Constitutional Convention, the onl y con dition b e ing that when theydo S o th ey should relinquish their positions an d that this condition is imposed for reason s of public interest becau se t here are certain governmentoffic es which afford their occupants many built-in advantages not availablet.o others which m ay be u sed or abused t.o en hanc e th eir own candidaciesand becau se to allow government officials an d employees to campaign forthe convention and, if elected , ,to sit as delega te without vacating their po


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1971] I OLITICAL L W 207

n the case of 1mbong v Ferrer the provision of t ~ ConstitutionalConvention Act disqualifying any elected candidate from running from anypublic office in any election or from assuming any appointive office or position in the government until after the final adjournment .of the constitution

al convention, was assailed as unconstitutional for being undue deprivationof liberty without due process of law and as denial of the equal protectionof laws. Again, the court ruled that this is without merit. The citizen doesnot have any inherent or natural right to a public office and the state,through its constitution or legislative body can create an office and definethe qualifications and disqualifications therefor as well as impose inhibitionson public officers, said th e court. Consequently , only those with qualifications and who do not fall under any constitutional or statutory inhibitioncan be validly elected or appointed to a public office so as to immunizethe dele gates from the diverting influence of self-interest, party-interest,or vested interest and to insure that he dedicates ll i ~ time to performingsolely in the interest of the nation which may endure for generations. Thecourt continued that the disqualification embodied in Section 5 of theConstitutional Convention Act will insure that the delegate will not utilizehis position as a bargaining lever for concessions in the form of an elective

and appointive office as lon g as the convention has not finally adjourned.The overriding objective of the challenged disqualification , noted the court,is to compel the elected delegates to serve in full their ,terms as such andto devote all their time to the convention , pursuant to their representationand commitment to the people.

The court further noted that the discrimination against delegates tothe Constitutional Convention is valid for it is based on a su bstantial dist in ction which makes for real differences , is germane t.o the purp.oses of thelaw , and applies to all members of the same class. The court again notedthat the function of a delegate is more far-reaching and its effect moreenduring than that of any ordinary legislator or any other public officer .

Equal protecti on in expropriation s tatutes

But it was in an expropriation statute where the Court discussed fullythe nature of the equal protection clause. t was necessary for the Courtto do this because, unlike previous expropriation statutes which were ingeneral terms, the law involved in this case specified the property whichwas to be expropriated . So, the petitioner in the case of J M. Tucson v.Land Tenur e Administration 36 raised -the point that the law, Republic ActNo. 2616, which authorizes the expropriation of the Tatalon Estate in


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other expropriation laws which cDnfer authority to expropriate landed es-tates in general. The court , however, did not give due weight to this con-tention, saying that it gives due recognition to the power of Congress to

designate the particular property to be tak ,en and how much thereof maybe condemned in the exercise of the power of expropriation. However, theCourt said that it is still a judicial question whether, in the exercise of suchcompetence, the party adversely affected is the victim of partiality or pre-judice.

In tackling the aoove question , the Court started with the presumptionof validity in favor of a challenged statute. The Court then noted that the

law states that the Tatalon Estate has an area of more than 96 hectares andthe lots therein were then occupied by no less than 1,500 heads of familieswho had expressed their' earnest desire to purchase the lots at a minimalcost.. Then the Court noted that the law also provides that the populationof Quezon City has considerably increased, and this increase in populationwas causing a serious housing problem to city residents so that the lawwould not only solve the problem but would also implement the land forthe landless pr ,ogram of the administration . The Court then cited anotherfact which removed the statute from the infirmity of the equal protectionclause, and that is , that the petitioner, J. M Tuason and Co., led the DCCU-pants ' of the Tatalon Estate to believe that they were dealing wi.th the repre-sentatives of the real owners in the purchase of their lot, it appearing thata subdivision company was allowed to construct roads inside the estateand to advertise the ' sale of the lots inside. The Gccupants therein paidfor 'their lots and spent fortunes to build their homes. I t was only after the

place had been improved that the J. M. Tuason and Company claimed forthe first time , that it was the ' owner of the estate. The CDurt pointed outthat the petitioner did not answer the persuasive recital of conditions byrespondents that motivated Congress to pass G law expropriating the estate.

