People of the Phils vs Ferrer

8/11/2019 People of the Phils vs Ferrer

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Republic of the PhilippinesSUPREME COURTManila

EN BANC

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

PEOPLE OF THE PHILIPPINES, petitioner,vs.HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias RomyReyes 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-SubversionAct,1which outlaws the Communist Party of the Philippines and other "subversive associations," andpunishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes orremains 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 filedagainst the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 JudgeJose C. de Guzman conducted a preliminary investigation and, finding aprima facie case againstCo, directed the Government prosecutors to file the corresponding information. The twice-amendedinformation, 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, theabovenamed accused, feloniously became an officer and/or ranking leader of theCommunist Party of the Philippines, an outlawed and illegal organization aimed tooverthrow the Government of the Philippines by means of force, violence, deceit,

subversion, or any other illegal means for the purpose of establishing in thePhilippines a totalitarian regime and placing the government under the control anddomination 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 saidCommunist Party of the Philippines.

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


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

(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 therespondent Nilo Tayag and five others with subversion. After preliminary investigation was had, aninformation was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designatedby 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 violationof 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 theProvince of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere inthe Philippines, the above-named accused knowingly, willfully and by overt actsorganized, joined and/or remained as offices and/or ranking leaders, of theKABATAANG MAKABAYAN, a subversive organization as defined in Republic ActNo. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,knowingly, willfully and by over acts joined and/or remained as a member andbecame an officer and/or ranking leader not only of the Communist Party of thePhilippines but also of the New People's Army, the military arm of the CommunistParty of the Philippines; and that all the above-named accused, as such officersand/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 takeup arms against the government, and/or engage in rebellious conspiracies and riotsto 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 conductedmeetings and/or seminars wherein the said accused delivered speeches instigatingand 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 illegalmeans; and toward this end, the said accused organized, among others a chapter ofthe KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowedpurpose of undertaking or promoting an armed revolution, subversive and/orseditious propaganda, conspiracies, and/or riots and/or other illegal means todiscredit and overthrow the Government of the Republic of the Philippines and toestablished in the Philippines a Communist regime.


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2. The accused NILO TAYAG alias ROMY REYES alias TABA, together withFRANCISCO PORTEM alias KIKO Gonzales and others, pursued the abovesubversive and/or seditious activities in San Pablo City by recruiting members for theNew People's Army, and/or by instigating and inciting the people to organize andunite for the purpose of overthrowing the Government of the Republic of thePhilippines 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 theoffense: (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 thetitle 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. Weresolved 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 shallbe enacted."2A bill of attainder is a legislative act which inflicts punishment without trial.3Its essenceis the substitution of a legislative for a judicial determination of guilt. 4The constitutional ban againstbills of attainder serves to implement the principle of separation of powers 5by confining legislaturestorule-making 6and thereby forestalling legislative usurpation of the judicial function. 7History inperspective, bills of attainder were employed to suppress unpopular causes and politicalminorities, 8and it is against this evil that the constitutional prohibition is directed. The singling out ofa definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statuteas 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 attainderbecause it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to thefreedom and security of the country; its existence, a 'clear, present and grave danger to the securityof 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 theforms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to bedetermined] is whether or not the accused is a knowing and voluntary member, the law is still a bill ofattainder because it has expressly created a presumption of organizational guilt which the accusedcan never hope to overthrow."

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


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

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

(1) as an officer, director, trustee, member of any executive board or similargoverning body, business agent, manager, organizer, or other employee (other thanas an employee performing exclusively clerical or custodial duties) of any labororganization.

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

(b) Any person who willfully violates this section shall be fined not more than $10,000or 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 ora member of the governing body of any labor organization. As the Supreme Court of the UnitedStates pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedlypossesses power under the Commerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons who may use of such positionsto bring about political strikes. In section 504, however, Congress has exceeded theauthority granted it by the Constitution. The statute does not set forth a generallyapplicable rule decreeing that any person who commits certain acts or possessescertain characteristics (acts and characteristics which, in Congress' view, make themlikely 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 orpossessed the specified characteristics. Instead, it designates in no uncertain termsthe persons who possess the feared characteristicsand therefore cannot hold unionoffice without incurring criminal liabilitymembers of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81S CT 1357, lend a support to our conclusion. That case involved an appeal from anorder by the Control Board ordering the Communist Party to register as a"Communist-action organization," under the Subversive Activities Control Act of1950, 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 controllingthe world Communist movement referred to in section 2 of this title, and(ii) operatesprimarily to advance the objectives of such world Communist movement... 64 Stat989, 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


