778

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.
[No. 14639. March 25, 1919.]
ZACARIAS VILLAVICENCIO ET AL., petitioners, vs.
JUSTO LUKBAN ET AL., respondents.
1.CONSTITUTIONAL LAW; RlGHT OF DOMICILE;
LlBERTY; HABEAS CORpus; CONTEMPT.One hundred
and seventy women, who had lived in the segregated
district for women of ill repute in the city of Manila,
were by orders of the Mayor of the city of Manila and
the chief of police of that city isolated from society and
then at night, without their consent and without any
opportunity to consult with friends or to defend their
rights, were forcibly hustled on board steamers for
transportation to regions unknown. No law, order, or
regulation authorized the Mayor of the city of Manila or
the chief of the police of that city to force citizens of
the Philippine Islands to change their domicile from
Manila to another locality. Held: That the writ of
habeas corpus was properly granted, and that the
Mayor of the city of Manila who was primarily
responsible for the deportation, is in contempt of court
for his failure to comply with the order of the court.
2.ID.; ID.; ID.; ID.The remedies of the unhappy
victims of official oppression are three: (1) Civil action;
(2) criminal action, and (3) habeas corpus. A civil
action was never intended effectively and promptly to
meet a situation in which there is restraint of liberty.
That the act may be a crime and that the person may
be proceeded against is also no bar to the institution of
habeas corpus proceedings. Habeas corpus is the
proper remedy.

3.ID.; ID.; ID.; ID.These women, despite their being in

a sense lepers of society, are nevertheless not
chattles, but Philippine citizens protected by the same
constitutional guaranties as are other citizens.
4.ID.; ID.The privilege of domicile is a principle often
protected by constitutions and deeply imbedded in
American jurisprudence.
5.HABEAS CORPUS; NATURE.The writ of habeas
corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of
personal freedom.
6.ID. ; PARTIES.Where it is impossible for a party to
sign an application for the writ of habeas corpus, it is
proper for the writ to be submitted by some person in
his behalf.
7.ID.; JURISDICTION.It is a general rule of good
practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the Court of First
Instance.
779
8.ID. ; ID.The writ of habeas corpus may be granted
by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands.
9.ID.; ID.Whether the writ shall be made returnable
before the Supreme Court or before an inferior court
rests in the discretion of the Supreme Court and is
dependent on the particular circumstances.

10.ID.; RESTRAINT OF LIBERTY.A prime specification

of an application for a writ of habeas corpus is restraint
of liberty. The essential objects and purpose of the writ
of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is
illegal. Any restraint which will preclude freedom of
action is sufficient.
11.ID.; ID.The forcible taking of these women from
Manila by officials of that city, who handed them over
to other parties, who deposited them in a distant
region, deprived these women of freedom of
locomotion just as effectively as if they had been
imprisoned. The restraint of liberty which began in
Manila continued until the aggrieved parties were
returned to Manila and released or until they freely and
truly waived this right.
12.ID.; ID.The true principle should be that if the
respondent is within the jurisdiction of the court and
has it in his power to obey the order of the court, and
thus to undo the wrong that he has inflicted, he should
be compelled to do so.
13.ID.; ID.Even if the party to whom the writ is
addressed has illegally parted with the custody of a
person before the application for the writ, is no reason
why the writ should not issue.
14.ID. ; ID.The place of confinement is not important
to the relief if the guilty party is within the reach of
process so that by the power of the court he can be
compelled to release his grasp.

15.ID.; COMPLIANCE WITH WRIT.For respondents to

fulfill the order of the court granting the writ of habeas
corpus, three courses were open: (1) They could have
produced the bodies of the persons according to the
command of the writ; (2) they could have shown by
affidavit that on account of sickness or infirmity
these ,persons could not safely be brought before the
Court; or (3) they could have. presented affidavits to
show that the parties in question or their attorney
waived the right to be present. (Code of Criminal
Procedure, sec. 87.)
16.CONTEMPT OF COURT.The power to punish for
contempt of court should be exercised on the
preservative and not on the vindictive principle. . Only
occasionally should a court invoke its inherent power
in order to retain that respect without which the
administration of justice must falter or fail.
780
17.ID.When one is commanded to produce a certain
person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and
must order him either imprisoned or fined.
18.ID.An officer's failure to produce the body of a
person in obedience to a writ -of habeas corpus, when
he has power to do so, is contempt committed in the
face of the court.
19.GOVERNMENT OF THE PHILIPPINE ISLANDS; A
GOVERNMENT OF LAWS.The Government of the
Philippine Islands is a. government of laws. The court
will assist in retaining it as a government of laws and
not of men.

20.ID, ; ID.No official, however high, is above the law.

21.ID.; ID.The courts are the forum which functionate
to safeguard individual liberty and to punish official
transgressors.
ORIGINAL ACTION in the Supreme Court. Habeas
Corpus.
The facts are stated in the opinion of the court.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite
as remarkable as the one which this application for
habeas corpus submits for decision. While hardly to be
expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause
presents no great difficulty if there is kept in the
forefront of our minds the basic principles of popular
government,. and if we give expression to the
paramount purpose for which the courts, as an
independent power of such a government, were
constituted. The primary question isShall the
judiciary permit a government of men instead of a
government of laws to be set up in the Philippine
Islands ?
Omitting much extraneous matter, of no moment to
these proceedings, but which might prove profitable
reading for other departments of the government, the
facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice,
ordered the segregated district for women of ill repute,
which had been permitted for a number of years in the
city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to

their houses in the district by the police. Presumably,

during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for
sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the
coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers,. At any rate,
about midnight of October 25, the police, acting
pursuant to orders from the. chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo
Lukban, descended upon the houses, hustled some
170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The
women were given no opportunity to collect their
belongings, and apparently were under the impression
that they were being taken to a police station for an
investigation. They had no knowledge that they were
destined for a lif e in Mindanao. They had not been
asked if they wished to depart from that region and
had neither directly nor indirectly given their consent
to the deportation. The involuntary guests were
received on board the steamers by a representative of
the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling
passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on
October 29. The women were landed and receipted for
as laborers by Francisco Sales, provincial governor of
Davao, and by Feliciano Yigo and Rafael Castillo. The
governor and the hacendero Yigo, who appear as
parties in the case, had no previous notification that
the women were prostitutes who had been expelled
from the city of Manila. The further happenings to
these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not

essential to the disposition of this case. Suffice it to

say, generally, that some of the women married,
others assumed more or less clandestine relations with
men, others went to
work in different capacities, others assumed a life
unknown and disappeared, and a goodly portion found
means to return to Manila.
To turn back in our narrative, just about the time the
Corregidor and the Negros were putting in to Davao,
the attorney for the relatives and friends of a
considerable number of the deportees presented an
application f or habeas corpus to a member of the
Supreme Court. Subsequently, the application, through
stipulation of the parties, was made to include all of
the women who were sent away from Manila to Davao
and, as the same questions concerned them all, the
application will be considered as including them. The
application set forth the salient facts, which need not
be repeated, and alleged that the women were illegally
restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the
city of Manila, and by certain unknown parties. The
writ was made returnable before the full court. The city
fiscal appeared f or the respondents, Lukban and
Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the
writ should not be granted because the petitioners
were not proper parties, because the action should
have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because
the respondents did not have any of the women under
their custody or control, and because their jurisdiction
did not extend beyond the boundaries of the city of.
Manila. According to an exhibit attached to the answer
of the fiscal, the 170 women were destined to be

laborers, at good salaries, on the haciendas of Yigo

and Governor Sales. In open court, the fiscal admitted,
in answer to a question of a member of the court, that
these women had been sent out of Manila without their
consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the
city of Manila, Francisco Sales, governor of the
province of Davao, and Feliciano Yigo, an hacendero
of Davao, to bring bef ore the court the persons
therein named, alleged to be deprived of their liberty,
on December 2, 1918.
Before the date mentioned, seven of the women had
returned to Manila at their own expense. On motion of
counsel for petitioners, their testimony was taken
before the clerk of the Supreme Court sitting as
commissioner. On the day named in the order,
December 2d, 1918, none of the persons in whose
behalf the writ was issued were produced in court by
the respondents. It has since been shown that three of
those who had been able to come back to Manila
through their own efforts, were notified by the police
and the secret service to appear before the court. The
fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him
when pleading to the original petition. copied a
telegram f rom the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director
of Labor and the attorney for that Bureau then in
Davao, and offered certain affidavits showing that the
women were contented with their life in Mindanao and
did not wish to return to Manila. Respondent Sales
answered alleging that it was not possible to fulfill the
order of the Supreme Court because the women had

never been under his control, because they were at

liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent
Yigo answered alleging that he did not have any of
the women under his control and that therefore it was
impossible for him to obey the mandate. The court,
after due deliberation, on December 10, 1918,
promulgated a second order, which related that the
respondents had not complied with the original order
to the satisfaction of the court nor explained their
failure to do so, and therefore directed that those of
the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yigo on
January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce
the right, or unless the respondents should
demonstrate some other legal motives that made
compliance impossible. It was further stated that the
question of whether the respondents were in contempt
of court would later be decided and the reasons for the
order announced in the final decision.

in the habeas corpus. In subStance, it was stated that

the respondents, through their representatives and
agents, had succeeded in bringing from Davao with
their consent eight women; that eighty-one women
were found in Davao who, on notice that if they
desired they could return to Manila, transportation
free, renounced the right through sworn statements;
that fiftynine had already returned to Manila by other
means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find
Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of the police
f orce of the city of Manila, Feliciano Yigo, an
hacendero of Davao, Modesto Joaquin, the attorney for
the Bureau of Labor, and Anacleto Diaz, fiscal of the
city of Manila, in contempt of court. The city fiscal
requested that the rplica, al memorandum de los
recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.

Before January 13, 1919, f urther testimony including

that of a number of the women, of certain detectives
and policemen, and of the provincial governor of
Davao, was taken before the clerk of the Supreme
Court sitting as commissioner and the clerk of the
Court of First Instance of Davao acting in the same
capacity. On January 13, 1919, the respondents
technically presented before the Court the women who
had returned to the city through their own efforts and
eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their
returns, once again recounted the facts and further
endeavored to account for all of the persons involved

In the second order, the court promised to give the

reasons for granting the writ of habeas corpus in the
final decision. We will now proceed to do so.
One f act, and one fact only, need be recalledthese
one hundred and seventy women were isolated from
society, and then at night, without their consent and
without any opportunity to consult with friends or to
defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown.
Despite the feeble attempt to prove that the women
left voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary

and that these officers of the law chose the shades of

night to cloak their secret and stealthy acts. Indeed,
this is a fact impossible to refute and practically
admitted by the respondents.
With this situation, a court would next expect to
resolve the questionBy authority of what law did the
Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to
another distant locality within the Philippine Islands?
We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine
Islands in conformity with an Act of Congress. The
Governor-General can order the eviction of undesirable
aliens after a hearing from the Islands. Act No. 519 of
the Philippine Commission and section 733 of the
Revised Ordinances of the city of Manila provide for
the conviction and punishment by a court of justice of
any person who is a common prostitute. Act No, 899
authorizes the return of any citizen of the United
States, who may have been convicted of vagrancy, to
the homeland. New York and other States have
statutes providing for the commitment to the House of
Refuge of women convicted of being common
prostitutes. Always a law! Even when the health
authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion
leper colony, it is done pursuant to some law or order.
But one can search in vain for any law, order, or
regulation, which even hints at the right of the Mayor
of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islandsand these
women despite their being in a sense lepers of society
are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are
other citizensto change their domicile from Manila to
another locality. On the contrary, Philippine penal law

specifically punishes any public officer who, not being

expressly authorized by law or regulation, compels any
person to change his residence.
In other countries, as in Spain and Japan, the privilege
of domicile is deemed so important as to be found in
the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a
principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to
require a constitutional sanction. Even the GovernorGeneral of the Philippine Islands, even the President of
the United States, who has often been said to exercise
more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much
less, therefore, has the executive of a municipality,
who acts within a sphere of delegated powers. If the
mayor and the chief of police could, at their mere
behest or even for the most praiseworthy of motives,
render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same
privilege. If these officials can take to themselves such
power, then any other official can do the same. And if
any official can exercise the power, then all persons
would have just as much right to do so. And if a
prostitute could be sent against her wishes and under
no law f rom one locality to another within the country,
then officialdom can hold the same club over the head
of any citizen.
Law defines power. Centuries ago Magna Charta
decreed that"No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties,
or free customs, or be outlawed, or exiled, or any other
wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or
by the law of the land. We will sell to no man, we will

not deny or def er to any man either justice or right."

(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 Eng.
Stat. at Large, 7.) No official, no matter how high, is
above the law. The courts are the forum which
functionate to safeguard individual liberty and to
punish official transgressors. "The law," said Justice
Miller, delivering the opinion of the Supreme Court of
the United States, "is the only supreme power in our
system of government, and every man who by
accepting office participates in its functions is only the
more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U. S. vs. Lee
[1882], 106 U. S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another
case, "that one man may be compelled to hold his life,
or the means of living, or any material right essential
to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U. S., 356, 370.) All this
explains the motive in issuing the writ of habeas
corpus, and makes clear why we said in the very
beginning that the primary question was whether the
courts should permit a government of men or a
government of laws to be established in the Philippine
Islands.
What are the remedies of the unhappy victims of
official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3)
habeas corpus.
The first is an optional but rather slow process by
which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to
pursue such an action, but it was never intended

effectively and promptly to meet any such situation as

that now before us.
As to criminal responsibility, it is true that the Penal
Code in force in these Islands provides:
"Any public officer not thereunto authorized by law or
by regulations of a general character in force in the
Philippines who shall banish any person to a place
more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a
court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized
by law or by regulation of a general character in force
in the Philippines who shall compel any person to
change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six
hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas" (Art. 211.)
We entertain no doubt but that, if, after due
investigation, the proper prosecuting officers find that
any public officer has violated this provision of law,
these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended
the same official in this action. Nevertheless, that the
act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant
proceedings. To quote the words of Judge Cooley in a
case which will later be referred to"It would be a
monstrous anomaly in the law if to an application by
one unlawfully confined, to be restored to his liberty, it
could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely
until the guilty party was tried and punished therefor
by the slow process of criminal procedure." (In the

matter of Jackson [1867], 15 Mich., 416, 434.) The writ

of habeas corpus was devised and exists as a speedy
and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are
left untouched by decision on the writ, whose principal
purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy,
respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (1) that
there is a defect in parties petitioners, (2) that the
Supreme Court should not assume jurisdiction, and (3)
that the persons in question are not restrained of their
liberty by respondents, It was finally suggested that
the jurisdiction of the Mayor and the chief of police of
the city of Manila only extends to the city limits and
that perf orce they could not bring the women from
Davao.
The first defense was not pressed with any vigor by
counsel. The petitioners were relatives and friends of
the deportees. The way the expulsion was conducted
by the city officials made it impossible for the women
to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure,
sec. 78; Code of Civil Procedure, sec. 527.) The law, in
its zealous regard for personal liberty, even makes it
the duty of a court or judge to grant a writ of habeas
corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.)
Petitioners had standing in court.
The fiscal next contended that the writ should have
been asked f or in the Court of First Instance of Davao
or should have been made returnable before that