The Court then declared that there is nothing to prevent Congress tofollow a system of priorities in expropriating landed estates considering thelimited funds at its disposal. Congress was moved to act in view of whatit considered a serious social and economic problem, the solution whichfDr it was the most acceptable was the expropriation of the Tatalon Estate,continued the Court. That Congress stopped short of attaining the cureof other analogous ills certainly does not stigmatize its efforts as a denialo equal protection. The Court cited jurisprudence to the effect that thelegislature is not required by the constitution to adhere to the policy of

ll


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1971] POLlTlC.I\L LAW 209

which gave the tenants of an expropriated estate the right to purchase thesubdivided lots, 9 applies only to Filipino citizens who are in no financialposition for the present to buy the land, but not to non-Filipinos, even i

they may really have be en tenants thereon prior to the acquisiti.on of the

expropriated propert y by the government. To allow aliens to benefit fromthe provisions of the law quoted above would result in their acquiringpossession in perpetuity which is, in effect, in violation of the Constitution.The fact that the law withdraws from non-Filipinos the enjoyment of certainrights does not expose tbe law to unjust discrimination, declared the Court,for classification will constitute n o violati.on of the individual's right to equalprotection as lon g as it is not unreasonable, arbitrary or capricious. TheCourt cited the es tablished principle that classification is not unreasonablewhere it is based on substantial distinction s that make for real differences ,is germane to the aim and purpose of the law, is not limited to existingconditions, and applies to all members of the same class under similarconditions.

The cases on equal protection point to no other conclusion than thedemise of the time-worn principle of "one law for all. The complexity

of ,the problem s of the country as a developing nation compels Congressto single out individuals and certain economic interests who must e regulated by legislation in response to the felt necessities of our time. Justice.Fernando , the ponente in the . M. Tuason case , notes in his new book thatthe necessities imposed by public welfare may justify the exercise of the

governmental authority to regulate, even if thereby certain groups mayplausibly assert that their interests are disregarded. 40

FJ eed a m o assembly: the argument .of fear

Contemporary stu dent activism finally made jurisprudence in the areaof free speech and assembly in the case of Navarro v. Villegas. 41 Petitioner,spokesman for the Movement for Democr atic Philippines , a federation ofstudents', workers', and peasants' organizations, went to the Supreme Courtfor a writ of mandamus to compel the Mayor of Manila to issue a permit

to hold a rally at Plaza Miranda on Thursday, February 26, 1970, from4:00 to 11.00 p.m. On the same day, the Mayor denied the request, saying:

39The law provides: Sec. 3. The landed estates or haciendas expropriated byvirtue of this Act shall be subdivided into sma ll lots, none of which shall exceedone hundred and fifty sq uare meters in area, to be so ld at cost to the tenants, oroccupants , of sarid lots , and to other individuals, in the order mentioned; Provided.That if the tenant of any given Jot ,is not able to purchase said lot, he shall be givena lea se from month to month of sa id lot until suc h time that he is able to purchase


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2JO PHILIPPINE LAW JOURNAL [VOL. 46

In the greater intere st of the community, this office, guided by a lessongained from the events of the past few weeks , has temporarily adoptedthe policy of not issuing any permit for the use of Plaza Miranda forrallies or demonstrations dupjng week days . 4

The Mayor then suggested that the MDP utilize the Sunken Gardens nearIntramuros for its rally and the rally be held earlier during the day in orderthat it may end before dark . 43

The MDP , through Navarro , went to the Supreme Court the follow-ing day , contending that the Mayor 's action violated his right to peaceablyassemble and petition the government for redress of grievances and to equalprotection of the laws.

Th e Mayor contended that the permit to hold a rally was not beingdenied and ' in fact the Sunken Gardens was offered as the place of ther ally. The petitioner asserted that Plaza Miranda has been designed pur-posel y as a convenient place for rallies and demonstrations, and it hasearned the reputation as the Congress of the People , the Court of LastResort and the Forum of the Masses. According to petitioner, the Ma-yor 's suggestion to banish the scheduled rally to the inconspicuous SunkenGardens is a design to unduly minimize the effectiveness of the projectedrally and to sink it to futility. 4 4

In a short resolution handed down the day following the oral argument(February 26, 1970 , the rally having been ~ h e d u l e din the afternoon ofthe same day), the court denied the writ prayed for, reasoning that:

1) The respondent Mayor has not denied nor absolutely refused the

permit sought by petitioner, and he stated his willingness to grantpermits for peaceful assemblies at Plaza Miranda on Saturdays,Sundays, and holidays, and at the Sunken Gardens on weekdays;

2) The Mayor possesses reasonable discretion to determine or specifythe streets or public places to be used for the assembly in orderto secure convenient use by others and provide adequate and pro-per policing ; and

3) Experience in connection with present assemblies and demonstra-tions shows that a public rally at Plaza Miranda , as compared toone at the Sunken Gardens, poses a clearer and more imminentdangers of public disorders , breaches of the peace, criminal acts,and even bloodshed as an aftermath of such assemblies.