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deprivations setforth in the Act are to be imposed, but instead sets forth a generaldefinition. Although the Board has determined in 1953 that the Communist Party wasa "Communist-action organization," the Court found the statutory definition not to beso 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 nowengages, comes within the terms of the Act. If the Party should at anytime choose toabandon these activities, after it is once registered pursuant to sec. 7, the Actprovides 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 chargeCommunists in court, as the law alone, without more, would suffice to secure their punishment. Butthe undeniable fact is that their guilt still has to be judicially established. The Government has yet toprove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and thatthey joined the Party, knowing its subversive character and with specific intent to further its basicobjective, i.e., to overthrow the existing Government by force deceit, and other illegal means andplace 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 therequirement of proof of knowing membership in the Party, suffice it to say that is precisely the natureof conspiracy, which has been referred to as a "dragneet device" whereby all who participate in thecriminal covenant are liable. The contention would be correct if the statute were construed aspunishing mere membership devoid of any specific intent to further the unlawful goals of theParty. 13But the statute specifically required that membership must be knowing or active, withspecific intent to further the illegal objectives of the Party. That is what section 4 means when itrequires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfullyand by overt acts." 14The ingredient of specific intent to pursue the unlawful goals of the Party mustbe shown by "overt acts."15This constitutes an element of "membership" distinct from the ingredientof guilty knowledge. The former requires proof of direct participation in the organization's unlawfulactivities, 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 notenough to render it a bill of attainder. A statute prohibiting partners or employees of securitiesunderwriting firms from serving as officers or employees of national banks on the basis of alegislative finding that the persons mentioned would be subject to the temptation to commit actsdeemed inimical to the national economy, has been declared not to be a bill of attainder. 16Similarly,a statute requiring every secret, oath-bound society having a membership of at least twenty toregister, and punishing any person who becomes a member of such society which fails to register orremains a member thereof, was declared valid even if in its operation it was shown to apply only tothe members of the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18requiring labor unions to

file with the Department of Labor affidavits of union officers "to the effect that they are not membersof the Communist Party and that they are not members of any organization which teaches theoverthrow of the Government by force or by any illegal or unconstitutional method," was upheld bythis Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainablemembers of a group in such a way as to inflict punishment on them without a judicial trial does itbecome a bill of attainder. 20It is upon this ground that statutes which disqualified those who hadtaken part in the rebellion against the Government of the United States during the Civil War from


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holding office, 21or from exercising their profession, 22or which prohibited the payment of furthercompensation to individuals named in the Act on the basis of a finding that they had engages insubversive activities, 23or which made it a crime for a member of the Communist Party to serve asan officer or employee of a labor union, 24have 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 neededfairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26the New York legislature passed a law requiring everysecret, oath-bound society with a membership of at least twenty to register, and punishing anyperson who joined or remained a member of such a society failing to register. While the statute didnot specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining thestatute 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 StatesSupreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. TheCourt said:

The courts below recognized the principle shown in the cases just cited and reachedthe conclusion that the classification was justified by a difference between the twoclasses of associations shown by experience, and that the difference consisted (a) ina manifest tendency on the part of one class to make the secrecy surrounding itspurpose and membership a cloak for acts and conduct inimical to personal rights andpublic welfare, and (b) in the absence of such a tendency on the part of the otherclass. In pointing out this difference one of the courts said of the Ku Klux Klan, theprincipal association in the included class: "It is a matter of common knowledge thatthis organization functions largely at night, its members disguised by hoods andgowns and doing things calculated to strike terror into the minds of the people;" andlater 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 amatter of common knowledge that the association or organization of which the relatoris concededly a member exercises activities tending to the prejudice and intimidationof 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 alreadyreceived legislative scrutiny and have been granted special privileges so that thelegislature may well consider them beneficial rather than harmful agencies." The thirdcourt, after recognizing "the potentialities of evil in secret societies," and observingthat "the danger of certain organizations has been judicially demonstrated," meaning in that state, said: "Benevolent orders, labor unions and collegefraternities 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 availableincluding the published report of a hearing, before a committee of the House ofRepresentatives of the 57th Congress relating to the formation, purposes and activities ofthe Klu Klux Klan. If so it was advised putting aside controverted evidence that theorder was a revival of the Ku Klux Klan of an earlier time with additional featuresborrowed from the Know Nothing and the A. P. A. orders of other periods; that itsmemberships was limited to native-born, gentile, protestant whites; that in part of itsconstitution and printed creed it proclaimed the widest freedom for all and full adherence