court. It is a general rule of good practice that, to

avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to the
nearest judge of the court of first instance. But this is
not a hard and fast rule. The writ of habeas corpus
may be granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippine Islands.
(Code of Criminal Procedure, sec. 79; Code of Civil
Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an
inferior court rests in the discretion of the Supreme
Court and is dependent on the particular
circumstances. In this instance it was not shown that
the Court of First Instance of Davao was in session, or
that the women had any means by which to advance
their plea bef ore that court. On the other hand, it was
shown that the petitioners with their attorneys, and
the two original respondents with their attorney, were
in Manila; it was shown that the case involved parties
situated in different parts of the Islands; it was shown
that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of
and decided immediately by the appellate court. The
failure of the superior court to consider the application
and then to grant the writ would have amounted to a
denial of the benefits of the writ.
The last argument of the fiscal is more plausible and
more difficult to meet. When the writ was prayed for,
says counsel, the parties in whose behalf it was asked
were under no restraint; the women, it is claimed,
were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city
limits. At first blush, this is a tenable position. On
closer examination, acceptance of such dictum is f

ound to be perversive of the first principles of the writ

of habeas corpus.
A prime specification of an application for a writ of
habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials
of that city, who handed them over to other parties,
who deposited them in a distant region, deprived
these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in
Davao without either money or personal belongings,
they were prevented from exercising the liberty of
going when
and where they pleased. The restraint of liberty which
began in Manila continued until the aggrieved parties
were returned to Manila and released or until they
freely and truly waived this right.
Consider for a moment what an agreement with such a
defense would mean. The chief executive of any
municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond
the boundaries of the municipality, and then, when
called upon to defend his official action, could calmly
fold his hands and claim that the person was under no
restraint and that he, the official, had no jurisdiction
over this other municipality. We believe the true
principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey
the order of the court and thus to undo the wrong that
he has inflicted, he should be compelled to do so. Even
if the party to whom the writ is addressed has illegally
parted with the custody of a person before the

application for the writ is no reason why the writ

should not issue. If the mayor and the chief of police,
acting under no authority of law, could deport these
women from the city of Manila to Davao, these same
officials must necessarily have the same means to
return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to
restrain a fellow citizen of her liberty by forcing her to
change her domicile and to avow the act with impunity
in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The
great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore
been presented to the courts for decision.
Nevertheless, strange as it may seem, a close
examination of the authorities f ails to reveal any
analogous case. Certain decisions of respectable
courts are however very persuasive in nature.
A question came before the Supreme Court of the
State of Michigan at an early date as to whether or not
a writ of habeas corpus would issue from the Supreme
Court to a person within the jurisdiction of the State to
bring into the
State a minor child under guardianship in the State,
who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court
at this time was notable. It was composed of Martin,
chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was
equally divided. Campbell, J,, with whom concurred
Martin, C. J., held that the writ should be quashed.
Cooley, J., one of the most distinguished American
judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since
the opinion of Justice Campbell was predicated to a

large extent on his conception of the English decisions,

and since, as will hereafter appear, the English courts
have taken a contrary view, only the f ollowing
eloquent passages from the opinion of Justice Cooley
are quoted:
"I have not yet seen sufficient reason to doubt the
power of this court to issue the present writ on .the
petition which was laid before us. * * *
"It would be strange indeed if, at this late day, after
the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood
shed for its establishment; after its many
confirmations, until Coke could declare in his speech
on the petition of right that 'Magna Charta was such a
fellow that he will have no sovereign,' and after the
extension of its benefits and securities by the petition
of right, bill of rights and habeas corpus acts, it should
now be discovered that evasion of that great clause for
the protection of personal liberty, which is; the life and
soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined
without delay, that the legislature may apply the
proper remedy, as I can not doubt they would, on the
subject being brought to their notice. * * *
"The second propositionthat the statutory provisions
are confined to the case of imprisonment within the
stateseems to me to be based upon a misconception
as to the source of our jurisdiction. It was never the
case in England that the court of king's bench derived
its jurisdiction to
issue and enforce this writ from the statute. Statutes
were not passed to give the right, but to compel the
observance of rights which existed. * * *
"The important f act to be observed in regard to the
mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his

jailor. It does not reach the former except through the

latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but
the court relieves him by compelling the oppressor to
release his constraint The whole force of the writ is
spent upon the respondent, and if he fails to obey it,
the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the
ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party
is within reach of process, so that by the power of the
court he can be compelled to release his grasp. The
difficulty of affording redress is not increased by the
confinement being beyond the limits of the state,
except as greater distance may affect it. The important
question is, where is the power of control exercised?
And I am aware of no other remedy." (In the matter of
Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted
as authoritative by other courts. (Rivers vs. Mitchell
[1881], 57 Iowa, 193; Breene vs, People [1911], Colo.,
117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)
The English courts have given careful consideration to
the subject. Thus, a child had been taken out of
England by the respondent. A writ of habeas corpus
was issued by the Queen's Bench Division upon the
application of the mother and her husband directing
the defendant to produce the child. The judge at
chambers gave defendant until a certain date to
produce the child, but he did not do so. His return
stated that the child before the issuance of the writ
had been handed over by him to another; that it was

no longer in his custody or control, and that it was

impossible
for him to obey the writ. He was found in contempt of
court. On appeal, the court, through Lord Esher, M. R.,
said:
"A writ of habeas corpus was ordered to issue, and was
issued on January 22. That writ commanded the
defendant to have the body of the child before a judge
in chambers at the Royal Courts of Justice immediately
after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to
bring the child before the judge and must be obeyed,
unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the
possession of the child before the issuing of the writ,
the defendant had no longer power to produce the
child, that might be an answer; but in the absence of
any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for
not obeying the writ without lawful excuse. Many
efforts have been made in argument to shift the
question of contempt to some anterior period f or the
purpose of showing that what was done at some time
prior to the writ cannot be 'a contempt. But the
question is not as to what was done bef ore the issue
of the writ. The question is whether there has been a
contempt in disobeying the writ after it was issued by
not producing the child in obedience to its commands."
(The Queen vs. Barnardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re
Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B.
D., 283.)

A decision coming from the Federal Courts is also of

interest. A habeas corpus was directed to 'the
defendant to have before the circuit court of the
District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the
writ, stated on oath that he had purchased the negroes
as slaves in the city of Washington; that, as he
believed, they were removed beyond the District of
Columbia before the service of the writ of habeas
corpus,
and that they were then beyond his control and out of
his custody. The evidence tended to show that Davis
had removed the negroes because he suspected they
would apply for a writ of habeas corpus. The court held
the return to be evasive and insufficient, and that
Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them,
ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court
afterwards ordered that Davis be released upon the
production of two of the negroes, for one of the
negroes had run away and been lodged in jail in
Maryland. Davis produced the two negroes on the last
day of the term. (United States vs. Davis [1839], 5
Cranch C. C., 622, Fed. Cas. No. 14926. See also Robb
vs. Connolly [1883], 111 U. S., 624; Church on Habeas
Corpus, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that
no one of the defenses offered by the respondents
constituted a legitimate bar to the granting of the writ
of habeas corpus.
There remains to be considered whether the
respondents complied with the two orders of the
Supreme Court awarding the writ of habeas corpus,

'and if it be found that they did not, whether the

contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the
writ bef ore the court on December 2,1918. The order
was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to
comply with the writ. As far as the record discloses,
the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial
governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his
chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to
do so because of having contracted debts. The halfhearted effort naturally resulted in none of the parties
in question being brought bef ore the court on the day
named.
For the respondents to have fulfilled the court's order,
three optional courses were open: (1) They could have
produced the bodies of the persons according to the
command of the writ; or (2) they could have shown by
affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court;
or (3) they could have presented affidavits to show
,that the parties in question or their attorney waived
the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the
persons in whose behalf the writ was granted; they did
not show impossibility of performance; and they did
not present writings that waived the right to be
present by those interested. Instead a few stereotyped
affidavits purporting to show that the women were
contented with their life in Davao, some of which have

since been repudiated by the signers, were appended

to the return. That through ordinary diligence a
considerable number of the women, at least sixty,
could have been brought back to Manila is
demonstrated by the fact that during this time they
were easily to be found in the municipality of Davao,
and that about this number either returned at their
own expense or were produced at the second hearing
by the respondents.
The court, at the time the return to its first order was
made, would have been warranted summarily in
finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the order.
Their excuses for the non-production of the persons
were far from sufficient. The authorities cited herein
pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus writ
must be fulfilled. For example, in Gossage's case,
supra, the Magistrate in referring to an earlier decision
of the Court, said: "We thought that, having brought
about that state of things by his own illegal act, he
must take the consequences; and we said that he was
bound to use every effort to get the child back; that he
must do much more than write letters for the purpose;
that he must advertise in America, and even if
necessary himself go after the child, and do everything
that mortal man could do in the matter; and that the
court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the
return did not show that every possible effort to
produce the women was made by the respondents.
That the court forebore at this time to take drastic
action was because it did not wish to see presented to
the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it
desired to give the respondents another chance to

demonstrate their good faith and to mitigate their

wrong.
In response to the second order of the court, the
respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched
to Mindanao, placards were posted, the constabulary
and the municipal police joined in rounding up the
women, and a steamer with free transportation to
Manila was provided. While charges and countercharges in such a bitterly contested case are to be
expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this
effect may be influenced somewhat by our sincere
desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any
particular individual is still restrained of her liberty, it
can be made the object of separate habeas corpus
proceedings.
Since the writ has already been granted, and since we
find a substantial compliance with it, nothing further in
this connection remains to be done.
The attorney for the petitioners asks that we find in
contempt of court Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez, and Fernando Ordax, members
of the police force of the city. of Manila, Modesto
Joaquin, the attorney for the Bureau of Labor, Feliciano
Yigo, an hacendero of Davao, and Anacleto Diaz,
Fiscal of the city of Manila.
The power to punish for contempt of court should be
exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its
inherent power in order to retain that respect without

which the administration of justice must falter or fail.

Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer
a valid excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and
must order him either imprisoned or fined. An officer's
failure to produce the body of a person in obedience to
a writ of habeas corpus when he has power to do so, is
a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson
[1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with
judicial regard for human imperfections, we cannot say
that any of the respondents, with the possible
exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority,
Respondents Hohmann, Rodriguez, Ordax, and Joaquin
only followed the orders of their chiefs, and while,
under the law of public officers, this does not
exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yigo appears
to have been drawn into the case through a
misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as
the legal representative of the city government.
Finding him innocent of any disrespect to the court, his
counter-motion to strike from the record the
memorandum of attorney for the petitioners, which
brings him into this undesirable position, must be
granted. When all is said and done, as far as this
record discloses, the official who was primarily
responsible for the unlawful deportation, who ordered
the police to accomplish the same, who made

arrangements for the steamers and the constabulary,

who conducted the negotiations with the
Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the
return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention
to suppress the social evil was commendable. His
methods were unlawful. His regard for the writ of
habeas corpus issued by the court was only tardily and
reluctantly acknowledged. It would be possible to turn
to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved
as much as P400 each, which would reach to many
thousands of pesos, and in addition to deal with him as
for a contempt. Some members of the court are
inclined to this stern view. It would also be possible to
find that since respondent Lukban did comply
substantially with the second order of the court, he has
purged his contempt of the first order. Some members
of the court are inclined to this merciful view. Between
the two extremes appears to lie the correct finding.
The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass
the administration of justice to such an extent that his
later activity may be considered only as extenuating
his conduct. A nominal fine will at once command such
respect without being unduly oppressivesuch an
amount is P100.
In rsumas before stated, no further action on the
writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz
are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into

the office of the clerk of the Supreme Court within five

days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike from
the record the Rplica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall
be taxed against respondents! So ordered.
In concluding this tedious and disagreeable task, may
we not be permitted to express the hope that this
decision may serve to bulwark the f ortifications of an
orderly government of laws and to protect. individual
liberty from illegal encroachment.
Arellano, C. J., Avancea, and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion
of the majority in the decision of the habeas corpus
proceeding against Just Lukban, the mayor of this city.
There is nothing in the record that shows the motive
which impelled Mayor Lukban to oblige a great number
of women of various ages, inmates of the houses of
prostitution situated in Gardenia Street, district of
Sampaloc, to change their residence.
We know no express law, regulation, or ordinance
which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street,
Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed
aboard a steamer and transported to Davao,
considering that the existence of the said houses of
prostitution has been tolerated for so long a time, it is
undeniable that the mayor of the city, in proceeding in
the manner shown, acted without authority of any
legal provision which constitutes an exception to the
laws guaranteeing the liberty and the individual rights
of the residents of the city of Manila.