Two justi ce s Fernando and Castro dissented saying that if respondent


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a clear showing that he was so empowered under the criteria supplied byPrimicias v Fugoso then this petition should not prosper; however , thegrounds for his refusal as set forth in his letter do not meet the standardof the Primi cias ruling. The effect is one of prior restraint of a constitutional right, wrote the dissenting justices , ci ting uttl eworth v. Birming-ham where the American Supreme Court declared:

For in deciding whether or not to withhold a permit, the membersof the Commission were to be guided only by their own ideas of 'p ublicwelfare l, peace, safety, health, decency , good order, morals or convenrence.' This ordinance as it was written, therefore, fell squarely withinthe ambit of the many deci sion s of thi s Co urt over the l as t 30 years, hold

ing that a law subjecting the exercise of First Amendment freedoms tothe prior restraint of a license, without narrow , objective, and definitestandards to guide the licensing authority, is unconstitutional. 45

The above decision of the majority in Navarro certainly accords withthe ruling of the Supreme Court in Ignacio v . Eta 46 where the Court up-held a town may or's denial of a permit to the Jehovah 's Witnesses to holda public meeting at the town plaza because of the mayor's fear, that the

applicants, a militant religious sect, may provoke disturbance due to theproximity of the Catholic Church. The Court, or at least a majority of it,observed that the mayor had offered the nonhwestern part of ,the plaza asa substitute meeting place, and hence there was hardly any merit in thecontention that ,the applicants were denied free assembly.

As for the appropriateness of Primi cias v . Fugoso 47 as authority, theSupreme Court in that case did say that the Mayor possesses reasonable

discretion to specify the public place s to be used for meetings and rallies.However , it must be noted that Primi cias is two-pronged. The Court therealso held , in effect, that mere apprehension on the part of th e Mayor thatdisturbanc e might erupt as a result of the meeting is not sufficient groundfor denial of the permit sought for by .the app licant. That is why the Courtquoted, among others , Justice Brand eis' now classic concurring opinion in

Whitney v. California 48 that fear of serious injury cannot alone justify

suppression of free speech and assembly, mid that the fact that speechis likely to result in some violence or in destruction of property is not enoughto justify its suppression.

Under the First Amendment to the American Constitution, from whichwe copied verbatim the guarantee of free express ion , fear of public dis-


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turbance has always been held insufficient to justify abridgment cf freespeech. In a recent case, the U.S. Supreme Court stated:

[U]ndifferentiated fear or apprehension of disturbance is not enoughto overcome the right of free expression. Any departure from absoluteregimen.tation may cause trouble . Any variation from the majority'sopinion may inspire fear . . . But our Constitution says we must takethi s risk . . ... 49

This is because mere legislative pr eferences or beliefs respecting matterscf public convenience may well support regulations directed at other personal activities, but be insufficient to justify such as diminishes the exerciseof rights so vital to the maintenance of democratic institutions. 5 Thus,the state may not unduly suppress free communication of viewsunder the guise of conserving desirable conditions. 5 1

The expressed fear of the majorj,ty in the Navarro case that everytime that such assemblies are announced, the community is placed in such astate of fear and tension that offices are closed early and employees dismissed, storefronts boarded up , classes suspended, and transportation disrupted, to the general detriment of the public is hardly sufficient to justifydenial of' a permit to hold a meeting at Plaza Miranda, if the criterion tobe used is that utilized by their more liberal American colleagues.

. . . the likelihood, however great , that a substantive evil willresult cannot alone ju stify a restriction upon freedom of speech or thepress. The evil itsel( must be 'sub,stan ti al' . . . it must be 'serious' . . .And even the expression of 'legislative preferences or beliefs ' cannot transform minor matters of public inconvenience or annoyance into substantiveevils of sufficient weight to warrant the curtailment of liberty of expression. . . [T]he substantive evil must be extremely serious and the degree ofimminence extremely high . . 52

IV. THE DUE PROCESS CLAUSE

Sub stantive due process the dying gasps of a stubborn doctrine

The death of the economic doctrine of laissez faire did not kill substantive due proces s entirely. Intellectual inertia apparently outlives staredecisis; thus, while the Supreme Court has not utilized substantive dueprocess lately as a legislation-killer, the doctrine still lives in the heartsand minds of some lawyers and their clients. It was the 1935 Constitutionwhich dealt the coup de g ce to substantive due process with its provisions


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on social justice, protection to working wOlffien and minors, regulation ofrelations between landowner and tenant and between capital and labor, etc.But our Supreme Court is still delivering the eulogies, and in the presentCourt, the eulogist is. Justice Fernando. 53

In Edu v Ericta 54 Justice Fernando, who wrote for the Court, hadanother opportunity to remind the petitioner, who challenged the validityof the Reflector Law (Rep. Act No. 5715), that substantive due processshould not now be invoked to attack the constitutionality of welfare legislation .