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to the Constitution of the United States; in another exacted of its member an oath toshield and preserve "white supremacy;" and in still another declared any person activelyopposing its principles to be "a dangerous ingredient in the body politic of our country andan enemy to the weal of our national commonwealth;" that it was conducting a crusadeagainst Catholics, Jews, and Negroes, and stimulating hurtful religious and raceprejudices; that it was striving for political power and assuming a sort of guardianshipover the administration of local, state and national affairs; and that at times it was takinginto its own hands the punishment of what some of its members conceived to becrimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny bythis Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28In1969 we again found that the objective of the Party was the "overthrow of the Philippine Governmentby armed struggle and to establish in the Philippines a communist form of government similar to thatof Soviet Russia and Red China." 29More recently, in Lansang vs. Garcia, 30we noted the growth ofthe Communist Party of the Philippines and the organization of Communist fronts among youthorganizations 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 aboutthe 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 thePhilippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambitof the prohibition against bills of attainder. It is also necessary that it must apply retroactively andreach past conduct. This requirement follows from the nature of a bill of attainder as a legislativeadjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doublyobjectionable because of its ex post factofeatures. This is the historic explanation for uniting the twomischiefs in oneclause'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a billof attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons thatestablish that it is not are persuasive that it cannot be a bill of attainder." 31

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

... [N]o person shall hold or retain or be eligible for any public office or employment inthe service of the City of Los Angeles, in any office or department thereof, eitherelective or appointive, who has within five (5) years prior to the effective date of thissection advised, advocated, or taught, or who may, after this section becomeseffective, become a member of or affiliated with any group, society, association,organization or party which advises, advocates or teaches or has within said periodof five (5) years advised, advocated, or taught the overthrow by force or violence ofthe 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 petitionertherein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar asit purported to apply restrospectively for a five-year period to its effective date. Weassume that under the Federal Constitution the Charter Amendment is valid to theextent that it bars from the city's public service persons who, subsequently to itsadoption in 1941, advise, advocate, or reach the violent overthrow of theGovernment or who are or become affiliated with any group doing so. The provisions


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operating thus prospectively were a reasonable regulation to protect the municipalservice by establishing an employment qualification of loyalty to the State and theUnited States.

... Unlike the provisions of the charter and ordinance under which petitioners wereremoved, the statute in the Lovett case did not declare general and prospectively

operative standards of qualification and eligibility for public employment. Rather, byits terms it prohibited any further payment of compensationto named individuals oremployees. 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 conductand that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respectto 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 conductwhich it regulates is describedwith such particularity that, in probability, feworganizationswill come within the statutory terms. Legislatures may act tocurb behaviourwhich they regard as harmful to the public welfare,whether that conduct is found to beengaged in by manypersons or by one. So long as the incidence of legislation issuch thatthe persons who engage in the regulated conduct, bethey many or few, can escaperegulation merely by altering thecourse of their own present activities, there can be nocomplaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereofexpressly 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 orremain members of the Communist Party of thePhilippines and/or its successors or of anysubversive association"after June 20, 1957, are punished. Those whowere members of the Party orof 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 theirmembershipin the Party. The law expressly provides that such renunciationshall operate to exemptsuch persons from penalliability. 34The 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 ofthe Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not toprovide the basis for a legislativefinding of guilt of the members of the Party butrather to justify theproscription spelled out in section 4. Freedom of expression and freedom of association aresofundamental that they are thought by some to occupy a"preferred position" in the hierarchy ofconstitutional values. 35Accordingly, any limitation on their exercise mustbe justified by the existenceof a substantive evil. This isthe reason why before enacting the statute in questionCongressconducted careful investigations and then stated itsfindings in the preamble, thus:

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


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

... [I]n the face of the organized, systematice and persistentsubversion, national inscope but international in direction,posed by the Communist Party of the Philippinesand 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 findingsin enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failedto takeproper account of the distinction betweenlegislative fact and adjudicative fact. Professor PaulFreund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcoholwould raise a question of legislativefact, i.e., whether this standard has a reasonablerelationto public health, morals, and the enforcement problem. Alaw forbidding the

sale of intoxicating beverages (assuming itis not so vague as to requiresupplementation by rule-making)would raise a question of adjudicative fact, i.e.,whether thisor that beverage is intoxicating within the meaning of the statuteand thelimits on governmental action imposed by the Constitution. Of course what we meanby fact in each case is itselfan ultimate conclusion founded on underlying facts andoncriteria of judgment for weighing them.