We do not believe in the pomp and ostentation of force

displayed by the police in complying with the order of
the mayor of the city; neither do we believe in the
necessity of taking them to the distant district of
Davao. The said governmental authority, in carrying
out his intention to suppress the segregated district or
the community formed by those women in Gardenia
Street, could have obliged the said women to return to
their former residences in this city or in the provinces,
without the necessity of transporting them to
Mindanao; hence the said official is obliged to bring
back the women who are still in Davao so that they
may return to the places in which they lived prior to
their becoming inmates of certain houses in Gardenia
Street.
As regards the manner whereby the mayor complied
with the orders of this court, we do not find any
apparent disobedience and marked absence of respect
in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties
encountered in bringing the said women who were free
at Davao and presenting them before this court within
the time fixed, inasmuch as it does not appear that the
said women were living together in a given place. It
was not because they were really detained, but
because on the first days there were no houses in
which they could live with a relative independent from
one another, and as a proof that they were free a
number of them returned to Manila and the others
succeeded in living separate from their companions
who continued living together.
To determine whether or not the mayor acted with a
good purpose and legal object and whether he has
acted in good or bad faith in proceeding to dissolve the
said community of prostitutes and to oblige them to
change their domicile, it is necessary to consider not

only the rights and interests of the said women and

especially of the patrons who have been directing and
conducting such a reproachable enterprise and
shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous
people of Manila where relatively a few transients
accidentally and for some days reside, the inhabitants
thereof being more than three hundred thousand
(300,000) who can not, with indifference and without
repugnance, live in the same place with so many
unfortunate women dedicated to prostitution.
If the material and moral interests of the community
as well as the demands of social morality are to be
taken into account, it is not possible to sustain that it
is legal and permissible to establish a house of
pandering or prostitution in the midst of an
enlightened population, for, although there were no
positive laws prohibiting the existence of such houses
within a district of Manila, the dictates of common
sense and dictates of conscience of its inhabitants are
sufficient to warrant the public administration, acting
correctly, in exercising the inevitable duty of ordering
the closing and abandonment of a house of
prostitution ostensibly open to the public, and of
obliging the inmates thereof to leave it, although such
a house is inhabited by its true owner who invokes in
his behalf the protection of the constitutional law
guaranteeing his liberty, ,his individual rights, and his
right to property.
A cholera patient, a leper, or any other person affected
by a known contagious disease cannot invoke in his
favor the constitutional law which guarantees his
liberty and individual rights, should the administrative
authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in
order to free from contagion the great majority of the

inhabitants of the country who fortunately do not have

such diseases. The same reasons exist or stand good
with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger
because the first persons named have contracted their
diseases without their knowledge and even against
their will, whereas the unfortunate prostitutes
voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing
positively that their constant intercourse with men of
all classes, notwithstanding the cleanliness and
precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as
syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women,
is still prejudicial to the human species in the same
degree, scope, and seriousness as cholera,
tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and
very serious prejudice to poor humanity.
If a young woman, instead of engaging in an
occupation or works suitable to her sex, which can
give her sufficient remuneration for her subsistence,
prefers to put herself under the will of another woman
who is usually older than she is and who is the
manager or owner of a house of prostitution, or
spontaneously dedicates herself to this shameful
profession, it is undeniable that she voluntarily and
with her own knowledge renounces her liberty and
individual rights guaranteed by the Constitution,
because it is evident that she can not join the society
of decent women nor can she expect to get the same
respect that is due to the latter, nor is it possible for
her to live within the community or society with the
same liberty and rights enjoyed by every citizen.
Considering her dishonorable conduct and life, she

should therefore be comprised within that class which

is always subject to the police and sanitary regulations
conducive to the maintenance of public decency and
morality and to the conservation of public health, and
for this reason it should not be permitted that the
unfortunate women dedicated to prostitution evade
the just orders and resolutions adopted by the
administrative authorities.
It is regrettable that unnecessary rigor was employed
against the said poor women, but those who have
been worrying so much about the prejudice resulting
from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have
failed to consider with due reflection the interests of
the inhabitants of this city in general and particularly
the duties and responsibilities weighing upon the
authorities which administer and govern it; they have
forgotten that many of those who criticize and censure
the mayor are fathers of families and are in duty
bound to take care of their children.
For the foregoing reasons, we reach the conclusion
that when the petitioners, because of the abnormal life
they assumed, were obliged to change their residence
not by a private citizen but by the mayor of the city
who is directly responsible for the conservation of
public health and social morality, the latter could take
the step he had taken, availing himself of the services
of the police in good faith and only with the purpose of
protecting the immense majority of the population
from the social evils and diseases which the houses of
prostitution situated in Gardenia Street have been
producing, which houses have been constituting for
years a true center for the propagation of veneral
diseases and other evils derived therefrom. Hence, in
ordering the dissolution and abandonment of the said
houses of prostitution and the change of the domicile

of the inmates thereof, the mayor did not in bad faith

violate the constitutional law which guarantees the
liberty and the individual rights of every Filipino,
inasmuch as the women petitioners do not absolutely
enjoy the said liberty and rights, the exercise of which
they have voluntarily renounced in exchange for the
free practice of their shameful profession.
In very highly advanced and civilized countries, there
have been adopted by the administrative authorities
similar measures, more or less rigorous, respecting
prostitutes, considering them prejudicial to the people,
although it is true that in the execution of such
measures more humane :and less drastic procedures,
fortiter in re et suaviter in forma, have been adopted,
but such procedures have always had in view the
ultimate object of the Government for the sake of the
community, that is, putting an end to the living
together in a certain place of women dedicated to
prostitution and changing their domicile, with the
problematical hope that they adopt another manner of
living which is better and more useful to themselves
and to society.
In view of the foregoing remarks, we should hold, as
we hereby hold, that Mayor Justo Lukban is obliged to
take back and restore the said women who are at
present found in Davao, and who desire to return to
their former respective residences, not in Gardenia
Street, Sampaloc District, with the exception of the
prostitutes who should expressly make known to the
clerk of court their preference to reside in Davao,
which manifestation must be made under oath. This
resolution must be transmitted to the mayor within the
shortest time possible f or its due compliance. The
costs shall be charged de officio.
ARAULLO, J., dissenting in part:

1 regret to dissent from the respectable opinion of the

majority in the decision rendered in these proceedings,
with respect to the finding as to the importance of the
contempt committed, according to the same decision,
by Justo Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal fine of ?
100.
In the said decision, it is said:
"The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the
writ before the court on December 2,1918. The order
was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to
comply with the writ. As far as the record discloses,
the mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial
governor of Davao. According to the response of the
Attorney for the Bureau of Labor to the telegram of his
chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to
do so because of having contracted debts. The halfhearted effort naturally resulted in none of the parties
in question being brought before the court on the day
named."
In accordance with section 87 of General Orders No.
58, as is said in the same decision, the respondents,
for the purpose of complying with the order of the
court, could have, (1) produced the bodies of the
persons according to the command of the writ; (2)
shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought
before this court; and (3) presented affidavits to show
that the parties in question or their lawyers waived
their right to be present. According to the same

decision, the said respondents "* * * did not produce

the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance;
and did not present writings that waived the right to
be present by those interested. Instead, a few
stereotyped affidavits purporting to show that the
women were contented with their life in Davao, some
of which have since been repudiated by the signers,
were appended to the return. That through ordinary
diligence a considerable number of the women, at
least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they
were easily to be found in ,the municipality of Davao,
and that about this number either returned at their
own expense or were produced at the second hearing
by the respondents."
The majority opinion also recognized that, "The court,
at the time the return to its first order was made,
would have been warranted summarily in finding the
respondent guilty of contempt of court, and in sending
them to jail until they obeyed the order. Their excuses
for the non production of the persons were far from
sufficient." To corroborate this, the majority decision
cites the case of the Queen vs. Barnardo, Gossage's
Case ([1890], 24 Q. B. D., 283) and added "that the
return did not show that every possible effort to
produce the women was made by the respondents."
When the said return by the respondents was made to
this court in banc and the case discussed, my opinion
was that Mayor Lukban should have been immediately
punished for contempt. Nevertheless, a second order
referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the
court, on January 13, 1919, the women who were not
in Manila, unless they could show that it was
impossible to comply with the said order on the two

grounds previously mentioned. With respect to this

second order, the same decision has the following to
say:
"In response to the second order of the court, the
respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched
to Mindanao, placards were posted, the constabulary
and the municipal police joined in rounding up the
women, and a steamer with free transportation to
Manila was provided. While charges and
countercharges in such a bitterly contested case are to
be expected, and while a critical reading of the record
might reveal a failure of literal fulfilment with our
mandate, we come to conclude that there is a
substantial compliance with it."
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo
Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the
21st of the same month bef ore taking the first step f
or compliance with the mandate of the said order; he
waited till the 21st of November, as the decision says,
before he sent a telegram to the provincial governor of
Davao and naturally this half-hearted effort, as is so
qualified in the decision, resulted in that none of the
women appeared before this court on December 2d.
Thus, the said order was not complied with, and in
addition to this noncompliance there was the
circumstance that seven of the said women having
returned to Manila at their own expense before the
said second day of December and being in the
antechamber of the court room, which fact was known
to Chief of Police Hohmann, who was then present at
the trial and to the attorney for the respondents, were
not produced before the court by the respondents nor

did the latter show any effort to present them, in spite

of the fact that their attention was called to this
particular by the undersigned.
The result of the said second order was, ,as is said in
the same decision, that the respondents, on January
13th, the day fixed for the production of the women
before this court, presented technically the seven (7)
women above-mentioned who had returned to the city
at their own expense and the other eight (8) women
whom the respondents themselves brought to Manila,
alleging moreover that their agents and subordinates
succeeded in bringing them from Davao with their
consent; that in Davao they found eighty-one (81)
women who, when asked if they desired to return to
Manila with free transportation, renounced such a
right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means,
fifty-nine (59) women have already returned to Manila,
but notwithstanding the efforts made to find them it
was not possible to locate the whereabouts of twentysix (26) of them. Thus, in short, out of the one hundred
and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor
Lukban and Chief of Police Hohmann and transported
to Davao against their will, only eight (8) have been
brought to Manila and presented before this court by
the respondents in compliance with the said two
orders. Fifty-nine (59) of them have returned to Manila
through other means not furnished by the
respondents, twenty-six of whom were brought by the
attorney for the petitioners, Mendoza, on his return
from Davao. The said attorney paid out of his own
pocket the transportation of the said twenty-six
women. Adding to these numbers the other seven (7)
women who returned to this city at their own expense
before January 13 we have a total of sixty-six (66),

which evidently proves, on the one hand, the falsity of

the allegation by the respondents in their first answer
at the trial of December 2, 1918, giving as one of the
reasons for their inability to present any of the said
women that the latter were content with their life in
Mindanao and did not desire to return to Manila; and,
on the other,.that the respondents, especially the first
named, that is Mayor Justo Lukban, who acted as chief
and principal in all that refers to the compliance with
the orders issued by this court, could bring before
December 2d, the date of the first hearing of the case,
as well as before January 13th, the date fixed for the
compliance with the second order, if not the seventyfour (74) women already indicated, at least a great
number of them, or at least sixty (60) of them, as is
said in the majority decision, inasmuch as the said
respondent could count upon the aid of the
Constabulary forces and the municipal police, and had
transportation facilities for the purpose. But the said
respondent mayor brought only eight (8) of the women
before this court on January 13th. This fact can not, in
my judgment, with due respect to the majority opinion,
justify the conclusion that the said respondent has
substantially complied with the second order of this
court, but on the other hand demonstrates that he has
not complied with the mandate of this court in its first
and second orders; that neither of the said orders has
been complied with by the respondent Justo Lukban,
Mayor of the city of Manila, who is, according to the
majority decision, principally responsible f or the
contempt, to which conclusion I agree. The conduct of
the said respondent with respect to the second order
confirms the contempt committed by non-compliance
with the first order and constitutes a new contempt
because of non-compliance with the second, because
the production of only eight (8) of the one hundred and

eighty-one (181) women who have been illegally

detained by virtue of his order and transported to
Davao against their will, committing the twenty-six
(26) women who could not be found in Davao,
demonstrates in my opinion that, notwithstanding the
nature of the case which deals with the remedy of
habeas corpus, presented by the petitioners and
involving the question whether they should or not be
granted their liberty, the respondent has not given due
attention to the same nor has he made any effort to
comply with the second order. In other words, he has
disobeyed the said two orders; has despised the
authority of this court; has failed to give the respect
due to justice; and lastly, he has created and placed
obstacles to the administration of justice in the said
habeas corpus proceeding, thus preventing, because
of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature
of the same required.
"Contempt of court has been defined as a despising of
the authority, justice, or dignity of the court; and he is
guilty of contempt whose conduct is such as tends to
bring the authority and administration of the law into
disrespect or disregard. * * *" (Ruling Case Law, vol. 6,
p. 488.)
"It is a general principle that a disobedience of any
valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith." (Ruling
Case Law vol. 6, p. 502.)
"It is contempt to employ a subterfuge to evade the
judgment of the court, or to obstruct or attempt to
obstruct the service of legal process. If a person
hinders or prevents the service of process by deceiving
the officer or circumventing him by any means, the
result is the same as though he had obstructed by
some direct means." (Ruling Case Law, vol. 6, p. 503.)

"While it may seem somewhat incongruous to speak,

as the courts often do, of enforcing respect for the law
and for the means it has provided in civilized
communities for establishing justice, since true respect
never comes in that way, it is apparent nevertheless
that the power to enforce decorum in the courts and
obedience to their orders and just measures is so
essentially a part of the life of the courts that it would
be difficult to conceive of their usefulness or efficiency
as existing without it. Therefore it may be said
generally that where due respect f or the courts as
ministers of the law is wanting, a necessity arises for
the use of compulsion, not, however, so much to excite
individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with
the administration of justice." /Ruling Case Law, vol. 6,
p. 487.)
"The power to punish for contempt is as old as the law
itself, and has been exercised from the earliest times.
In England it has been exerted when the contempt
consisted of scandalizing the sovereign or his
ministers, :the law-making power, or the courts. In the
American states the power to punish for contempt, so
far as the executive department and the ministers of
state are concerned, and in some degree so f ar as the
legislative department is concerned, is obsolete. but it
has been almost universally preserved so far as
regards the judicial department. The power which the
courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of
record or not; and the authority for issuing
attachments in a proper case for contempts out of
court, it has been declared, stands upon the same
immemorial usage as supports the whole fabric of the
common law. * * *" (Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court

which have been disobeyed; the loss of the prestige of
the authority of the court which issued the said orders,
which loss might have been caused by noncompliance
with the. same orders on the part of the respondent
Justo Lukban; the damages which might have been
suffered by some of the women illegally detained, in
view of the f act that they were not brought to Manila
by the respondents to be presented before the court
and of the further fact that some of them were obliged
to come to this city at their own expense while still
others were brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which
was necessarily incurred in the resolution of the
petition interposed by the said petitioners and which
was due to the fact that the said orders were not
opportunely and duly obeyed and complied with, are
circumstances which should be taken into account in
imposing upon the respondent Justo Lukban the
penalty corresponding to the contempt committed by
him, a penalty which, according to section 236 of the
Code of Civil Procedure, should consist of a fine not
exceeding P1,000 or imprisonment not exceeding six
months, or both such fine and imprisonment. In the
imposition of the penalty, there should also be taken
into consideration the special circumstance that the
contempt was committed by a public authority, the
mayor of the city of Manila, the first executive
authority of the city, and consequently, the person
obliged to be the first in giving an example of
obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well
as for the orders emanating from the courts of justice,
and in giving help and aid to the said courts in order

that justice may be administered with promptness and

rectitude.
I believe, therefore, that instead of the fine of one
hundred pesos (P100), there should be imposed upon
the respondent Justo Lukban a fine of five hundred
pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state
here that the records of this proceeding should be
transmitted to the AttorneyGeneral in order that, after
a study of the same and deduction from the testimony
which he may deem necessary, and the proper
transmittal of the same to the fiscal of the city of
Manila and to the provincial fiscal of Davao, both the
latter shall present the corresponding informations for
the prosecution and punishment of the crimes which
have been committed on the occasion when the illegal
detention of the women was carried into effect by
Mayor Justo Lukban of the city of Manila and Chief of
Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while
the women were in Davao. This will be one of the
means whereby the just hope expressed in the
majority decision will be realized, that is, that in the
Philippine Islands there should exist a government of
laws and not a government of men and that this
decision may serve to bulwark the fortifications of an
orderly Government of laws and to protect individual
liberty from illegal encroachments.
Writ granted.
_____________
[No. 12592. March 8, 1918.]
THE UNITED STATES, plaintiff and appellee, vs.
FELIPE BUSTOS ET AL., defendants and
appellants.