In this case the petitioner challenged the amendment to the LandTransportation and Traffic Code b which prohibits registration of motorvehicles without reflec'torized tapes at the front and rear ends of said vehicles. According to the petitioner, the law deprived him of property withoutdue process of law . Upholding the law as a proper exercise of public power,the Court justifi ed it in two sentenc es:

I t would be to close one's eye s to the hazard s of traffic in theevening to condemn a statute of this char acter. Such an attitude betrayslack of concern for public safety.

The ponente Justice Fernando, then lectured on the private respondent for having been unable to resist the influence of American decisions.Declaring that such decisions on due process have lost their weight in thisjurisdiction, the Court pointed out that substantive due process as a constitutional doctrine was tied up to the dornintlnce of the economic doctrineof laiss ez taire 56

In another case 57 where the Court held that an alien tenant can notenjoy the right given by law to tenants of an expropriated property to purchase the lot they have occupied, the Court said that this does not amountto deprivat ion of property without due process. Due process as a constitutional mandate is bas ed on reason, and no irrationality can be said tocharacterize the denial of appellant's application for purchase, said the Court.

53 See e.g. Ermita-Malate Hotel and Motel Operators Ass 'n. v. Mayor of Manila,

G.R. No. 24693, July 31, 1967; Morfe v. Mutuc, G.R . No . 20387, January 31, 1968;Alalayan v. NPC, G .R . No. 24396 , July 29, 1968.64 G.R. No . 32096, October 24, 1970.65 Appropriate parking lights or flares visible on hundred meters away shall be

d1ispllayed a t a corner of the vehicle whenever such vehicle is parked on highways orn places that are not well-lighted or is placed in such manner as to endanger passing

traffic. Furthermore, every motor vehicle shall be provided at all times with built-inreflectoI1S or other similar warning devices either pasted, painted or attached at itsfront and back which shall likewise be visible at night at least one hundred metersaway No vehicle not provaded with any of the requirements mentioned in this sub


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t observed that the alien s occupancy of the lots as a tenant of the previous owner bef


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against whom it may be directed could show facts that had developed subsequently that would make it unjust or inequitable. This necessitates a hearing before the issuance of a writ of execution. 61

V. OT H ER RIGH TS

Free access to courts

The constitutional principle of free access to courts was given meaningby the Supreme Court in En aje v. Ramos 62 The issue involved here waswheth eroif not the petitioner should be allowed to litigate as pauper before

the Murucipal Court for the recovery of P85. ,OO

in a civil case, in whichptition er was plaintiff and r espondent Dugan was defendant. The petitionerfiled an affidavit that he owned sev eral parcels of land but that for severalyears pri or to the filing of the complaint in the MuniCipal Court, said parcelsof land referred to had been divided and partitioned among his children whohad since been in possession and petitioner no longer owned or possesseda single parcel of land. Apart from that he had no income or means oflivelihood . The municipal judge d erued the petition to litigate as paupersince a person by the same name as petitioner was owner of some parcelsof land under tax declarations filed with the municipal treasurer. The petitioner then went to the Court of First Instance on certiorari where he wasallowed to litigate as pauper only for that case. Later, in the main case,the Court of First Instance ruled that the municipal judge did not abusehis discr etion in sIisaUowing petitioner to sue as pauper.

The Supreme Court reversed. It stated that under the Constitutiona paup er litigant does not refer to a person who is so destitute as to haveno means at all of even supporting himself. t suffices, according to theCourt , that the plaintiff is indigent though not a public charge. This rulingfollows an American case 63 where pauper was defined -as a suitor whoon account of poverty, is allowed to sue or defend without being chargeablewith costs.

The Court's view of a pauper is consonant with recent legislation likethe act requiring courts to give preference to criminal cases where theparty or parties involved are indigents,64 and the act providing transporta-

61 Calvo v. De Gutierre z, 4 Phil. 203 t1905) ; Lee v. Mapa, 51 PhiL 624 (1928);Li Kim Tho v. S anch ez, 82 PhiL 776 (1949) ; P as cual v. Tan, 85 PhiL 164 (1949);City of Butuaq v. Ortiz, G .R . No . 18054 , 3 SCRA 659 (1961) ; Candelario v. Cafiizares, G .R. No. 17688 , 4 SCRA 738 (1962); Yda . de Albar v. Carandang, G.R. No.18003 6 SCRA 211 (1962) R bl Ti i G R N 18239 O b 30 1%2


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216 PHILIPPINE LAW JOURNAL [VOL 46

tion and other allowances for indigent litigants,65 where indigent is definedas a person w ho has no visible means of income or whose income is insufficient for .the subsistence of his family. There is also the law requiringstenographers to give free transcript of notes to indigent and low-income

litigants ;66 where indigent litigant has a more expansive meaning to includeanyone who has no visible means of support or whose income does notexceed P300 00 per month or is insufficient for the subsistence of hisfamily.