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

The test formulated in Nebbia vs. new York, 37andadopted by this Court in Lansang vs. Garcia, 38isthat 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neitherarbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determinationto that effect renders a courtfunctus officio." The recital of legislative findings implements this test.

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

It is not for the courts to reexamine the validity of theselegislative findings and rejectthem....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. Wecertainly cannot dismiss them as unfoundedirrational imaginings. ... And if we acceptthem, as we mustas a not unentertainable appraisal by Congress of the threatwhichCommunist organizations pose not only to existing governmentin the United States, butto the United States as asovereign, independent Nation. ...we must recognize thatthepower of Congress to regulate Communist organizations of thisnature isextensive. 39


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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 torequire elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendesevery 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. UnitedStates: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' torebellion against dictatorial governmentsis without force where the existing structureof government provides for peaceful and orderly change. We rejectany principle ofgovernmental helplessness in the face of preparationfor revolution, which principle,carried to its logical conclusion,must lead to anarchy. No one could conceive that itisnot within the power of Congress to prohibit acts intended tooverthrow thegovernment 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 belegitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamentalpersonal liberties when the end can be more narrowly achieved." 42The requirementof knowing membership,as distinguished from nominalmembership, hasbeen held as a sufficientbasis for penalizing membershipin a subversive organization. 43For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; andwhen membership is acceptedor retained with knowledge that the organization isengaged inan unlawful purpose, the one accepting or retaining membershipwith suchknowledge 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 bypeaceful means, misconceives

the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely alegislative declaration; the definitionsof and the penalties prescribed for the different actsprescribedare stated in section 4 which requires that membershipin the Communist Party of thePhilippines, 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 forceandviolence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio insection 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. Onlyin a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the lawdoes 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] theGovernment under thecontrol and domination of an alien power." What thisCourt once said in aprosecution for sedition is appropos: "The language used by the appellant clearly importedanoverthrow of the Government by violence, and it should beinterpreted in the plain and obvioussense in which it wasevidently intended to be understood. The word 'overthrow'could not have beenintended as referring to an ordinarychange by the exercise of the elective franchise. The useof thewhip [which the accused exhorted his audience to useagainst the Constabulary], an instrumentdesigned toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation whichthe appellant wouldhave us impute to the language." 45


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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 isinfringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, isso 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 membershipprovision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assemblyof persons who teach, advocate, orencourage the overthrow or destruction of anysuch 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 notconstitutionally protected speech, and itwas further established that a combination topromote 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 noreason why membership, whenit constitutes a purposeful form of complicity in agroup engagingin this same forbidden advocacy, should receive anygreater degreeof protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies ofself-preservationand the values of liberty are as complex and intricate as inthe situation described inthe legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,thelegislative judgment as to how that threat may best bemet consistently with the safeguards ofpersonal freedomsis not to be set aside merely because the judgment of judgeswould, in the firstinstance, have chosen other methods. 48For in truth, legislation, "whether it restrains freedom tohireor freedom to speak, is itself an effort at compromisebetween the claims of the social order andindividual freedom,and when the legislative compromise in either case isbrought to the judicial testthe 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 4which reads:

And provided, finally, That one who conspires with anyother person to overthrow theGovernment of the Republic ofthe Philippines, or the government of any of itspolitical subdivisionsby force, violence, deceit, subversion or illegal means,for thepurpose of placing such Government or political subdivisionunder the control and