1.CONSTITUTIONAL LAW; FREEDOM OF SPEECH AND

PRESS; AsSEMBLY AND PETITION; HISTORY.Freedom
of speech as cherished in democratic countries was
unknown in the Philippine Islands before 1900. It was
among the reforms sine quibus non insisted upon by
the Filipino People. The Malolos Constitution, the work
of the Revolutionary Congress, in its bill of rights,
zealously guarded these basic rights. A reform so
sacred to the people of these Islands and won at so
dear a cost should now be protected and carried
forward.
2.ID.; ID.; ID.; ID.The Constitution of the United
States and the State constitutions guarantee the right
of freedom of speech and press and the right of
assembly and petition.Beginning with the President's
Instructions to the Commission of April 7, 1900, these
guaranties were made effective in the Philippines.
They are now part and parcel of the Organic Lawof
the Constitutionof the Philippine Islands.
3.ID.; ID.; ID.; STATUTORY CONSTRUCTION.These
paragraphs in the Philippine Bill of Rights carry with
them all the applicable English and American
jurisprudence.
4.ID.; ID.; GENERAL PRINCIPLES.The interests of
society and the maintenance of good government
demand a full discussion of
732
732
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
public affairs. Complete liberty to comment on the
conduct of public men is necessary for free speech.
"The people are not obliged to speak of the conduct of
their officials in whispers or with bated breath in a free

government, but only in a despotism." (Howarth vs.

Barlow [1906], 113 App. Div. N. Y., 510.) Of course,
criticism does not authorize defamation.
5.ID.; ID.; ID.The guaranties of a free speech and a
free press include the right to criticize judicial conduct.
6.ID.; ASSEMBLY AND PETITION; GENERAL PRINCIPLES.
The right to assemble and petition is a necessary
consequence of republican institutions and the
complement of the right of free speech. Assembly
means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs.
Petition means that any person or group of persons
can apply without fear of penalty to the appropriate
branch or office of the Government for a redress of
grievances.
7.ID.; FREEDOM OF SPEECH AND PRESS; ASSEMBLY
AND PETITION; PRIVILEGE.The doctrine of privileged
communications rests upon public policy, "which looks
to the free and unfettered administration of justice,
though, as an incidental result, it may, in some
instances, afford an immunity to the evil-disposed and
malignant slanderer." (Abbott vs. National Bank of
Commerce, Tacoma [1899], 175 U. S., 409, 411.)
8.ID.; ID.; ID.; QUALIFIED PRIVILEGE.Qualified
privilege is a prima facie privilege which, may be lost
by proof of malice. "A communication made bona fide
upon any subject matter in which the party
communicating has an interest or in reference to which
he has a duty, is privileged, if made to a person having
a corresponding interest or duty, although it contain
criminatory matter which without this privilege would
be slanderous and actionable." (Harrison vs. Bush, 5 E.
& B. 344; 1 Jur. [N. S.], 846; 25 L. J. Q. B., 25; 3 W. R.,
474; 85 E. C. L., 344.)
9.ID.; ID.; ID.; ID.Even when the statements are
found to be false, if there is probable cause for belief in

their truthfulness and the charge is made in good faith,

the mantle of privilege may still cover the mistake of
the individual. Personal injury is not necessary. The
privilege is not defeated by the mere fact that the
communication is made in intemperate terms. Finally,
if a party applies to the wrong person through some
natural and honest mistake as to the respective
functions of various officials, such an unintentional
error would not take the case out of the privilege.
10.ID.; ID.; ID.; ID.; MALICE.In the usual libel case,
malice can be presumed from defamatory words.
Privilege destroys that presumption. The onus of
proving malice then lies on the plaintiff.
733
VOL. 37, MARCH 8, 1918.
733
United States vs. Bustos.
11.ID.; ID.; ID.; ID.A privileged communication should
not be subjected to microscopic examination to
discover grounds of malice or falsity. Such excessive
scrutiny will defeat the protection which the law throws
over privileged communications.
12.ID.; ID.; ID.Previous decisions of this court
concerning libel reviewed and distinguished.
13.ID.; ID.; ID.A petition, prepared and signed at an
assembly of numerous citizens including affidavits by
five individuals, charging a justice of the peace with
malfeasance in office and asking for his removal, was
presented through lawyers to the Executive Secretary.
The Executive Secretary referred the papers to the
judge of first instance of the district. The judge of first
instance, after investigation, recommended to the
GovernorGeneral that the justice of the peace be
removed from office. Later, on the/justice of the peace
filing a motion for new trial, the judge of first instance

ordered the suppression of the charges and acquitted

the justice of the peace of the same. Criminal action
was then begun against the petitioners, now become
the defendants, charging that portions of the petition
presented to the Executive Secretary were libelous.
The trial court found thirty-two of the defendants guilty
and sentenced each of them to pay a nominal fine. On
a review of the evidence, we find that express malice
was not proved by the prosecution. Good faith
surrounded the action of the petitioners. Their ends
and motives were justifiable. The charges and the
petition were transmitted through reputable attorneys
to the proper functionary. The defendants are not
guilty and instead of punishing them for an honest
endeavor to improve the public service, they should
rather be commended for their good citizenship.
APPEAL from a judgment of the Court of First Instance
of Pampanga. Moir, J.
The facts are stated in the opinion of the court.
Kincaid & Perkins for appellants.
Acting Attorney-General Paredes, for appellee,
MALCOLM, J.:
This appeal presents the specific question of whether
or not the defendants and appellants are guilty of a
libel of Roman Punsalan, justice of the peace of
Macabebe and Masantol, Province of Pampanga. The
appeal also submits the larger question of the attitude
which the judiciary should
734
734
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
take in interpreting and enforcing the Libel Law in
connection with the basic prerogatives of freedom of

speech and press, and of assembly and petition. For a

better understanding, the facts in the present appeal
are first narrated in the order of their occurrence, then
certain suggestive aspects relative to the rights of
freedom of speech and press and of assembly and
petition are interpolated, then the f facts are tested by
these principles, and, finally, judgment is rendered.
First, the facts. In the latter part of 1915, numerous
citizens of the Province of Pampanga assembled, and
prepared and signed a petition to the Executive
Secretary through the law office of Crossfield &
O'Brien, and five individuals signed affidavits, charging
Roman Punsalan, justice of the peace of Macabebe and
Masantol, Pampanga, with malfeasance in office and
asking for his removal. Crossfield & O'Brien submitted
this petition and these affidavits with a complaint to
the Executive Secretary. The petition transmitted by
these attorneys was signed by thirty-four citizens
apparently of considerable standing, including
councilors and property owners (now the defendants),
and contained the statements set out in the
information as libelous. Briefly stated' the specific
charges against the justice of the peace were.
1. That Francisca Polintan, desiring to make complaint
against Mariano de los Reyes, visited the justice of the
peace, who first told her that he would draw up the
complaint for P5; afterwards he said he would take P3
which she paid; also kept her in the house for four
days as a servant and took f from her two chickens
and twelve "gandus;"
2. That Valentin Sunga being interested in a case
regarding land which was on trial before the justice of
the peace, went to see the justice of the peace to
ascertain the result of the trial, and was told by the
justice of the peace that if he wished to win he must
give him P50. Not having this amount, Sunga gave the

justice nothing, and a few days later was informed that

he had lost the case. Returning again to the office of
the justice of the peace in order to
735
VOL. 37, MARCH 8, 1918.
735
United States vs. Bustos.
appeal, the justice told him that he could still win if he
would pay P50;
3. That Leoncio Quiambao, having filed a complaint for
assault against four persons, on the day of the trial the
justice called him over to his house, where he secretly
gave him (Quiambao) P30; and the complaint was
thereupon shelved.
The Executive Secretary referred the papers to the
judge of first instance for the Seventh Judicial District
requesting investigation, proper action, and report.
The justice of the peace was notified and denied the
charges. The judge of first instance found the first
count not proved and counts 2 and 3 established. In
view of this result, the judge, the Honorable Percy M.
Moir, was of the opinion "that it must be, and it is
hereby, recommended to the Governor-General that
the respondent be removed from his position as justice
of the peace of Macabebe and Masantol, Province of
Pampanga, and it is ordered that the proceedings had
in this case be transmitted to the Executive Secretary."
Later the justice of the peace filed a motion for a new
trial; the judge of first instance granted the motion and
reopened the hearing; documents were introduced,
including a letter sent by the municipal president and
six councilors of Masantol, Pampanga, asserting that
the justice of the peace was the victim of prosecution,
and that one Agustin Jaime, the auxiliary justice of the
peace, had instituted the charges for personal reasons;

and the judge of first instance ordered a suppression of

the charges against Punsalan and acquitted him of the
same. Attorneys for complainants thereupon appealed
to the Governor-General, but whether the papers were
forwarded to the Governor-General as requested the
record does not disclose.
Criminal action against the petitioners, now become
the defendants, was instituted on October 12, 1916, by
virtue of the following information:
"That on or about the month of December, 1915, in
the municipality of Macabebe, Pampanga, P. I., the said
accused, voluntarily, illegally, and criminally and with
malicious in736
736
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
tent to prejudice and defame Mr. Roman Punsalan
Serrano who was at said time and place justice of the
peace of Macabebe and Masantol of this province,
wrote, signed, and published a writing which was false,
scandalous, malicious, defamatory, and libelous
against the justice of the peace Mr. Roman Punsalan
Serrano, in which writing appear among other things
the following:
" 'That the justice of the peace, Mr. Roman Punsalan
Serrano, of this town of Macabebe, on account of the
conduct observed by him heretofore, a conduct highly
improper of the office which he holds, is found to be a
public functionary who is absolutely unfit, eminently
immoral and dangerous to the community, and
consequently unworthy of the office.
" That this assertion of the undersigned is evidenced in
a clear and positive manner by facts so certain, so
serious, and so denigrating which appear in the

affidavits attached hereto, and by other facts no less

serious, but which the undersigned refrain from citing
herein for the sake of brevity and in order not to
bother too much the attention of your Honor and due
to lack of sufficient proof to substantiate them.
" 'That should the higher authorities allow the said
justice of the peace of this town to continue in his
office, the protection of the rights and interests of its
inhabitants will be illusory and utopic; rights and
interests solemnly guaranteed by the Philippine Bill of
Rights, and justice in this town will not be administered
in accordance with law.
" 'That on account of the wrongful discharge of his
office and of his bad conduct as such justice of the
peace, previous to this time, some respectable citizens
of this town of Macabebe were compelled to present
an administrative case against the said Roman
Punsalan Serrano before the judge of first instance of
Pampanga, in which case there were made against him
various charges which were true and certain and of
different characters.
" 'That after the said administrative case was over, the
said justice of the peace, far from changing his bad
and despicable conduct, which has roused the
indignation of this
737
VOL. 37, MARCH 8, 1918.
737
United States vs. Bustos.
town of Macabebe, subsequently performed the acts
abovementioned, as stated in the affidavits herewith
attached, as if intending to mock at the people and to
show his mistaken valor and heroism.'
"All of this has been written and published by the
accused with the deliberate purpose of attacking the

virtue, honor, and reputation of the justice of the

peace, Mr. Roman Punsalan Serrano, and thus
exposing him to public hatred, contempt, and ridicule.
All contrary to law."
It should be noted that the inf formation omits
paragraphs of the petition mentioning the
investigation before the judge of first instance, the
affidavits upon which based and the concluding words,
"To the Executive Secretary, through the office of
Crossfield & O'Brien."
The Honorable Percy M. Moir found all the defendants,
with the exception of Felix Fernandez, Juan S. Alfonso,
Restituto Garcia, and Manuel Mallari, guilty and
sentenced each of them to pay a fine of P10 and one
thirty-second part of the costs, or to suffer subsidiary
imprisonment in case of insolvency. New attorneys for
the defense, coming into the case, after the handing
down of the decision, filed on December 16, 1916, a
motion for a new trial, the principal purpose of which
was to retire the objection interposed by the then
counsel for the defendants to the admission of Exhibit
A consisting of the entire administrative proceedings.
The trial court denied the motion. All the defendants,
except Melecio S. Sabado and Fortunato Macalino
appealed making the f following assignments of error:
"1. The court erred in overruling the motion of the
convicted defendants for a new trial.
"2. The court erred in refusing to permit the
defendants to retire the objection inadvertently
interposed by their counsel to the admission in
evidence of the expediente administrativo out of which
the accusation in this case arose.
"3. The court erred in sustaining the objection of the
prosecution to the introduction in evidence by the
accused of the affidavits upon which the petition
forming the basis of the libelous charge was based.

738
738
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
"4. The court erred in not holding that the alleged
libelous statement was unqualifiedly privileged.
"5. The court erred in assuming and impliedly holding
that the burden was on the defendants to show that
the alleged libelous statements were true and free
from malice.
"6. The court erred in not acquitting the defendants.
"7. The evidence adduced fails to show the guilt of the
defendants beyond a reasonable doubt. This is
especially true of all the defendants, except Felipe
Bustos, Dionisio Mallari, and Jose T. Reyes."
We have thus far taken it for granted that all the
proceedings, administrative and judicial, were properly
bef fore this court. As a matter of f act counsel for def
fendants in the lower court made an improvident
objection to the admission of the administrative
proceedings on the ground that the signatures were
not identified and that the same was immaterial, which
objection was partially sustained by the trial court.
Notwithstanding this curious situation by reason of
which the attorney for the defense attempted to
destroy through his objection the very foundation for
the justification of his clients, we shall continue to
consider all the proceedings as before us. Not
indicating specifically the reason for this action, let the
f following be stated: The administrative proceedings
were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the
information, the evidence, and the judgment rendered.
The prosecution cannot be understood without
knowledge of anterior action. Nothing more unjust

could be imagined than to pick out certain words

which standing by themselves and unexplained are
libelous and then by shutting off all knowledge of facts
which would justify these words, to convict the
accused. The records in question are attached to the
rollo, and either on the ground that the attorneys for
the defense retired the objection to the introduction of
the administrative proceedings by the prosecution, or
that a new trial should have been had because under
section 42 of the Code of Criminal Procedure "a case
may be reopened on account of errors at law
committed at the trial,"
739
VOL. 37, MARCH 8, 1918.
739
United States vs. Bustos.
or because of the right of this court to call in such
records as are sufficiently incorporated into the
complaint and are essential to a determination of the
case, or finally, because of our conceded right to take
judicial notice of official action in administrative cases
and of judicial proceedings supplemental to the basis
action, we examine the record as before us, containing
not alone the trial for libel, but the proceedings
previous to that trial giving rise to it. To this action, the
Government can not complain for it was the
prosecution which tried to incorporate Exhibit A into
the record.
With these facts pleading justification, before testing
them by certain principles which make up the law of
libel and slander, we feel warranted in seizing the
opportunity to 'intrude an introductory and general
discussion of f freedom of speech and press and
assembly and petition in the Philippine Islands. We
conceive that the time is ripe thus to clear up certain

misapprehensions on the subject and to place these

basic rights in their proper light.
Turning to the pages of history, we state nothing new
when we set down that freedom of speech as
cherished in democratic countries was unknown in the
Philippine Islands before 1900. A prime cause for revolt
was consequently ready made. Jose Rizal in "Filipinas
Despus de Cien Aos" (The Philippines a Century
Hence, pages 62 et seq.) describing "the reforms sine
quibus non," which the Filipinos insist upon, said:
"The minister, * * * who wants his reforms to be
reforms, must begin by declaring the press in the
Philippines free and by instituting Filipino delegates."
The Filipino patriots in Spain, through the columns of
"La Solidaridad" and by other means invariably in
exposing the wants of the Filipino people demanded
"liberty of the press, of cults, and of associations." (See
Mabini, La Revolucin Filipina.) The Malolos
Constitution, the work of the Revolutionary Congress,
in its Bill of Rights, zealously guarded freedom of
speech and press and assembly and petition.
740
740
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
Mention is made of the foregoing data only to deduce
the proposition that a reform so sacred to the people
of these Islands and won at so dear a cost, should now
be protected and carried forward as one would protect
and preserve the covenant of liberty itself.
Next comes the period of American-Filipino
cooperative effort, The Constitution of the United
States and the State constitutions guarantee the right
of freedom of speech and press and the right of
assembly and petition. We are therefore, not surprised

to find President McKinley in that Magna Charta of

Philippine Liberty, the Instruction to the Second
Philippine Commission, of April 7, 1900, laying down
the inviolable rule "That no law shall be passed
abridging the f freedom of speech or of the press or of
the rights of the people to peaceably assemble and
petition the Government for a redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902,
and the Jones Law, the Act of Congress of August 29,
1916, in the nature of organic acts for the Philippines,
continued this guaranty. The words quoted are not
unfamiliar to students of Constitutional Law, for they
are the counterpart of the first amendment to the
Constitution of the United States, which the American
people demanded before giving their approval to the
Constitution.
We mention the foregoing facts only to deduce the
proposition never to be forgotten for an instant that
the guaranties mentioned are part and parcel of the
Organic Law of the Constitutionof the Philippine
Islands.
These paragraphs found in the Philippine Bill of Rights
are not threadbare verbiage. The language carries with
it all the applicable jurisprudence of great English and
American Constitutional cases. (Kepner vs. U. S.
[1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U.
S., 470.) And what are these principles? Volumes
would inadequately answer. But included are the
following:
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public
me"
741
VOL. 37, MARCH 8, 1918.