The guarantee of free access to courts is actually an aspect of thedoctrin e of equality as recognized in our Constitution . The devaluation ofthe peso as well as the high cost of litigation has virtually closed our courts

to the needy and the underprivileged. t is in the light of the seriouseconomic imbalance in our society that the concept of free access to courtsshould be given substance, otherwise it will remain a paper guarantee . Thedecision of the Court in Enaje v Ramos defines pauper litigant realistically, instead of the wooden and literal meaning given to the term by thelower courts.

Right to free s ~ o c i t i o n

In th e case of Confederation of Unions in Government Corporationsand Offices CUGCO) v Subido 67 the petitioners contested the memorandU 'm circular issued by respondent Commissioner of Civil Service ruling thatunder R epu blic Act Nos. 2266 and 2327, the Auditor General and theGo vern ment Corporate Counsel are considered employers of the personnelemployed in the auditing and legal departm ents of government-owned andcontrolled corporations and in view thereon he directed the Auditor General,the government corporate counsel , and board chairmen and general managers of government corporations requiring all union members or petitionerunions employed in the auditing and legal departments to sever .their connection from the local employees' .unions and to renounce collective bargaining benefits, otherwise, they would face disciplinary actions. One of theobjections of petitioners to this memorandum circular was that it is uncon

stitutional because it violates the right to form or join associations or laborunions of their own choice.

In holding that the memorandum circular is not violative of the freedomof association, the Supreme Court said that the right to form and joinassociations and unions is not absolute or unlimited, and thus, if a personaccepts employment that falls under the Civil Service Law, and his employer


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right to strike, because that is prohibited by law. Having accepted theemployment freely and being chargeable with knowledge of the fact that hehas no right to strike to enforce his demands against his employer, his onlyrecourse is either to respect and comply with that condition or resign .

Clearly, the reasoning of the Court here is reminiscent of the oldHolmesian dictum that while a person has a constitutional right t ) freespeech, he bas no constitutional right to be a policeman. This illiberal attitude that impales the petitioner on the horns of a dilemma is, in otherjurisdictions, fading into obsolescence . American courts would rather balance the state s interest in the need for the prohibitory legislation againstinterest in the protection of freedom of association . In the case at bar, our

Court did not even ask itself what the nation s interest is in having government lawyers and auditors who are not union m embers. Why should aposition as government counselor auditor be had only at the price of surrenderin g not only a constitutional right but also property rights in thecollective bargaining agreement benefits? Should the government imposeuncon stitutional conditions as requisites for public employment?

R ight t privacy

The Supreme Court reiterated the rule p reviously enunciated in Vivo v.Montesa 8 in the case of Calacday v. Vivo. G The rule is that the issuanceof warrant of arrest by the Commiss ioner of Immigration s()lely for purposesof investigation and befor e a final order of deportation is issued, conflictswith the constitutional guarantee against th e right of the people to be securein thei r persons, houses, papers and effects .70 This ruling was also reaffirmedin the cases of Qua Chee Gan v. Deportation Board 71 Dalamal v. Deporta-tion Board 72 Morano v. Vi vo 7 and Nefia v. Vivio. 7

VI. CONGRESS AND THE CONSTITUTIONAL CONVENTION

Under the Constitution, Congress, aside from being a legislative body,may also act as con stituent ass embly . Thus, under Secti()n 1, Article XVCongress, in joint session assembled, by a vote of three-fourths of all the

Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution ()r call a convention forthat purpose.

68 G.R. No . 24576 , July 20 , 1968.69 G.R. No. 26681 , May 29 , 1970 .7,0 CON ST., art. 3, sec . 1, par. 3 .


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Of course the powers of Congress as a constituent assembly differsfrom its powers as an ordinary legislative body. As a legislative body itsenactments are subject to approval by the President of the Philippines; as aconstituent assembly it acts on its own without any check exercised on its

will by the President. In the enactment of statutes generally only a major-ity vote is required except in certain instances while if it acts as a consti-tuent assembly an extraordinary 3 4 majority must be garnered.