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domination of any lien power, shallbe punished byprision correccional toprisionmayor 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 ofthe Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow thenational 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 analiencommunist power, but under an alien democratic power likethe United States or England orMalaysia 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 andSimilarAssociations, 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 indicatesthat the subject matter is subversionin general which has for its fundamental purpose thesubstitutionof a foreign totalitarian regime in place of theexisting Government and not merelysubversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details ofthe Act. 51It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequencesof the proposed lawand its operation. 52A narrow or technical construction isto be avoided, and thestatute 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 overemphasizethe needfor prudence and circumspection in its enforcement, operatingas it does in the sensitivearea of freedom of expressionand belief. Accordingly, we set the following basic guidelines to beobserved in any prosecution under the Act.The Government, in addition to proving suchcircumstancesas may affect liability, must establish the following elementsof the crime of joining theCommunist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) thatthepurpose of the organization is to overthrow the presentGovernment of the Philippines and toestablish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that theaccused 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 theobjectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow ofthe Government by illegalmeans for the purpose of placing the country under thecontrol of a foreignpower; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovertacts.

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

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

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


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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 reachedupholding thevalidity of the Anti-Subversion Act.1It is to be admittedthat the learned and scholarlyopinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny oftheconstitutional issues raised. What is more, the stressin the concluding portion thereof on basicguidelines thatwill assure in the trial of those prosecuted under suchAct respect for theirconstitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,interpreting the bill of attainder clause2coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3as well as freedomof association 4as to impermissible inroadsto which they may be exposed, compels adifferentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety andsecurity 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 wasusuallythrough the rising up in arms, with weapons farless sophisticated than those now in existence, therewasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. Itwas as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyaltyand 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 thegovernmentalresponde 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 claimthat it is the only perspectiveor that is the most realistic, I feel that there was aninsufficientappreciation of the compulsion of the constitutionalcommands against bills of attainderand abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, allthat it would mean is that anew legislation, more in comformity to my way of thinkingto what isordained 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 subversiveactivities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaningattachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As wasexplained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billofattainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. UnitedStates, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which


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a man was tried, convictedand sentenced to death without a jury, without ahearing in court, withouthearing the witnesses againsthim and without regard to the rules of evidence. His bloodwasattainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposingproperty bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was lessthan death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex postfacto 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 AmericanSupremeCourt decision were thus in the minds of the framers.They are Cummings v.Missouri 6and Ex parteGarland. 7They speak unequivocally. Legislative acts, no matter whattheirform, that apply either to named individuals or easilyascertainable members of a group in such away 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 9was a criminal prosecution ofa Catholic priest for refusing to take the loyaltyoath 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 AmericanCivilWar. If they swore falsely, they were guilty of perjury.If they engaged in their professions withouttheoath, they were criminally liable. The United States Supreme Court condemned the provision as abill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. Thedeprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such aconclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isalegislative 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 attainderinclude bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimatefunctions, 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 safeguardsoftrial; it determines the sufficiency of the proofs produced,whether conformable to the rules ofevidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of theenormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which wehave 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 ordrafted into the military service of the UnitedStates, and, therefore, should be deprived of the righttopreach as a priest of the Catholic church, or to teach inany institution of learning, there could be noquestion thatthe clauses would constitute a bill of attainder within themeaning of the FederalConstitution. If these clauses, insteadof mentioning his name, had declared that all priestsandclergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, andhencebe 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 bethus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be noless within the inhibition of the Federal Constitution.In all these cases there would be thelegislativeenactment creating the deprivation, without any of theordinary forms and guards providedfor 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 parteGarland 11was alsodecided. 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 rulesof such Court, all that was necessarywas that the applicant have three years practice in thestatecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clauserequiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that suchcandidate 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 apresidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be


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allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a billof attainder and that at any rate,he was pardoned. The same ruling was announced by theCourtagain through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes apunishmentfor some of the acts specified which were not punishableat the time they werecommittedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thusbrought within the further inhibition of the Consitutionagainst the passage of an ex post factolaw.

Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length themeaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbiddingtheir passage by the states,and it is unnecessary to repeat here what we there said.A like prohibitionis contained in the Constitution againstenactments of this kind by Congress; and theargumentpresented in that case against certain clauses of the Constitutionof Missouri is equallyapplicable to the act ofCongress under consideration in this case."12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13decidedin 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and hadbeen for several yearsworking for the government. The government agencies,which had lawfullyemployed them, were fully satisfiedwith the quality of their work and wished to keep thememployedon 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 November15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafterappropriated except for services as jurorsor members of the armed forces, unless they wereprior toNovember 15, 1943, again appointed to jobs bythe President with the advide and consent of theSenate.Notwithstanding such Congressional enactment, and thefailure of the President to reappointthe respondents, theagencies, kept all the respondents at work on their jobs forvarying periods afterNovember 15, 1943, but their compensationwas discontinued after that date. Respondentsbroughtthis action in the Court of Claims for the salariesto which they felt entitled. The Ameican SupremeCourtstated that its inquiry was thus confined to whether theaction in the light of proper constructionof the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainderinsofar 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 ofCongressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex postLaw shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is alegislative 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 ofattainderinclude 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 whichrequired attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has everbeen overruled. They stand for the propositionthat legislative acts, no matter what their form,thatapply either to named individuals or to easily ascertainablemembers of a group in such a way as toinflictpunishment 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 15a 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 theCommunist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of alabor union. Respondent Brown, a longshoremanon the San Francisco docks, and an openandavowed Communist, for more than a quarter of a centurywas elected to the Executive Board ofLocal 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-yearterms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictmentreturned in a district court of California withservicing as a member of an executive board of alabororganization while a member of the Communist Party, inwillful violation of the above provision.


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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 wassustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the widevariation in form, purpose and effect of ante-Constitutionbills of attainder indicates that theproperscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, mustultimately 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 ourconstitutional 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 theseparation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or moresimplytrial by legislature." 16Then after referring to Cummings, Garland, and Lovett,Chief JusticeWarren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor ManagementReportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possessespower under theCommerce Clause to enact legislation designed to keepfrom positions affectinginterstate 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 notsetforth a generally applicable rule decreeing that any personwho commits certain acts or possessescertain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiatepolitical 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,itdesignates in no uncertain terms the personswho possess the fearec characteristics and thereforecannothold union office without incurring criminal liabilitymembers of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18where the provision of theSubversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States toregister was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Partybeen outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill ofattainder. It attaches notto specified organizations but to described activities inwhich an organizationmay or may not engage. The singlingout of an individual for legislatively prescribedpunishmentconstitutes 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 oforganizations which, after the date of the Act,are found to be under the direction, domination, orcontrolof certain foreign powers and to operate primarily toadvance certain objectives. This findingmust be madeafter full administrative hearing, subject to judicial reviewwhich opens the record forthe reviewing court'sdetermination whether the administrative findings as tofact are supported by thepreponderance of the evidence.Present activity constitutes an operative element to whichthe statuteattaches legal consequences, not merely a pointof reference for the ascertainment of particularlypersonsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be inthe 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 ofthe Court. The interpretation accorded to themby my brethren is, of course, different but I am unabletogo along with them especially in the light of the categoricallanguage appearing in Lovett. This isnot to lose sightof the qualification that for them could deprive such aholding of its explicit characteras shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill ofattainder it would be totally unnecessaryto charge communists in court, as the law alone,withoutmore, would suffice to secure their conviction andpunishment. But the fact is that their guilt still hasto bejudicially estblished. The Government has yet to proveat the trial that the accused joined theParty knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive


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Such an approach is reinforced by the well-settled constitutionalprinciple "that even though thegovernmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadlystifle fundamental personalliberties when the end can be more narrowly achieved.For precision ofregulation is the touchstone in an areaso closely related to our most precious freedoms." 24This is sofor "a governmental purpose to control or prevent activities constitutionally subject to state regulationmay 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 statutebe avoided. If such be the case, then theline dividing the valid from the constitutionally infirmhasbeen 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 CommunistParty casediscussed above. What is to be kept in view is that a legislativemeasure certainly lessdrastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of thisnoted 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 wasdesignedto 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 andwhatever change in the existing structureof government it may be hoped that these ideas willbringabout. 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 tostifle First Amendmentfreedoms in this country. The same arguments that areused to justify theoutlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyinother countries." 26Further he stated: "I believe with theFramers of the First Amendment that theinternal securityof a nation like ours does not and cannot be made todepend upon the use of forceby Government to make allthe beliefs and opinions of the people fit into a commonmold on anysingle subject. Such enforced conformity ofthought would tend only to deprive our people of theboldspirit of adventure and progress which has brought thisNation to its present greatness. Thecreation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is anecessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmericanCorresponding 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 ineffect 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 securitycan betterbe served by depending upon the affection of the peoplethan by attempting to instill themwith fear and dreadof the power of Government. The Communist Party hasnever been more than asmall group in this country. Andits numbers had been dwindling even before the Governmentbeganits 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 yearafter year. That is the trueAmerican way of securing this Nation against dangerousideas. Of coursethat is not the way to protect the Nationagainst actionsof violence and treason. The Foundersdrew adistinction in our Constitution which we would bewise to follow. They gave the Government thefullest 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, Icannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfullymeeting 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 ofthe challengedstatute which for me is susceptible of an interpretationthat it does represent adefeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic


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state. That certainly could not havebeen the thought of its framers; nonetheless, such anassumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is towhat apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore whatpreviously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts inmany directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme toaccept 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 thecommunist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation ofdisloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in arealistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, ofcourse,is the propaganda of the deed. What the communists promise,this government can fulfill. It isup to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are ina condition of destitution andmisery. It may not be able to change matters radically.At least, it shouldtake earnest steps in that direction.What is important for those at the bottom of the economicpyramidis that they are not denied the opportunity for abetter life. If they, or at least their children, cannotevenlook 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 completelyeliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme wouldbe 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 totallyopposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of thevitality of the democratic creed, with an expression of regret that it could not have been moreimpressively 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 theably-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 reachedupholding thevalidity of the Anti-Subversion Act.1It is to be admittedthat the learned and scholarlyopinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny oftheconstitutional issues raised. What is more, the stressin the concluding portion thereof on basicguidelines thatwill assure in the trial of those prosecuted under suchAct respect for theirconstitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,interpreting the bill of attainder clause2coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3as well as freedom

of association4

as to impermissible inroadsto which they may be exposed, compels adifferentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety andsecurity 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 nationagainst its sworn enemies. In a simplerera, where the overthrow of the government wasusuallythrough the rising up in arms, with weapons farless sophisticated than those now in existence, therewasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It


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was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyaltyand 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 thegovernmentalresponde 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 claimthat 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 attainderand abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, allthat it would mean is that anew legislation, more in comformity to my way of thinkingto what isordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertainedthenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversiveactivities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaningattachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As wasexplained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billofattainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. UnitedStates, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by whicha man was tried, convictedand sentenced to death without a jury, without ahearing in court, withouthearing the witnesses againsthim and without regard to the rules of evidence. His bloodwasattainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposingproperty bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was lessthan death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex postfacto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson wasincludedin a bill of attainder presented to Parliament becauseof his reform activities."5Two AmericanSupremeCourt decision were thus in the minds of the framers.They are Cummings v.Missouri 6and Ex parteGarland. 7They speak unequivocally. Legislative acts, no matter whattheirform, that apply either to named individuals or easilyascertainable members of a group in such away 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 9was a criminal prosecution ofa Catholic priest for refusing to take the loyaltyoath 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 AmericanCivilWar. If they swore falsely, they were guilty of perjury.If they engaged in their professions withouttheoath, they were criminally liable. The United States Supreme Court condemned the provision as abill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. Thedeprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such aconclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isalegislative 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 attainderinclude 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 safeguardsoftrial; it determines the sufficiency of the proofs produced,whether conformable to the rules ofevidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of theenormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which wehave referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of havingbeen in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled ordrafted into the military service of the UnitedStates, and, therefore, should be deprived of the righttopreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no


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question thatthe clauses would constitute a bill of attainder within themeaning of the FederalConstitution. If these clauses, insteadof mentioning his name, had declared that all priestsandclergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, andhencebe 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 bethus 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 thelegislativeenactment creating the deprivation, without any of theordinary forms and guards providedfor 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 parteGarland 11was alsodecided. 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 rulesof such Court, all that was necessarywas that the applicant have three years practice in thestatecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clauserequiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that suchcandidate 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 apresidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he beallowed to continue inpractice contending that the test oath requirement wasunconstitutional as a billof attainder and that at any rate,he was pardoned. The same ruling was announced by theCourtagain through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes apunishmentfor some of the acts specified which were not punishableat the time they werecommittedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thusbrought within the further inhibition of the Consitutionagainst the passage of an ex post factolaw.Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length themeaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbiddingtheir passage by the states,and it is unnecessary to repeat here what we there said.A like prohibitionis contained in the Constitution againstenactments of this kind by Congress; and theargumentpresented in that case against certain clauses of the Constitutionof Missouri is equallyapplicable to the act ofCongress under consideration in this case."12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13decidedin 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and hadbeen for several yearsworking for the government. The government agencies,which had lawfullyemployed them, were fully satisfiedwith the quality of their work and wished to keep thememployedon 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 November15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafterappropriated except for services as jurorsor members of the armed forces, unless they wereprior toNovember 15, 1943, again appointed to jobs bythe President with the advide and consent of theSenate.Notwithstanding such Congressional enactment, and thefailure of the President to reappointthe respondents, theagencies, kept all the respondents at work on their jobs forvarying periods afterNovember 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 SupremeCourtstated that its inquiry was thus confined to whether theaction in the light of proper constructionof the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainderinsofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by JusticeBlackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category ofCongressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex postLaw shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a