741
United States vs. Bustos.
is a scalpel in the case of f free speech. The sharp
incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a
hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of
course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State,
so must expected criticism be born for the common
good. Rising superior to any official or set of officials,
to the Chief Executive, to the Legislature, to the
Judiciaryto any or all the agencies of Government
public opinion should be the constant source of liberty
and democracy. (See the well considered cases of
Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs.
Butterworth, 3 F. & F., 372; The Queen vs. Sir R.
Carden, 5 Q. B. D., 1.)
The guaranties of a free speech and a free press
include the right to criticize judicial conduct. The
administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced
is, therefore, a fit subject for proper comment. If the
people cannot criticize a justice of the peace or a
judge the same as any other public officer, public
opinion will be effectively muzzled. Attempted
terrorization of public opinion on the part of the
judiciary would be tyranny of the basest sort. The
sword of Damocles in the hands of a judge does not
hang suspended over the individual who dares to
assert his prerogative as a citizen and to stand up
bravely before any official. On the contrary, it is a duty
which every one owes to society or to the State to

assist in the investigation of any alleged misconduct. It

is further the duty of all who know of any official
dereliction on the part of a magistrate or the wrongful
act of any public officer to bring the facts to the notice
of those whose duty it is to inquire into and punish
them. In the words of Mr. Justice Gayner, who
contributed so largely to the law of libel. "The people
are not obliged to speak of the conduct of their
officials in whispers or with
742
742
PHILIPPINE REPORTS ANNOTATED
United States vs. Bustos.
bated breath in a free government, but only in a
despotism," (Howarth vs. Barlow [1906], 113 App. Div.,
N. Y., 510.)
The right to assemble and petition is the necessary
consequence of republican institutions and the
complement of the right of free speech. Assembly
means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs.
Petition means that any person or group of persons
can apply, without fear of penalty, to the appropriate
branch or office of the government for a redress of
grievances. The persons assembling and petitioning
must, of course, assume responsibility for the charges
made.
Public policy, the welfare of society, and the orderly
administration of government have demanded
protection for public opinion. The inevitable and
incontestable result has been the development and
adoption of the doctrine of privilege.
"The doctrine of privileged communications rests upon
public policy, 'which looks to the free and unfettered
administration of justice, though, as an incidental

result, it may in some instances afford an immunity to

the evil-disposed and malignant slanderer.' " (Abbott
vs. National Bank of Commerce, Tacoma [1899], 175 U.
S., 409, 411.)
Privilege is classified as either absolute or qualified.
With the first, we are not concerned. As to qualified
privilege, it is as the words suggest a prima facie
privilege which may be lost by proof of malice. The
rule is thus stated by Lord Campbell, C. J.
"A communication made bona fide upon any
subjectmatter in which the party communicating has
an interest, or in reference to which he has a duty, is
privileged, if made to a person having a corresponding
interest or duty, although it contained criminatory
matter which without this privilege would be
slanderous and actionable." (Harrison vs. Bush, 5 E. &
B., 344; 1 Jur. [N. S.], 846; 25 L. J. Q. B., 25; 3 W. R.,
474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified
privilege is a complaint made in good faith and without
malice in regard to the character or conduct of a public
of743
VOL. 37, MARCH 8, 1918.
743
United States vs. Bustos.
ficial when addressed to an officer or a board having
some interest or duty in the matter. Even when the
statements are found to be false, if there is probable
cause for belief in their truthfulness and the charge is
made in good faith, the mantle of privilege may still
cover the mistake of the individual. But the statements
must be made under an honest sense of duty; a selfseeking motive is destructive, Personal injury is not
necessary. All persons have an interest in the pure and

efficient administration of justice and of public affairs.

The duty under which a party is privileged is sufficient
if it is social or moral in its nature and this person in
good faith believes he is acting in pursuance thereof
although in fact he is mistaken. The privilege is not
defeated by the mere fact that the communication is
made in intemperate terms. A further element of the
law of privilege concerns the person to whom the
complaint should be made. The rule is that if a party
applies to the wrong person through some natural and
honest mistake as to the respective functions of
various officials such unintentional error will not take
the case out of the privilege.
In the usual case malice can be presumed from
defamatory words. Privilege destroy that presumption.
The onus of proving malice then lies on, the plaintiff.'
The plaintiff must bring home to the defendant the
existence of malice as the true motive of his conduct.
Falsehood and the absence of probable cause will
amount to proof of malice. (See White vs. Nicholls
[1845], 3 How., 266.)
A privileged communication should not be subjected to
microscopic examination to discover grounds of malice
or falsity. Such excessive scrutiny would defeat the
protection which the law throws over privileged
communications. The ultimate test is that of bona
fides. (See White vs. Nicholls [1845], 3 How., 266;
Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent
vs. Bongartz [1885], 15 R. L, 72; Street, Foundations of
Legal Liability, vol. 1, pp. 308, 309; Newell, Slander
and Libel, various citations; 25 Cyc. pages 385 et seq.)
Having ascertained the attitude which should be
assumed
744
744

PHILIPPINE REPORTS ANNOTATED

United States vs. Bustos.
relative to the basic rights of freedom of speech and
press and of assembly and petition, having
emphasized the point that our Libel Law as a statute
must be construed with reference to the guaranties of
our Organic Law, and having sketched the doctrine of
privilege, we are in a position to test the facts of this
case with these principles.
It is true that the particular words set out in the inf
formation, if said of a private person, might well be
considered libelous per se. The charges might also
under certain conceivable conditions convict one of a
libel of a government official. As a general rule words
imputing to a judge or a justice of the peace
dishonesty or corruption or incapacity or misconduct
touching him in his office are actionable. But as
suggested in the beginning we do not have present a
simple case of direct and vicious accusations published
in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly
privileged. Express malice has not been proved by the
prosecution. Further, although the charges are
probably not true as to the justice of the peace, they
were believed to be true by the petitioners. Good faith
surrounded their action. Probable cause for them to
think that malfeasance or misfeasance in office existed
is apparent. The ends and the motives of these citizens
to secure the removal from office of a person
thought to be venalwere justifiable. In no way did
they abuse the privilege. These respectable citizens
did not eagerly seize on a frivolous matter but on
instances which not only seemed to them of a grave
character, but which were sufficient in an investigation
by a judge of first instance to convince him of their
seriousness. No undue publicity was given to the

petition. The manner of commenting on the conduct of

the justice of the peace was proper. And finally the
charges and the petition were submitted through
reputable attorneys to the proper functionary, the
Executive Secretary. In this connection it is sufficient to
note that justices of the peace are appointed by the
Governor-General, that they may be removed by the
Governor-General upon the recommendation of a
Judge of
745
VOL. 37, MARCH 8, 1918.
745
United States vs. Bustos.
First Instance, or on the Governor-General's own
motion, and that at the time this action took place the
Executive Bureau was the office through which the
Governor-General acted in such matters. (See
Administrative Code of 1917, secs. 203 and 229, in
connection with the cases of U. S. vs. Galeza [1915],
31 Phil., 365, and of Harrison vs. Bush, 5 E. & B., 344,
holding that where defendant was subject to removal
by the sovereign, a communication to the Secretary of
State was privileged.)
The present facts are further essentially different from
those established in other cases in which private
individuals have been convicted of libels of public
officials. Malice, traduction, falsehood, calumny,
against the man and not the officer, have been the
causes of the verdict of guilty. (See U. S. vs. Sedano
[1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912],
23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for
confirmation on the case of the United States vs. Julio
Bustos ([1909], 13 Phil., 690). The Julio Bustos case,
the Attorney-General says, is identical with the Felipe

Bustos case, with the exception that there has been

more publicity in the present instance and that the
person to whom the charge was made had less
jurisdiction than had the Secretary of Justice in the
Julio Bustos case. Publicity is immaterial if the charge
against Punsalan is in fact a privileged communication.
Moreover, in the Julio Bustos case we find wild
statements, with no basis in fact, made against
reputable members of the judiciary, "to persons who
could not furnish protection." Malicious and untrue
communications are not privileged. A later case and
one more directly in point to which we invite especial
attention is United States vs. Galeza ([1915], 31 Phil.,
365). (Note also Yancey vs. Commonwealth [1909],
122 So. W., 123.)
We find the defendants and appellants entitled to the
protection of the rules concerning qualified privilege,
growing out of constitutional guaranties in our bill of
rights. Instead of punishing citizens for an honest
endeavor to
746
746
PHILIPPINE REPORTS ANNOTATED
Flores vs. Zurbito.
improve the public service, we should rather commend
them for their good citizenship. The defendants and
appellants are acquitted with the costs de officio, So
ordered.
Arellano, C. J., Johnson, Araullo, Street, and Fisher, JJ.,
concur.
CARSON, J., concurring:
I concur.
I think it proper to observe, however, that in my
opinion the Attorney-General is entirely correct when

he says that this case is substantially identical with the

former "Bustos case (The United States vs. Bustos, 13
Phil. Rep., 690). I believe that a careful reading of our
decisions in these cases is sufficient to demonstrate
that fact. The truth is that the doctrine of the
prevailing opinion in the former Bustos case has long
since been abandoned by this court; and in my opinion
it would make for the more efficient administration of
the Libel Law in these Islands to say so, in so many
words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338,
339; U. S. vs. Contreras [1912], 23 Phil. Rep., 513; U.
S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U S. vs.
Galeza [1915], 31 Phil. Rep., 365.)
Judgment reversed; defendants acquitted.
______________
Copyright 2015 Central Book Supply, Inc. All rights
reserved. [United States vs. Bustos., 37 Phil.
731(1918)]

No. L-65366. November 9, 1983.*

JOSE B.L. REYES, in behalf of the ANTI-BASES
COALITION (ABC), petitioner, vs. RAMON
BAGATSING, as Mayor of the City of Manila,
respondent.
Constitutional Law; Jurisdiction; Where a limitation is
alleged on the exercise of the right to free speech and
assembly, the judiciary is called upon to examine the
effects of the challenged governmental actuation.To
paraphrase the opinion of Justice Rutledge, speaking
for the majority of the American Supreme Court in
Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and
of the press were coupled in a single guarantee with
the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All
these rights, while not identical, are inseparable. In
every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged
governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public
health, or any other legitimate public interest.
Same; Constitution frowns on disorder or tumult
attending a public rally; peaceable assembly is
guaranteed, but not resort to force.There are, of
course, well-defined limits. What is guaranteed
_______________

* EN BANC.
554
554
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
is peaceable assembly. One may not advocate disorder
in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be
avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: It is rather to
be expected that more or less disorder will mark the
public assembly of the people to protest against
grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and
the more intense the feeling, the less perfect, as a
rule, will be the disciplinary control of the leaders over
their irresponsible followers.
Same; Absent clear and present danger, choice of
Luneta and U.S. Embassy for a public rally cannot be
legally objected to.There can be no legal objection,
absent the existence of a clear and present danger of
a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is
committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v.
CIO.
Same; Same.Neither can there be any valid objection
to the use of the streets to the gates of the US
Embassy, hardly two blocks away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any lurking
doubt on the matter.

Same; International Law; The Philippines is a signatory

to the Vienna Convention which calls for the protection
of the premises of a diplomatic mission. Denial of
permit for a rally in front of the U.S. Embassy justified
only in the presence of clear and present danger to life
or property of the embassy.The Philippines is a
signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. It was concurred in by the
then Philippine Senate on May 3, 1965 and the
instrument of ratification was signed by the President
on October 11, 1965, and was thereafter deposited
with the Secretary General of the United Nations on
November 15. As of that date then, it was binding on
the Philippines. The second paragraph of its Article 22
reads: 2. The receiving State is under a special duty
to take appropriate steps to protect the premises of
the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or
impairment of its dignity. The Constitution adopts the
generally accepted principles of international law as
part of the law of the land,
555
VOL. 125, NOVEMBER 9, 1983
555
Reyes vs. Bagatsing
* * *. To the extent that the Vienna Convention is a
restatement of the generally accepted principles of
international law, it should be a part of the law of the
land. That being the case, if there were a clear and
present danger of any intrusion or damage, or
disturbance of the peace of the mission, or impairment
of its dignity, there would be a justification for the
denial of the permit insofar as the terminal point would
be the Embassy.