When Co ngress as a constituent assembly calls a Constitutional Con-vention can it lay down the details of such convention in its capacity as alegi.slative body? This question was tackled by the Court in Gonzales vComelec. 75 n this case the petitioner contested the constitutionality of the

whole Republic Act No. 6132 which implements the resolutions of Congresscalling a constitutional convention on the ground among others that it waspassed by Congress acting as a legislative body in the exercise of its law-making authority and not as a constituent assembly. In sustaining the valid-ity of Republic Act No. 6132 the Court declared that when Congress actsas a constituent assembly pursuant to article XV of the Constitution it hasfull and plenary authority to propose constitutional amendments or to call

a convention for the pmpose. The Court then observed that the resolutionscalling for a Convention were passed by a 3/ 4 vote. The grant to Congressas a constituent assembly of such plenary authority to call a ConstitutionalConvention includes all other powers essentials to the effective exercise ofthe principal power granted such as the power to fix the qualificationsnumber apportionment and compensation of the delegates as well as appro-priation of funds to meet the expenses for the election of the delegates andfor the operation of the Constitutional Convention itself said the Court.But while the aut hority to call a Constitutional Convention is vested by thepresent Constitution solely and exclusively in Congress as a constituentassembly the power to enact the implementing details does not exclusivelypertain to Congress acting as a constituent assembly; such implementingdetails are matters within the competence of Congress in the exercise o itscompnehensive legislative pOJ er, which power encompasses all matters notexpressly or by necessary implication withdrawn or removed by the Constitu-

tion from the ambit of legislativ e action. Consequently said theJ Court whenCongress omits to provide for such implementing details after calling aconstitutional convention Congress acting as a legislative body can enactthe necessary implementing legislation to fiU in the gaps . The fact that abill providing for such implementing details may be vetoed by the Presidentis no argument against conceding such power in Congress as a legislative


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This decisi on is the sensible approach to the problem posed by thepetitioner in the above-mentioned case. When one descends from semanticalhairsplittin g to actual operation , the legalistic distinction between Congressacting as a constituent assembly and as a legi slative body in the particularinstance of pas sage of the Constitutional Convention Act was virtually immaterial, because Congress passed the Act overwhelmingly. In other words,the distinction means only a difference of about 30 votes between the plainmajorit y required for the passag e of a bill and the 3 / 4 majmity requiredfor Congress to pass action as a constituent assembly. In .the passage ofRepublic Act No. 6132, even th e 3/ 4 majority requirement was met -though , of course, Congress did not pass it in joint session. f anything,

the argument of invalidity of Republic Act No. 6132 based on the constituent assemb ly- Iegi.slative body dichotomy is a reminder of our lawyers'obsession with semantical niceties. Furthermore, -

Lon gestab lished us age has settled the principle that a ge ner al grantof legislat ive power carries with it the autho rity to call conventions forthe purpose of amendment or revi sion of the Constitution; a nd evenwhere the only method provided in the Constitution for its ame ndrnentis by legi slative submission of amendments, the better doctrine see ms to

be that suc h provision , unle ss in terms restrictive, i5 permj ss ive only,and does not preclude the calling of a constitution al convention underimplied powers of the legislative department. '16

The matter of apportionment of delegates to the Constitutional Convention was also dealt with by the court in the same case of Gonzales The petition er contended that the apportionment of delegates to the convention is not in accordance with proportional representation and thereforeviolates the constitution and the intent of the law. But the Court declaredthat apportionment of delegates to the convention is unlike apportionmentof repr ese nt a t ive districts for Congress, sitting as a constituent assembly,may constitutionally adopt a method of allocation different from the allocation of representatives for congressional districts for reasons of economyand to avoid having an unwieldy convention. The court then noted .that theapportionment provided for in the Constitutional Convention Act (Sec. 2,Rep. Act 6132) cannot conflict with its own intent expressed in said act

for it mer ely obeyed and implemented the iiltent of Congress acting as aconstituent assembly expressed in Section 1 of Resolution No.4, which provides that the 320 delegates should be apportioned among the existing representative districts according to the number of their respective inhabitants,but fixing a minimum of at least 2 del egates for a representative district.The presumption is that the factual predicate, the latest ava ilabl e official


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the desired proportional representation. The fact that the latest census wasonly a preliminary census would not preclude it as valid basis of apportionment, continued the Court, and it does not vitiate the apportionment aseffecting proportional representation. According to the Cburt, absolute

proportional apportionment is not required and is not possible when basedon the number of inhabitants, for the population census cannot be accuratenor complete, dependent as it is on the diligence of the census , takers, aggravated by the constant movement of population, as well as daily death andbirth. t is enough that the basis employed is reasonable and the resultingapportionment is substantially proportional, concluded the Court.