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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 ofattainderinclude 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 whichrequired attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has everbeen 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 toinflictpunishment 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 15a 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 theCommunist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of alabor union. Respondent Brown, a longshoremanon the San Francisco docks, and an openandavowed Communist, for more than a quarter of a centurywas elected to the Executive Board ofLocal 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-yearterms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictmentreturned in a district court of California withservicing as a member of an executive board of alabororganization 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 wassustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the widevariation in form, purpose and effect of ante-Constitutionbills of attainder indicates that theproperscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, mustultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and theevils it was desinged to eliminate.The best available evidence, the writings of the architectsof ourconstitutional 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 theseparation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or moresimplytrial by legislature." 16Then after referring to Cummings, Garland, and Lovett,Chief JusticeWarren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management

Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possessespower under theCommerce Clause to enact legislation designed to keepfrom positions affectinginterstate 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 notsetforth a generally applicable rule decreeing that any personwho commits certain acts or possessescertain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiatepolitical strikes) shallnot hold union office, and leave to courts and juries thejob of deciding whatpersons have committed the specifiedacts or possessed the specified characteristics. Instead,itdesignates in no uncertain terms the personswho possess the fearec characteristics and thereforecannothold union office without incurring criminal liabilitymembers of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18where the provision of theSubversive 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 Partybeen outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill ofattainder. It attaches notto specified organizations but to described activities inwhich an organizationmay or may not engage. The singlingout of an individual for legislatively prescribedpunishmentconstitutes an attainder whether the individualis called by name or described in terms ofconduct 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 oforganizations which, after the date of the Act,are found to be under the direction, domination, or


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controlof certain foreign powers and to operate primarily toadvance certain objectives. This findingmust be madeafter full administrative hearing, subject to judicial reviewwhich opens the record forthe reviewing court'sdetermination whether the administrative findings as tofact are supported by thepreponderance of the evidence.Present activity constitutes an operative element to whichthe statuteattaches legal consequences, not merely a pointof reference for the ascertainment of particularlypersonsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be inthe 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 threesubsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion ofthe Court. The interpretation accorded to themby my brethren is, of course, different but I am unabletogo along with them especially in the light of the categoricallanguage appearing in Lovett. This isnot to lose sightof the qualification that for them could deprive such aholding of its explicit characteras shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill ofattainder it would be totally unnecessaryto charge communists in court, as the law alone,withoutmore, would suffice to secure their conviction andpunishment. But the fact is that their guilt still hasto bejudicially estblished. The Government has yet to proveat the trial that the accused joined theParty knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversivecharacter and with specific intentto further its objective, i.e., to overthrow the existing Governmentbyforce, deceit, and other illegal means and placeit under the control and domination of a foreignpower. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was acriminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, therewas an indictment of the laborleader who, judging by his membership in the CommunistParty, didtransgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If theconstructionI would place on theoff-repeated pronouncementof the American Supreme Court iscorrect, 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 CommunistParty of the Philippines and similar associations,"not to mention other specific provisions, the taintofinvalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute notsuffering 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 theintellectual libertysafeguarded by the Constitution in terms of the free speechand free associtionguarantees. 21It is to be admitted thatat the time of the enactment of Republic Act No. 1700,thethreat that Communism, the Russian brand then, didpose was a painful reality for Congressionalleaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then couldneither be denied notdisparaged. There was, in the expert opinion of th

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People of the Phils vs Ferrer