Same; Municipal Corporations; Even if Manila

Ordinance prohibiting the staging of a rally within a
radius of 500 feet from an Embassy has not yet been
declared void, still the question of constitutional
exercise of right to stage a public rally confronts this
Court.Moreover, respondent Mayor relied on
Ordinance No. 7295 of the City of Manila prohibiting
the holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from any
foreign mission or chancery; and for other purposes.
Unless the ordinance is nullified, or declared ultra
vires, its invocation as a defense is understandable but
not decisive, in view of the primacy accorded the
constitutional rights of free speech and peaceable
assembly. Even if shown then to be applicable, that
question still confronts this Court.
Same; Freedom of access to public parks for staging a
peaceful public rally guaranteed by Constitution.To
repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom
of access. Nor is their use dependent on who is the
applicant for the permit, whether an individual or a
group. If it were, then the freedom of access becomes
discriminatory access, giving rise to an equal
protection question. The principle under American
doctrines was given utterance by Chief Justice Hughes
in these words: The question, if the rights of free
speech and peaceable assembly are to be preserved,
is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the
bounds of the freedom of speech which the
Constitution protects. There could be danger to public
peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful

character. Even then, only the guilty parties should be

held accountable.
Same; Municipal Corporations; Discretionary authority
of City Mayor to issue license for holding of public rally
is not absolute and may not be withheld on mayors
plea that rally may be held elsewhere, that is, instead
of the U.S. Embassy at theRizal Coliseum,
556
556
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
in the absence of clear and present danger.It is true
that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not
a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that
there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the
relevant circumstances, still the assumption
especially so where the assembly is scheduled for a
specific public placeis that the permit must be for
the assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking for
the American Supreme Court, is not to be abridged on
the plea that it may be exercised in some other place.
Same; Same.In fairness to respondent Mayor, he
acted on the belief that Navarro v. Villegas and
Pagkakaisa ng Manggagawang Pilipino (PMP) v.
Bagatsing, called for application. While the general
rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of
their choice, another place may be designated by the
licensing authority if it be shown that there is a clear
and present danger of a substantive evil if no such
change were made. In the Navarro and the Pagkakaisa

decisions, this Court was persuaded that the clear and

present danger test was satisfied. The present
situation is quite different. Hence the decision reached
by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not
suffice. Not that it should be overlooked. There was in
this case, however, the assurance of General Narciso
Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a
position to cope with such emergency should it arise.
That is to comply with its duty to extend protection to
the participants of such peaceable assembly.
Same; Duties of applicants for a permit to hold a public
rally.By way of a summary. The applicants for a
permit to hold an assembly should inform the licensing
authority of the date, the public place where and the
time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its
legal possession is required. Such application should
be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition
to such refusal or modification that the clear and
present danger test be the standard for the decision
reached. If he is of the view that there is
557
VOL. 125, NOVEMBER 9, 1983
557
Reyes vs. Bagatsing
such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse,
must be transmitted to them at the earliest

opportunity. Thus if so minded, they can have recourse

to the proper judicial authority.
Teehankee,J.:
Constitutional Law; The burden of showing clear
justification for denial of public rally permit is on the
mayor or licensing authority.It bears emphasis that
the burden to show the existence of grave and
imminent danger that would justify adverse action on
the application lies on the mayor as licensing authority.
There must be objective and convincing, not subjective
or conjectural, proof of the existence of such clear and
present danger. As stated in our Resolution of October
25, 1983, which granted the mandatory injunction as
prayed for, It is essential for the validity of a denial of
a permit which amounts to a previous restraint or
censorship that the licensing authority does not rely
solely on his own appraisal of what public welfare,
peace or safety may require. To justify such a
limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger test.
The possibility that subversives may infiltrate the
ranks of the demonstrators is not enough.
Same; Leaders of public rally must take all precautions
to ensure a peaceful march.Needless to say, the
leaders of the peaceable assembly should take all the
necessary measures to ensure a peaceful march and
assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly
with the duty of the police to extend protection to the
participants staying at a discreet distance, but ever
ready and alert to perform their duty. But should any
disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former Chief
Justice Ricardo Paras injunction in his concurring
opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, that such instances of disorderly conduct by

individual members of a crowd (be not seized) as an

excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities and render
illusory the right of peaceable assembly.
558
558
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
Plana, J., Separate Opinion:
Constitutional Law; Municipal Corporation; Ordinance
7295 banning rallies within 500 feet of foreign
embassies cannot be validly invoked where its
application would collide with a constitutionally
guaranteed right.In my view, without saying that the
Ordinance is obnoxious per se to the constitution, it
cannot be validly invoked whenever. its application
would collide with a constitutionally guaranteed right
such as freedom of assembly and/or expression, as in
the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from
the situs of the rally or demonstration.
PETITION for mandamus with writ of preliminary
mandatory injunction to review the decision of the City
Mayor of Manila.
The facts are stated in the opinion of the Court.
Lorenzo M. Taada, Jose W. Diokno and Haydee B.
Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:
This Court, in this case of first impression, at least as
to some aspects, is called upon to delineate the
boundaries of the protected area of the cognate rights
to free speech and peaceable assembly,1 against an
alleged intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice J.B. L. Reyes, on

behalf of the Anti-Bases Coalition, sought a permit

from the City of Manila to hold a peaceful march and
rally on October 26, 1983 from 2:00 to 5:00 in the
afternoon, starting from the Luneta, a public park, to
the gates of the United States Embassy, hardly two
blocks away. Once there, and in an open space of
public property, a short program would be held.2
During the course of the oral argument,3 it was
_______________
1 Section 9, Article IV of the Constitution.
2 Petition, par. 4.
3 Petitioner was represented by Professor Haydee
Yorac of the College of Law, University of the
Philippines, assisted by former
559
VOL. 125, NOVEMBER 9, 1983
559
Reyes vs. Bagatsing
stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last
day by the International Conference for General
Disarmament, World Peace and the Removal of All
Foreign Military Bases held in Manila, would be
presented to a representative of the Embassy or any of
its personnel who may be there so that it may be
delivered to the United States Ambassador. The march
would be attended by the local and foreign
participants of such conference. There was likewise an
assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all
the necessary steps would be taken by it to ensure a
peaceful march and rally.4
The filing of this suit for mandamus with alternative
prayer for writ of preliminary mandatory injunction on
October 20, 1983 was due to the fact that as of that

date, petitioner had not been informed of any action

taken on his request on behalf of the organization to
hold a rally. On October 25, 1983, the answer of
respondent Mayor was filed on his behalf by Assistant
Solicitor General Eduardo G. Montenegro.5 It turned
out that on October 19, such permit was denied.
Petitioner was unaware of such a fact as the denial
was sent by ordinary mail. The reason for refusing a
permit was due to police intelligence reports which
strongly militate against the advisability of issuing
such permit at this time and at the place applied for.6
To be more specific, reference was made to persistent
intelligence reports affirming] the plans of
subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a large
number of people is expected to attend.7 Respondent
Mayor suggested, however, in accordance with the
recommendation of the police authorities, that a
permit may be issued for the rally if it is to be held at
the Rizal Coliseum or any other enclosed area where
_______________
Senator Jose W. Diokno. Respondent was represented
by Assistant Solicitor General Montenegro.
4 Petition, 2.
5 He was assisted by Solicitor Roberto A. Abad.
6 Answer of Respondent, 2, Annex 1.
7 Ibid., Annex 1-A.
560
560
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
the safety of the participants themselves and the
general public may be ensured.8
The oral argument was heard on October 25, 1983, the
very-same day the answer was filed. The Court then

deliberated on the matter. That same afternoon, a

minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that
there was no showing of the existence of a clear and
present danger of a substantive evil that could justify
the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino
on the ground that the holding of a rally in front of the
US Embassy would be violative of Ordinance No. 7295
of the City of Manila. The last sentence of such minute
resolution reads: This resolution is without prejudice
to a more extended opinion.9 Hence this detailed
exposition of the Courts stand on the matter.
1.It is thus clear that the Court is called upon to
protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial
of a permit. The Constitution is quite explicit: No law
shall be passed abridging the freedom of speech, or of
the press, or the right of the people peaceably to
assemble and petition the Government for redress of
grievances.10 Free speech, like free press, may be
identified with the liberty to discuss publicly and
truthfully any matter of public concern without
censorship or punishment.11 There is to be then no
previous restraint on the
_______________
8 Ibid., Annex 1.
9 Minute resolution dated October 25, 1983, 4.
10 Article IV, Section 9 of the Constitution.
11 Cf. Thornhill v. Alabama, 310 US 88 (1940). Justice
Malcolm identified freedom of expression with the right
to a full discussion of public affairs. (U.S. v. Bustos, 37
Phil. 731, 740 [1918]). Justice Laurel was partial to the
ringing words of John Milton, the liberty to know, to
utter, and to argue freely according to conscience,
above all liberties. (Planas v. Gil, 67 Phil. 62 [1939]).

Justice Johnson spoke of freedom of expression in

terms of a full and free discussion of all affairs of
public interest. For him then, free speech includes
complete liberty to comment upon the administration
of Government as well as the conduct of public men.
(U.S. v. Perfecto,
561
VOL. 125, NOVEMBER 9, 1983
561
Reyes vs. Bagatsing
communication of views or subsequent liability
whether in libel suits,12 prosecution for sedition,13 or
action for damages,14 or contempt proceedings15
unless there be a clear and present danger of a
substantive evil that [the State] has a right to
prevent.16 Freedom of assembly connotes the right of
the people to meet peaceably for consultation and
discussion of matters of public concern.17 It is entitled
to be accorded the utmost deference and respect. It is
not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of
a clear and present danger of a substantive evil that
the state has a right to prevent.18 Even prior to the
1935 Constitution, Justice Malcolm had occasion to
stress that it is a necessary consequence of our
republican institutions and complements the right of
free speech.19 To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins,20 it was not by
accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single
guarantee with the
_______________
43 Phil. 58, 62 [1922]). When it is remembered further
that time has upset many fighting faiths there is

likely to be a more widespread acceptance of the view

of Justice Holmes that the ultimate good desired is
better reached by free trade in ideas,that the best
test of truth is the power of the thought to get itself
accepted in the competition of the market; and that
truth is the only ground upon which their wishes safely
can be carried out. (Abrams v. United States, 250 US
616, 630 [1919]).
12 U.S. v. Bustos, 37 Phil. 731 (1918); Quisumbing v.
Lopez, 96 Phil. 510 (1935).
13 U.S. v. Perfecto, 43 Phil. 58 (1922).
14 Yap v. Boltron, 100 Phil. 324 (1956).
15 People v. Alarcon, 69 Phil. 265 (1939); Cabansag v.
Fernandez, 102 Phil. 152 (1957); People v. Castelo H.
Abaya, 114 Phil. 892 (1962); Bridges v. California, 314
US 252 (1941); Pennekamp v. Florida, 328 US 331
(1946); Craig v. Harney, 331 US 367 (1947); Woods v.
Georgia, 370 US 375 (1962).
16 Gonzales v. Commission on Elections, L-27833, April
18, 1969, 27 SCRA 835, 857.
17 Cf. Ibid.
18 Ibid.
19 Cf. United States v. Bustos, 37 Phil. 731 (1918).
20 323 US 516 (1945).
562
562
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
rights of the people peaceably to assemble and to
petition the government for redress of grievances. All
these rights, while not identical, are inseparable. In
every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged
governmental actuation. The sole justification for a

limitation on the exercise of this right, so fundamental

to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public
health, or any other legitimate public interest.21
2. Nowhere is the rationale that underlies the freedom
of expression and peaceable assembly better
expressed than in this excerpt from an opinion of
Justice Frankfurter: It must never be forgotten,
however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay
faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was
in order to avert force and explosions due to
restrictions upon rational modes of communication
that the guaranty of free speech was given a generous
scope. But utterance in a context of violence can lose
its significance as an appeal to reason and become
part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution.22 What
was rightfully stressed is the abandonment of reason,
the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered
that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their
views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication
cannot be availed of, resort to non-peaceful means
may be the only alternative. Nor is this the sole reason
for the expression of dissent. It means more than just
the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they
are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to
ensure a true ferment of
_______________

21 Cf. Schneider v. Irvington, 308 US 147 (1939).

22 Milk Wagon Drivers Union of Chicago, Local
753 v. Meadowmoor Dairies, Inc., 312 US 287, 293
(1940).
563
VOL. 125, NOVEMBER 9, 1983
563
Reyes vs. Bagatsing
ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a
rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United
States v. Apurado:23 It is rather to be expected that
more or less disorder will mark the public assembly of
the people to protest against grievances whether real
or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the
greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the
disciplinary tontrol of the leaders over their
irresponsible followers.24 It bears repeating that for
the constitutional right to be invoked, riotous conduct,
injury to property, and acts of vandalism must be
avoided. To give free rein to ones destructive urges is
to call for condemnation. It is to make a mockery of
the high estate occupied by intellectual liberty in our
scheme of values.
3. There can be no legal objection, absent the
existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place

where the peace rally would start. The Philippines is

committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v.
CIO:25 Whenever the title of streets and parks may
rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been
used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The
privilege of a citizen of the United States to use the
streets and parks for communication of views on
national questions may be regulated in the interest of
all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in
_______________
23 7 Phil. 422.
24 Ibid., 426.
25 307 US 495.
564
564
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
consonance with peace and good order; but it must
not, in the guise of regulation, be abridged or
denied.26 The above excerpt was quoted with
approval in Primicias v. Fugoso.27 Primicias made
explicit what was implicit in Municipality of Cavite v.
Rojas,28 a 1915 decision, where this Court
categorically affirmed that plazas or parks and streets
are outside the commerce of man and thus nullified a
contract that leased Plaza Soledad of plaintiffmunicipality. Reference was made to such plaza being

a promenade for public use,29 which certainly is not

the only purpose that it could serve. To repeat, there
can be no valid reason why a permit should not be
granted for the proposed march and rally starting from
a public park that is the Luneta.
4. Neither can there be any valid objection to the use
of the streets to the gates of the US Embassy, hardly
two blocks away at the Roxas Boulevard. Primicias v.
Fugoso has resolved any lurking doubt on the matter.
In holding that the then Mayor Fugoso of the City of
Manila should grant a permit for a public meeting at
Plaza Miranda in Quiapo, this Court categorically
declared: Our conclusion finds support in the decision
in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that ease, the statute of New
Hampshire P. L. chap. 145, section 2, providing that no
parade or procession upon any ground abutting
thereon, shall be permitted unless a special license
therefor shall first be obtained from the selectmen of
the town or frdm licensing committee, was construed
by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held valid.
And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme Court,
held that a statute requiring persons using the public
streets for a parade or procession to procure a special
license therefor from the local authorities is not an
unconstitutional abridgment of the rights
_______________
26 Ibid., 515.
27 80 Phil. 71 (1948).
28 30 Phil. 602.
29 Ibid., 606.
565