There are state'ments of the Court in this case which are pregnant withdisturbing implications. For instance, after noting that the petitioner inthis case failed to pinpoint ,any specific provision in the Constitution providing for proportional representation , the Court states:

Unlike in the apportionment of representative districts, the Constitution does not e xpressly or impliedly require such apportionment ofdelegates to the convention on the basis of population in each congressional district. Congress, sitting as a Constituent Assembly may constitu

tionally allocate one delegate for each congressional district or for eachprovince, for reasons of economy and to avoid having an unwieldy convention. 77

Our Constitution expressly guarantees equal protection of the laws. 78Inequality of apportionment has been held to be contrary to the Constitutionfor it would go against the vital principle of equaIity.79 Thus, in the UnitedStates, it has been held that unequal apportionment of state legislative dis

tricts violates the equal protection clause of the Constitution.80

Equality of representation lies at the foundation of representative government. Central to the doctrine of equal representation is the rule ofone-man-one-vote, and the electorate have a fundamental interest in an

equally effective vote which includes the right to be free from dilutionof the vote. Thus, "the right .of suffrage can be denied by a debasement ordilution o the weight o a citizen's vote just as effectively a S by wholly

pr:ohibiting the free exercise o the franchise." 81

The above pronouncements, made with respect to legislative apportionment, should apply with more reason to apportionment of delegates ,to theConstitutional Convention, who perform functions more fundamental, more

77 Ibid ., emphasis supplied.78 CONST art III sec 1


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J971J POLITICAL LAW 221

pervasive and more comprehensive than ordinary legislators. t would,therefore, be constitution ally suspect for Congress to allocate, for reasonsof economy, one delegate for each province regardless of population. Totake an extreme example, to allocate one delegate for Batanes, with a population of only 11 ,425, and one for Rizal, witb a population of 2,781,081,82would do violence to the equal protection clause in the name of economy.

Title o a law

Under the Constitution , no bill which may be enacted into law shallembrace more th an one subject which shall be expressed in the title of the

bill. 83 t has be en said that this requirement is designed to preventlog-r olling legisl ation and also to prevent fraud or surprise both on the

legislature and on th e people. 84

In del R osario v Comelec 8 5 the petitioner impugned the constitutionality of the Constitutional Convention Act on the ground, among others, thatit failed to includ e in its title the phrase, To Propose Amendments to theConstitution o the Philippines . The title of the Act reads:

An Act Im plementing Resolutions of Both Houses Numbered Twoas Amended by ResolutJion of both Houses Numbered Four of the Congress of the Philippin es Calling For A Constitutional Convention, Providing for Proportional Representation Therein and Other Details Relatingto the Election of Delegates to and the Holding of the ConstitutionalConvention, Repealing for the Purpose RepubLic Act Four Thousand NineHundred' Fourteen, and for Other Purposes.

The inclusion of the phrase To propose amendments to the Constitution of the Philippines is unnecessary, declared the Court, because the titleexpressly states th at the Act implemen ts the resolutions of Congress whichcategorically stat es in .their titles that the Constitutional Convention wasbeing called to propose amendments to the Constitution of the Philippines.Furthermor e according to the Court, there was no fraud or surprise thatwas perpetuated b y the questioned title on the legislature and the public,

since the pow er to propose amendments to the Constitution is implicit inthe calling of the Convention itself. The court concluded by citing thesettled rule that the title of the bill is not to be an index to the body ofthe act and that it should not be comprehensive in matter s of detaiL t isenough that it indicates th e general subject and covers all the provisions ofthe act so as not to mislead Congress or t ~ people.


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222 PHILlPP1NE LAW JOURNAL [VOL. 46

Delegation of powers

n Edu v. Ericta the petitioner below challenged not only the validityof the Reflect or Law but also the order of the Land Transportation Com

missioner implementing the law. On the basis of the law, which provides:

Appropriate parking lights or flares v isib le one hundred metersaway shall be displayed 'at a corner of the vehicle whenever such vehicleis parked on highways or in places that are not we ll-li ght ed or is placedin such manner as to' endanger passing traffic. FurthermO're, every motorvehicle shall be provided at all times with built-in reflectors or othersimilar warning devices either pasted , painted or attached at its frontback which shall likewise be visible at night at least one hundred metersaway. NO' vehicle not provided with any of the requirements mentionedin this subsection shall be registered," 8

the Commissioner drafted the following implementing order:

(1 ) For two wheeled motorcycles - One in front and another atthe rear whi .ch shalf be installed, pasted O'r painted on the lowest tip ofboth fenders. (2) For three-wheeled motorcycle s - One in front to be

installed, pasted or painted at the outer-most side of the rear end of thebody of the vehcile . (3) For Trailers with platform body urre spective ofsize, two at the rear to be in sta lled , pasted or pa inted on in outer-mostside of the rear end of the body. (4) For r l r with Stake or VanBody ' irrespective of size - Two in front to be installed, pasted or painted5 inches below the two upper corners of the body; a nd four at the rearend of the tr ailer, two of which shall be installed , pasted or paUnted5 inches below the upper two corners of the rear end of the body andthe other twO to be installed, paste .d or painted 5 inches above the twolower corners of the rear end of the body. (5) For Four-wheeled motorvehicles 2% meter high or lower irrespective of weight - Two in frontto be installed at the outer-most side of the vehicle preferably at theouter-tip of the front bumper or at the lower tip of the front fender;and two at the rear to be installed, pa sted or painted on the outer-mostsUde of the rear' end of the body of the vehicle preferably at the outertip of the rear fender or bumper. (6) For fom-wheeled motor vehicle4 meters high but not lower than ,6 meters irrespective of weight

Four in front, two Df which .to be installed, pasted or painted at the outermost front end of the vehicle preferably on the outer tip of the frontbumper or fender and another two to be installed, pasted or painted, 5inches below the upper twO' corners of the front en.d of the body Df themotor vehicles ; and four in the rear, two of which to be installed, pastedof painted 5 jnches below the upper two corners f the rear end of thebody and the other two to be installed , pasted or painted ' 5 inches above


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1971J POLITICAL LAW 223

ing this argument , the Court reminded the petitioner below of the distinctionbetween delegation of powe r to mak e t he law and delegation of authorityas to its execution. According to the Court:

To determine wheth e r or not there is an undue delegation of legislative power, th el inquiry must be directed to the scope a nd definitenessof the measure enacted. Tbe le gis la ture does not abdicate its functionswhen it describe s what job must be .done , wbo is to do it, and wbat istbe scope of his autbority. For a complex economy, tbat may indeed beth e only way in wb,ich the legisl a tive p ro cess can go forward. "87

Perhaps the petitioner below was imprecise in his language . He prob-

ably wanted to bring out the point that the rule promulgated by theCommissioner exceeded or modified the authority conferred by the statute.He could have invoked th e rule that an administrative officer may not makea rul e or regulation that alters or enlarges the tetms of a legislative enactment. 88

VII. EXECUTIVE POWER: EX TENT OF CONTROL

The power of the executive was again defined in the case of Tecson v.Salas 89 whereby the p et itione r who was superintende nt of Dredging in theBureau of Public Works sought to nullif.y the order -of respondent Secretaryplacing p etitioner on tempo ra ry detail to the Office of the President byimpu ting to it the charac ter of removal without cause.

In denying the petition, the Court took occasion to discuss the presidential power of control over executive bureaus and offices. The court referred to pr ev iou s decisions especially in the case of Vill ena v . Se cretary othe In te rior 90 wherein Justice Laurel state d that under the presidential type ofgovernment and considering the departmental organization of our Constitution, all executive and administrative organizations ai 'e adjunc ts of the executive department , the heads of various executive depart ments are assistantsand agent s of the chief executive, and except in cases where the chief executiv e, is required by the law to act in person or the exigencies of the

situation demand th at he act personally, the multifarious executive and administrative functions of the President maybe performed through the executive departm;nt and the acts of secretaries of such departments, performedand promulgated in the regular courses of business, are presumptively theacts of the chief executive.

The court acknowledged that whjle the case of Villena v Secretary o the


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224 PHILIPPINE LAW .JOURNAL [VOL. 46

local governments is concerned, it still bolds good witb respect to tbe pro-nOl llcements on executive departments, bureaus, and offices. In fact, subse-quent decisions r elied extensive ly on the Villella ruling, especially People v.Jolliffe 91 , and P ela ez F. uditor General. q In the latter case, the court said

that the power of control implies the right of the Pre sident to interfere inthe exercise of suc h discretion as may be vested by the law in the officersof the executive departments , bureaus , or offices of the national government,as well as to act in lieu of such officers. "

The court then ruled that the detail of petitioner to the Office of thePresident was not constitutionally object ionable . According to the courtit could not be considered a removal or even a transfer and that even ifit could be so viewed , it would still be allowa ble under the Civil Service Actthen in force, so long as there was no reduc

plj volume 46 number 2 -01- pacifico a. agabin - political law - part one p191-232

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