VOL. 125, NOVEMBER 9, 1983

565
Reyes vs. Bagatsing
of assembly or of freedom of speech and press, where,
as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance
of licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to
conserving the public convenience and of affording an
opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse
license, * * *. 30 Nor should the point made by Chief
Justice Hughes in a subsequent portion of the opinion
be ignored: Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized
society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose
regulations in order to assure the safety and
convenience of the people in the use of public
highways has never been regarded as inconsistent
with civil liberties but rather as one of the means of
safeguarding the good order noon which they
ultimately depend. The control of travel on the streets
of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the
use of highways in that relation is designed to promote
the public convenience in the interest of all, it cannot
be disregarded by the attempted exercise of some civil
right which in other circumstances would be entitled to
protection.31
5. There is a novel aspect to this case. If the rally were
confined to Luneta, no question, as noted, would have
arisen. So, too, if the march would end at another
park. As previously mentioned though, there would be

a short program upon reaching the public space

between the two gates of the United States Embassy
at Roxas Boulevard. That would be followed by the
handing over of a petition based on the resolution
adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in 1961. It
was concurred in by the then Philippine Senate on May
3, 1965 and the instrument of ratification was signed
by the President on October 11, 1965, and was
thereafter deposited with the Secretary General
_______________
30 80 Phil. at 78.
31 312 US at 524.
566
566
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
of the United Nations on November 15. As of that date
then, it was binding on the Philippines. The second
paragraph of its Article 22 reads: 2. The receiving
State is under a special duty to take appropriate steps
to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its
dignity.32 The Constitution adopts the generally
accepted principles of international law as part of the
law of the land, * * *.33 To the extent that the Vienna
Convention is a restatement of the generally accepted
principles of international law, it should be a part of
the law of the land.34 That being the case, if there
were a clear and present danger of any intrusion or
damage, or disturbance of the peace of the mission, or
impairment of its dignity, there would be a justification
for the denial of the permit insofar as the terminal

point would be the Embassy. Moreover, respondent

Mayor relied on Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery; and for
other purposes. Unless the ordinance is nullified, or
declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the
primacy accorded the constitutional rights of free
speech and peaceable
_______________
32 Cf. Brownlie, Principles of Public International Law,
2nd ed., 339-341.
33 Article II, Section 3 reads in full: The Philippines
renounces war as an instrument of national policy,
adopts the generally accepted principles of
international law as part of the law of the land, and
adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
34 The Philippines can rightfully take credit for the
acceptance, as early as 1951, of the binding force of
the Universal Declaration of Human Rights even if the
rights and freedoms therein declared are considered
by other jurisdictions as merely a statement of
aspirations and not law until translated into the
appropriate covenants. In the following cases decided
in 1951, Mejoff v. Director of Prisons, 90 Phil. 70;
Borovsky v. Commissioner of Immigration, 90 Phil. 107;
Chirskoff v. Commissioner of Immigration, 90 Phil. 256;
Andreu v. Commissioner of Immigration, 90 Phil. 347,
the Supreme Court applied the Universal Declaration
of Human Rights.
567
VOL. 125, NOVEMBER 9, 1983
567

Reyes vs. Bagatsing

assembly. Even if shown then to be applicable, that
question still confronts this Court.
6. There is merit to the observation that except as to
the novel aspects of a litigation, the judgment must be
confined within the limits of previous decisions. The
law declared oh past occasions is, on the whole, a safe
guide. So it has been here. Hence, as noted, on the
afternoon of the hearing, October 25, 1983, this Court
issued the minute resolution granting the mandatory
injunction allowing the proposed march and rally
scheduled for the next day. That conclusion was
inevitable in the absence of a clear and present danger
of a substantive evil to a legitimate public interest.
There was no justification then to deny the exercise of
the constitutional rights of free speech and peaceable
assembly. These rights are assured by our Constitution
and the Universal Declaration of Human Rights.35 The
participants to such assembly, composed primarily of
those in attendance at the International Conference for
General Disarmament, World Peace and the Removal
of All Foreign Military Bases would start from the
Luneta, proceeding through Roxas Boulevard to the
gates of the United States Embassy located at the
same street. To repeat, it is settled law that as to
public places, especially so as to parks and streets,
there is freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether an
individual or a group. If it were, then the freedom of
access becomes discriminatory access, giving rise to
an equal protection question. The principle under
American doctrines was given utterance by Chief
Justice Hughes in these words: The question, if the
rights of free speech and peaceable assembly are to
be preserved, is not as to the auspices under which
the meeting is held but as to its purpose; not as to the

relations of the speakers, but whether their utterances

transcend the bounds of the freedom of speech which
the
_______________
35 According to its Article 19: Everyone has the right
to freedom of opinion and expression; this right
includes freedom to hold opinions without interference
and to seek, receive, and impart information and ideas
through any media and regardless of frontiers. The
first paragraph of Article 20 reads: Everyone has the
right to freedom of peaceful assembly and
association.
568
568
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
Constitution protects.36 There could be danger to
public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit
would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but
of what may probably occur, given all the relevant
circumstances, still the assumptionespecially so
where the assembly is scheduled for a specific public
placeis that the permit must be for the assembly
being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American
Supreme Court, is not to be abridged on the plea that
it may be exercised in some other place.37

7. In fairness to respondent Mayor, he acted on the

belief that Navarro v. Villegas38 and Pagkakaisa ng
Manggagawang Pilipino (PMP) v. Bagatsing,39 called
for application. While the general rule is that a permit
should recognize the right of the applicants to hold
their assembly at a public place of their choice,
another place may be designated by the licensing
authority if it be shown that there is a clear and
present danger of a substantive evil if no such change
were made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the clear and
present danger test was satisfied. The present
situation is quite different. Hence the decision reached
by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not
suffice. Not that it should be overlooked. There was in
this case, however, the assurance of General Narciso
Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a
position to cope with such
_______________
36 De Jorge v. Oregon, 299 US 353, 364 (1937).
37 Schneider v. Irvington, 308 US 147, 163 (1939).
38 G.R. No. L-31687, February 26, 1970, 31 SCRA 731.
Two justices dissented, Justice, later Chief Justice,
Castro and the present Chief Justice, then a Justice.
39 G.R. No. 60294, April 30, 1982.
569
VOL. 125, NOVEMBER 9, 1983
569
Reyes vs. Bagatsing
emergency should it arise. That is to comply with its
duty to extend protection to the participants of such
peaceable assembly. Also from him came the
commendable admission that there were at least five

previous demonstrations at the Bay view Hotel Area

and Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It was
made clear by petitioner, through counsel, that no act
offensive to the dignity of the United States Mission in
the Philippines would take place and that, as
mentioned at the outset of this opinion, all the
necessary steps would be taken by it to ensure a
peaceful march and rally. 40 Assistant Solicitor
General Montenegro expressed the view that the
presence of policemen may in itself be a provocation.
It is a sufficient answer that they should stay at a
discreet distance, but ever ready and alert to cope
with any contingency. There is no need to repeat what
was pointed out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to
provide the proper police protection to those
exercising their right to peaceable assembly and
freedom of expression.
8. By way of a summary. The applicants for a permit
to hold an assembly should inform the licensing
authority of the date, the public place where and the
time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its
legal possession is required. Such application should
be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition
to such refusal or modification that the clear and
present danger test be the standard for the decision
reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if

so minded, they can have recourse to the proper

judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms,
are highly ranked in our scheme of
_______________
40 Opinion citing par. 4 of Petition.
570
570
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
constitutional values. It cannot be too strongly
stressed that on the judiciary,even more so than on
the other departmentsrests the grave and delicate
responsibility of assuring respect for and deference to
such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so
felicitiously termed by Justice Holmes as the
sovereign prerogative of judgment. Nonetheless, the
presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as
they do precedence and primacy. Clearly then, to the
extent that there may be inconsistencies between this
resolution and that of Navarro v. Villegas, that case is
pro tanto modified. So it was made clear in the original
resolution of October 25, 1983.
9.Respondent Mayor posed the issue of the
applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery; and for
other purposes. It is to be admitted that it finds
support in the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was
no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet.

Even if it could be shown that such a condition is

satisfied, it does not follow that respondent Mayor
could legally act the way he did. The validity of his
denial of the permit sought could still be challenged. It
could be argued that a case of unconstitutional
application of such ordinance to the exercise of the
right of peaceable assembly presents itself. As in this
case there was no proof that the distance is less than
500 feet, the need to pass on that issue was obviated.
Should it come, then the qualification and observation
of Justices Makasiar and Plana certainly cannot be
summarily brushed aside. The high estate accorded
the rights to free speech and peaceable assembly
demands nothing less.
10.Ordinarily, the remedy in cases of this character
is to set aside the denial or the modification of the
permit sought and order the respondent official to
grant it. Nonetheless, as there was urgency in this
case, the proposed march and rally being scheduled
for the next day after the hearing, this Court,
571
VOL. 125, NOVEMBER 9, 1983
571
Reyes vs. Bagatsing
in the exercise of its conceded authority, granted the
mandatory injunction in the resolution of October 25,
1983. It may be noted that the peaceful character of
the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in
other assemblies held elsewhere. It is quite reassuring
such that both on the part of the national government
and the citizens, reason and moderation have
prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is
granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin,

Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., concurs with a separate opinion.
Makasiar, J., with the justification that in case of
conflict, the Philippine Constitutionparticularly the
Bill of Rightsshould prevail over the Vienna
Convention.
Aquino, J., dissenting, voted to dismiss the petition on
the ground that the holding of the rally in front of the
US Embassy violates Ordinance No. 7295 of the City of
Manila.
Abad Santos, J., to add anything to the learned opinion
of the Chief Justice is like bringing coal to Newcastle. I
just want to state for the record that I voted for the
issuance ex-parte of a preliminary mandatory
injunction.
Plana, J., see separate opinion.
De Castro, J., is on sick leave.
TEEHANKEE, J., concurring:
The Chief Justices opinion of the Court reaffirms the
doctrine of Primicias vs. Fugoso1 that the right to
freedom of speech and to peacefully assemble and
petition the government for redress of grievances are
fundamental personal rights of the people recognized
and guaranteed by the constitutions of democratic
countries and that the city or town mayors are not
conferred the power to refuse to grant
_______________
1 80 Phil 1.
572
572
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing

the permit, but only the discretion, in issuing the

permit, to determine or specify the streets or public
places where the parade or procession may pass or
the meeting may be held. The most recent graphic
demonstration of what this great right of peaceful
assembly and petition for redress of grievances could
accomplish was the civil rights march in Washington
twenty years ago under the late assassinated black
leader Martin Luther King, Jr. (whose birthday has now
been declared an American national holiday) which
subpoenaed the conscience of the nation, and
awakened the conscience of millions of previously
indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to
segregation and discrimination against the American
Negro.
The procedure for the securing of such permits for
peaceable assembly is succintly set forth in the
summary given by the Chief Justice in paragraph 8 of
the Courts opinion, with the injunction that the
presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as
they do, precedence and primacy. The exception of
the clear and present danger rule, which alone would
warrant a limitation of these fundamental rights, is
therein restated in paragraph 1, thus: The sole
justification for a limitation on the exercise of this
right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other
legitimate public interest.
It bears emphasis that the burden to show the
existence of grave and imminent danger that would
justify adverse action on the application lies on the
mayor as licensing authority. There must be objective

and convincing, not subjective or conjectural, proof of

the existence of such clear and present danger. As
stated in our Resolution of October 25, 1983, which
granted the mandatory injunction as prayed for, It is
essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the
licensing authority does not rely solely on his own
appraisal of what public welfare, peace or safety may
require. To justify such a limitation, there must be
proof of such weight and sufficiency
573
VOL. 125, NOVEMBER 9, 1983
573
Reyes vs. Bagatsing
to satisfy the clear and present danger test The
possibility that subversives may infiltrate the ranks of
the demonstrators is not enough. As stated by Justice
Brandeis in his concurring opinion in Whitney vs.
California2
Fear of serious injury cannot alone justify suppression
of free Speech and assembly. Men feared witches and
burned women. It is the function of speech to free men
from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech
is practiced. There must be reasonable ground to
believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the
evil to be prevented is a serious one * * *.
Those who won our independence by revolution were
not cowards. They did not fear political change. They
did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort
to rsrohibition of these functions essential (for)

effective democracy, unless the evil apprehended is

relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively
trivial harm to a society. * * * The fact that speech is
likely to result in some violence or in destruction of
property is not enough to justify its suppression. There
must be the probability of serious injury to the state.
Among freemen, the deterrents ordinarily to be applied
to prevent crimes are education and punishment for
violations of the law, not abridgment of the rights of
free speech and assembly. (Italics supplied)
The Courts opinion underscores that the exercise of
the right is not to be abridged on the plea that it may
be exercised in some other place (paragraph 6), and
that it is the duty of the city authorities to provide the
proper police protection to those exercising their right
to peaceable assembly and freedom of expression, (at
page 14) The U.S. Supreme Courts pronouncement in
Hague vs. Committee for Industrial Organization3 cited
in Fugoso is worth repeating:
* * * Wherever the title of streets and parks may rest,
they have immemorially been held in trust for the use
of the public and,
_______________
2 71 U.S. Law ed., 1105-1107.
3 307 U.S. 496, 515, 83 Law ed., 1423.
574
574
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens,

and discussing public questions. Such use of the

streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen * * * to
use the streets and parks for communication of views
on national questions may be regulated in the interest
of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be
abridged or denied.
We think the court below was right in holding the
ordinance quoted in Note 1 void upon its face. It does
not make comfort or convenience in the use of streets
or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere
opinion that such refusal will prevent riots,
disturbances or disorderly assemblage. It can thus, as
the record discloses, be made the instrument of
arbitrary suppression of free expression of views on
national affairs for the prohibition of all speaking will
undoubtedly prevent such eventualities. But
uncontrolled official suppression of the privilege
cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right.
(Italics supplied)
Needless to say, the leaders of the peaceable
assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid
the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of
the police to extend protection to the participants
staying at a discreet distance, but ever ready and
alert to perform their duty. But should any disorderly
conduct or incidents occur, whether provoked or

otherwise, it is well to recall former Chief Justice

Ricardo Paras injunction in his concurring opinion in
Fugoso, citing the 1907 case of U.S. vs. Apurado,4 that
such instances of *disorderly conduct by individual
members of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and
tumultuous rising against the authorities and render
illusory the right of peaceable assembly, thus:
It is rather to be expected that more or less disorder
will mark the public assembly of the people to protest
against grievances
_______________
4 7 Phil. 422, 426, per Carson, J.
575
VOL. 125, NOVEMBER 9, 1983
575
Reyes vs. Bagatsing
whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement,
and the greater the grievance and the more intense
the feeling, the less perfect, as a rule, will the
disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be
permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd
as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities,
then the right to assemble and to petition for redress
of grievances would become a delusion and snare and
the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would
expose all those who took part therein to the severest
and most unmerited punishment, if the purposes
which they sought to attain did not happen to be

pleasing to the prosecuting authorities. If instances of

disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished
therefor. (Italics supplied).
As it turned out, the demonstration was held on
October 26, 1983 peaceably and without any untoward
event or evil result, as pledged by the organizers (like
at least five previous peaceful demonstrations in the
area). However, even if there had been any incidents
of disorder, this would in no way show the Courts
mandatory injunction to have been wrongfully issued.
The salutary desire on the part of respondent to
prevent disorder cannot be pursued by the unjustified
denial and suppression of the peoples basic rights,
which would thereby turn out to be mere paper rights.
SEPARATE OPINION
PLANA, J.:
On the whole, I concur in the learned views of the
distinguished Chief Justice. I would like however to
voice a reservation regarding Ordinance No, 7295 of
the City of Manila which has been invoked by the
respondent.
The main opinion yields the implication that a rally or
demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for
coming within the terms of the prohibition of the cited
Ordinance which was adopted, so it is said, precisely to
implement a treaty obligation of the
576
576
SUPREME COURT REPORTS ANNOTATED
Reyes vs. Bagatsing
Philippines under the 1961 Vienna Convention on
Diplomatic Relations.

In my view, without saying that the Ordinance is

obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide
with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case
at bar, regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet from the
situs of the rally or demonstration.
Mandatory injunction granted.
Notes.The curtailment of the freedom of speech and
of the press and of radio and TV stations is permissible
for election purposes. (United Democratic Opposition
[UNIDO] vs. COMELEC, 104 SCRA 17.)
Peaceful picketing being part of the freedom of
speech, the fact that the language employed by the
picketers is far from being courteous and polite does
not give rise to a cause for libel and damages.
(Philippine Commercial & Industrial Bank vs.
Philnabank Employees Assn., 105 SCRA 314.)
The freedom of association should not be abridged.
(Lakas ng Bayan [Laban] vs. COMELEC, 82 SCRA 186.)
The exercise of police power by a local government
council is valid unless it contravenes the fundamental
law, or an act of the legislature, or unless it is against
public policy, or in unreasonable, oppressive, partial,
discriminating, or in derogation of a common right. (De
la Cruz vs. Paras, 123 SCRA 569.)
Where the offense for which a person was arrested is
that prescribed by Proclamation No. 2045 (rebellion,
subversion, etc.), the detainee has no right to bail
even after court charges have been filed. (Morales vs.
Enrile, 121 SCRA 538.)
The freedoms of speech and of the press are limited by
the clear and present danger rule and the balancing-

of-interest test. (Lagunzad vs. Vda. de Gonzales, 92

SCRA 476.)
o0o
Copyright 2015 Central Book Supply, Inc. All rights
reserved. [Reyes vs. Bagatsing, 125 SCRA 553(1983)]

540
SUPREME COURT REPORTS ANNOTATED
Katigbak vs. Solicitor General
G.R. No. 19328. December 22, 1989.*

ALEJANDRO KATIGBAK, and MERCEDES K.

KATIGBAK, plaintiffs-appellants, vs. THE
SOLICITOR GENERAL, EPIFANIO VILLEGAS,
ARTURO XAVIER, PONCIANO FERNANDO,
ROSENDO DOMINGO and LEONARDO LUCENA,
defendants-appellees.
G.R. No. 19329. December 22, 1989.*
REPUBLIC OF THE PHILIPPINES, plaintiffappellee, vs. ALEJANDRO KATIGBAK, and
MERCEDES K. KATIGBAK, defendants-appellants.
Anti-Graft and Corrupt Practices Act; RANo. 1379;
Forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his
salary as such and his other lawful income and the
income from legitimately acquired property has been
held to partake of the nature of a penalty; Proceeding
for forfeiture of property are deemed criminal or penal;
No retroactive effect.Whatever persuasiveness might
have been carried by the ruling on the issue of the
learned Trial Judge in 1961, the fact is that the nature
of R.A. No. 1379 as penal was in 1962 clearly and
categorically pronounced by this Court in Cabal v.
__________________
* FIRST DIVISION.
541
VOL. 180, DECEMBER 22, 1989
541
Katigbak vs. Solicitor General
Kapunan, Jr. Citing voluminous authorities, the Court in
that case declared that forfeiture to the State of
property of a public officer or employee which is
manifestly out of proportion to his salary as such x x
and his other lawful income and the income from

legitimately acquired property x x has been held x x to

partake of the nature of a penalty; and that
proceedings for forfeiture of property are deemed
criminal or penal, and, hence, the exemption of
defendants in criminal cases from the obligation to be
witnesses against themselves is applicable thereto.
The doctrine was reaffirmed and reiterated in 1971 in
Republic v. Agoncillo. And germane is the 1977 ruling
of the Court in de la Cruz v. Better Living, Inc.
involving among others the issue of the validity and
enforceability of a written agreement alleged to be in
violation of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Actto the effect
that the provisions of said law cannot be given
retroactive effect.
Same; Same; Same; Ex-post facto law; Bill of
Attainder; Penalty of forfeiture prescribed by R.A. No.
1379 cannot be applied to acquisition made prior to its
passage without running afoul of the Constitutional
provision condemning ex post facto laws or bills of
attainder; Reasons.The forfeiture of property
provided for in Republic Act No. 1379 being in the
nature of a penalty; and it being axiomatic that a law
is ex post facto which inter alia makes criminal an act
done before the passage of the law and which was
innocent when done, and punishes such an act, or,
assuming to regulate civil rights and remedies only, in
effect imposes a penalty or deprivation of a right for
something which when done was lawful, it follows
that that penalty of forfeiture prescribed by R.A. No.
1379 cannot be applied to acquisitions made prior to
its passage without running afoul of the Constitutional
provision condemning ex post facto laws or bills of
attainder. But this is precisely what has been done in
the case of the Katigbaks. The Trial Court declared
certain of their acquisitions in 1953, 1954 and 1955 to

be illegal under R.A. No. 1379 although made prior to

the enactment of the law, and imposed a lien thereon
in favor of the Government in the sum of
P100,000.00. Such a disposition is, quite obviously,
constitutionally impermissible.
PETITION to review the judgment of the Court of First
Instance of Manila.
The facts are stated in the opinion of the Court.
Augusto Kalaw for plaintiffs-appellants.
542
542
SUPREME COURT REPORTS ANNOTATED
Katigbak vs. Solicitor General
NARVASA, J.;
These cases were certified to this Court by the Court of
Appeals for resolution on appeal,1 since the central
issue involved is the constitutionality of Republic Act
No. 1379, An Act Declaring Forfeiture in Favor of the
State of Any Property Found To Have Been Unlawfully
Acquired by Any Public Officer or Employee and
Providing for the Proceedings Therefor.2 As posed by
the referral resolution,3 the question is whether or not
said statute
x x en cuanto autoriza la confiscacion en favor del
Estado de las propiedades ilegalmente adquiridas por
un funcionario o empleado del Gobierno antes de la
aprobacion de la ley x x es nula y anticonstitucional
porque:
(a) es una Ley ex-post facto que autoriza la
confiscacion de una propiedad privada adquirida antes
de la aprobacion de la ley y obliga el funcionario o
empleado publico a explicar como adquirio sus
propiedades privadas, compeliendo de esta forma a
incriminarse a si mismo, y en cierto modo autoriza la

confiscacion de dicha propiedad sin debido proceso de

la ley; y
(b) porque autoriza la confiscacion de inmuebles
previamente hipotecados de buena fe a una persona.
The proceedings at bar originated from two (2) actions
filed with the Court of First Instance of Manila.
The first was Civil Case No. 30823, instituted by the
Spouses Alejandro Katigbak and Mercedes Katigbak. In
their complaint they prayed that: (1) the Solicitor
General be enjoined from filing a complaint against
them for forfeiture of property under the above
mentioned R.A. No. 1379; (2) said statute be declared
unconstitutional in so far as it authorizes forfeiture of
properties acquired before its approval, or,
alternatively, a new preliminary investigation of the
complaint filed against Alejandro Katigbak by NBI
officers be ordered; (3) properties acquired by
Alejandro Katigbak when he was out of the
government service be ex_____________
1 Sec. 3, Rule 52 of the Rules of Court of 1940 (Sec. 3,
Rule 50, [present] Rules of 1964).
2 Eff. June 18, 1955.
3 Promulgated on Nov. 20, 1961 by the Special Third
Division of the Court of Appeals: Hernandez,
Rodriguez, and Villamor, JJ.
543
VOL. 180, DECEMBER 22, 1989
543
Katigbak vs. Solicitor General
cluded from forfeiture proceedings; and (4) the NBI
officers and the Investigating Prosecutor (Leonardo
Lucena) be sentenced to pay damages.

The second action was Civil Case No. 31080,

commenced by petition4 filed by the Republic of the
Philippines against Alejandro Katigbak, his wife,
Mercedes, and his son, Benedicto, seeking the
forfeiture in favor of the State of the properties of
Alejandro Katigbak allegedly gotten by him illegally, in
accordance with R.A. No. 1379. Said properties were
allegedly acquired while Katigbak was holding various
positions in the government, the last being that of an
examiner of the Bureau of Customs; and title to some
of the properties were supposedly recorded in the
names of his wife and/or son.
The cases were jointly tried. The judgment thereafter
ren-dered5 (1) dismissed the complaint and the
counterclaim in Civil Case No. 30823, the first action;
and (2) as regards Civil Case No. 31080, ordered that
from the properties (of Katigbak) enumerated in this
decision as acquired in 1953, 1954 and 1955, shall be
enforced a lien in favor of the Government in the sum
of P100,000.00.6 The judgment also declared that the
impatience of the Investigating Prosecutor during
the preliminary inquiry into the charges filed against
Katigbak for violation of R.A. No. 1379 did not amount
to such arbitrariness as would justify annulment of the
proceedings since, after all, Katigbak was able to fully
ventilate his side of the case in the trial court;7 that
R.A. No. 1379 is not penal in nature, its objective not
being the enforcement of a penal liability but the
recovery of property held under an implied trust;8 that
with respect to things acquired through delicts,
prescription does not run in favor of the of-fender;9
that Alejandro Katigbak may not be deemed to have
been compelled to testify against his will since he took
the witness stand voluntarily.10 The Katigbaks moved
for reconsid_________________

4 Later amended.
5 Under date of April 11, 1960, by Hon. Magno S.
Gatmaitan (later, Associate Justice and then, Presiding
Justice, of the Court of Appeals).
6 Record on Appeal, pp. 336-381.
7 Id., p. 375.
8 Id., p. 376.
9 Id., p. 377.
10 Id., pp. 379-380.
544
544
SUPREME COURT REPORTS ANNOTATED
Katigbak vs. Solicitor General
eration and/or new trial. The Trial Court refused to
grant a new trial but modified its decision by reducing
the amount of P100,000.00 in the dispositive portion
x x to P80,000.00.11
Appeal was taken from this verdict of the Court of
Appeals by the Katigbaks which appeal, as earlier
stated, was certified to this Court.
No less than 18 errors have been attributed by the
Katigbaks to the Court aquo.12 They concern mainly
the character of R.A. No. 1379 as an ex-post facto law,
principally because it imposes thepenalty of forfeiture
on a public officer or employee acquiring properties
allegedly in violation of said R.A. No. 1379 at a time
when that law had not yet been enacted.13
Whatever persuasiveness might have been carried by
the ruling on the issue of the learned Trial Judge in
1961, the fact is that the nature of R.A. No. 1379 as
penal was in 1962 clearly and categorically
pronounced by this Court in Cabal v. Kapunan, Jr.14
Citing voluminous authorities, the Court in that case
declared that forfeiture to the State of property of a

public officer or employee which is manifestly out of

proportion to his salary as such x x and his other lawful
income and the income from legitimately acquired
property x x has been held x x to partake of the nature
of a penalty; and that proceedings for forfeiture of
property although technically civil in form are deemed
criminal or penal, and, hence, the exemption of
defendants in criminal cases from the obligation to be
witnesses against, themselves is applicable
thereto.15 The doctrine was reaffirmed and reiterated
in 1971 inRepublic v. Agoncillo.16 And germane is the
1977 ruling of the Court in de la Cruz v. Better
________________
11 Id., pp. 494-505.
12 Rollo, pp. 111 etseq.
13 Errors Numbered I to V.
14 6 SCRA 1059.
15 At pp. 1063-1064, and 1066; parenthetical insertion
and emphasis, supplied. Occasion was had, at p. 1067,
to distinguish the ruling from that in Almeda v. Perez,
L-18428, Aug. 30, 1962, which had reference to the
purely procedural aspect of said proceeding, and x x
(had) no bearing on the substantial rights of the
respondents therein, particularly their constitutional
right against self-incrimination.
16 40 SCRA 579, 584.
545
VOL. 180, DECEMBER 22, 1989
545
Katigbak vs. Solicitor General
Living, Inc.17involving among others the issue of the
validity and enforceability of a written agreement
alleged to be in violation of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt

Practices Actto the effect that the provisions of said

law cannot be given retroactive effect.
The forfeiture of property provided for in Republic Act
No. 1379 being in the nature of a penalty; and it being
axiomatic that a law is ex-post facto which inter alia
makes criminal an act done before the passage of the
law and which was innocent when done, and punishes
such an act, or, assuming to regulate civil rights and
remedies only, in effect imposes a penalty or
deprivation of a right for something which when done
was lawful, it follows that that penalty of forfeiture
prescribed by R.A. No. 1379 cannot be applied to
acquisitions made prior to its passage without running
afoul of the Constitutional provision condemning ex
post facto laws or bills of attainder.18 But this is
precisely what has been done in the case of the
Katigbaks. The Trial Court declared certain of their
acquisitions in 1953, 1954 and 1955 to be illegal under
R.A. No. 1379 although made prior to the enactment of
the law, and imposed a lien thereon in favor of the
Government in the sum of P100,000.00. Such a
disposition is, quite obviously, constitutionally
impermissible.
As to the issue of whether or not the Prosecuting
Fiscal, Leonardo Lucena, should be made answerable
for damages because the filing of the forfeiture
proceedings, Civil Case No. 31080, resulted from a
preliminary investigation which was allegedly
conducted by Fiscal Lucena in an arbitrary and
highhanded manner, suffice it to state that the trial
court found no proof of any intention to persecute or
other ill motive underlying the institution of Civil Case
No. 31080. The trial court further found that during the
preliminary investigation by Fiscal Lucena on
September 13, 19, 24, 25 and 26,1956, Alejandro
Katigbak was assisted by reputable and competent

counsel, Atty. Estanislao A. Fernandez and Atty. Antonio

Carag. The mere fact that the preliminary investigation
was terminated against the objection of Katigbaks
counsel, does not necessarily signify that he was
denied the right to such an investigation. What is
more, the Trial
_______________
17 78 SCRA 274, 287.
18 Sec. 11, Rule III, 1935 Constitution, then in force.
546
546
SUPREME COURT REPORTS ANNOTATED
Pilapil vs. Court of Appeals
Courts factual conclusion that no malice or bad faith
attended the acts of public respondents complained of,
and consequently no award of damages is proper,
cannot under established rule be reviewed by this
Court absent any showing of the existence of some
recognized exception thereto.

The foregoing pronouncements make unnecessary the

determination of the other issues.
WHEREFORE, the judgment of the Court aquo, in so far
as it pronounces the acquisitions of property by the
appellants illegal in accordance with Republic Act No.
1379 and imposes a lien thereon in favor of the
Government in the sum of P80,000.00 is hereby
REVERSED AND SET ASIDE, but is AFFIRMED in all
other respects. No pronouncement as to costs.
SO ORDERED.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ.,
concur.
Judgment reversed and set aside.
Note.What the Anti-Graft Law prohibits is the actual
intervention by a public official in the transaction
which he has a financial interest. (Trieste vs.
Sandiganbayan, 145 SCRA 508.)
o0o
Copyright 2015 Central Book Supply, Inc. All rights
reserved. [Katigbak vs. Solicitor General, 180 SCRA
540(1989)]