EN BANC

[G.R. No. L-9141. September 25, 1956.]

Testate Estate of OLIMPIO FERNANDEZ, deceased. REPUBLIC OF THE PHILIPPINES, claimant-Appellee,
vs. ANGELINA OASAN VDA DE FERNANDEZ, PRISCILLA O. FERNANDEZ, and ESTELA O.
FERNANDEZ, Oppositors-Appellants.

DECISION
LABRADOR, J.:
Appeal from a decision of the Court of Tax Appeals sustaining the validity of a tax amounting to
P7,614.60 against the estate of Olimpio Fernandez under the War Profits Tax Law (Republic Act No. 55).
Olimpio Fernandez and his wife Angelina Oasan had a net worth of P8,600 on December 8, 1941. During
the Japanese occupation the spouses acquired several real properties, and at the time of his death on
February 11, 1945 he had a net worth of P31,489. The Collector of Internal Revenue assessed a war
profits tax on the estate of the deceased at P7,614.60, which his administratrix refused to pay. The case
was brought to the Court of Tax Appeals which sustained the validity and legality of the assessment. The
administratrix has appealed this decision to this Court.
The most important questions raised by the Appellant are: (a) the unconstitutionality of the war chanrobles virtuallawlib rary

profits tax law for the reason that it is retroactive; (b) the inapplicability of said law to the estate of
chan robles virt ualawlibra ry

the deceased Olimpio Fernandez, because the law taxes individuals; and (c) the separate taxation of chan robles virtualawlib rary

the estate of the deceased Olimpio Fernandez from that of his wife’s, because Olimpio Fernandez died
before the law was passed.
Appellant’s contention that the law is invalid or unconstitutional because it acts retroactively, thus
violating the due process of law clause, is not supported by reason or authority. The tax, insofar as
applicable to the estate of the deceased Olimpio Fernandez, is both a property tax and a tax on income.
It is a property tax in relation to the properties that Fernandez had in December, 1941; and it is an chan robles virt ualawlibrary

income tax in relation to the properties which he purchased during the Japanese occupation. In both
cases, however, the war profits tax may not be considered as unconstitutional.
The doctrine of unconstitutionality raised by Appellant is based on the prohibition against ex post facto
laws. But this prohibition applies only to criminal or penal matters, and not to laws which concern civil
matters or proceedings generally, or which affect or regulate civil or private rights (Ex parte Garland, 18
Law Ed., 366; 16 C.J. S., 889-891).
cha n robles vir tualawlibra ry

“At an early day it was settled by authoritative decisions, in opposition to what might seem the more
natural and obvious meaning of the term ex post facto, that in their scope and purpose these provisions
were confined to laws respecting criminal punishments, and had no relation whatever to retrospective
legislation of any other description. And it has, therefore, been repeatedly held, that retrospective laws,
when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious
to its provisions on other grounds than their respective character.” (1 Cooley, Constitutional Limitations,
544-545.)
We have applied the above principle in the cases of Mekin vs. Wolf, 2 Phil. 74 and Ongsiako vs. Gamboa,
47 Off. Gaz., No. 11, 5613, 5616.
It has also been held that property taxes and benefit assessments on real estate, retroactively applied,
are not open to the objection that they infringe upon the due process of law clause of the Constitution
(Wagner vs. Baltimore, 239 U. S. 207, 60 L. Ed. 230); that taxes on income are not subject to the chan robles virt ualawlibra ry

constitutional objection because of their retroactivity. The universal practice has been to increase taxes
on incomes already earned; yet notwithstanding this retroactive operation, income taxes have not
chan robles vir tualawlibra ry

been successfully assailed as invalid. The uniform ruling of the courts in the United States has been to
reject the contention that the retroactive application of revenue acts is a denial of the due process
guaranteed by the Fifth Amendment (Welch vs. Henry, 305 U. S. 134, 83 L. Ed. 87).
It has also been held that in order to declare a tax as transgressing the constitutional limitation, it must
be so harsh and oppressive in its retroactive application (Idem.). But we hold that far from being unjust
or harsh and oppressive our war profits tax is both wise and just. The last Pacific war and the Japanese
occupation of the Islands have wrought divergent effects upon the different sectors of the population.
The quiet and the timid, who were afraid to go out of their homes or who refused to have any dealings
with the enemy, stopped from exercising their callings or professions, losing their incomes; and they chan robles virtualawlib rary

supported themselves with properties they already owned, selling these from time to time to raise
funds with which to purchase their daily needs. These were reduced to penury and want. But the bold
and the daring, as well as those who were callous to the criticism of being collaborators, engaged in
trading in all forms or sorts of commodities, from foodstuffs to war materials, earning fabulous incomes
and acquiring properties with their earnings. Those who were able to retain their properties found
themselves possessed of increased wealth because inflation set in, the currency dropped in value and
properties soared in prices. It would have been unrealistic for the legislature to have ignored all these
facts and circumstances. After the war it could not, with justice to all concerned, apportion the expenses
of government equally on all the people irrespective of the vicissitudes of war, equally on those who had
their properties decimated as on those who had become fabulously rich after the war. Those who were
fortunate to increase their wealth during the troubulous period of the war were made to contribute a
portion of their newly-acquired wealth for the maintenance of the government and defray its expenses.
Those who in turn were reduced to penury or whose incomes suffered reductions could not be
compelled to share in the expenses to the same extent as those who grew rich. This in effect is what the
legislature did when it enacted the War Profits Tax Law. The law may not be considered harsh and
oppressive because the force of its impact fell on those who had amassed wealth or increased their
wealth during the war, but did not touch the less fortunate. The policy followed is the same as that
which underlies the Income Tax Law, imposing the burden upon those who have and relieving those
who have not. No one can dare challenge the law as harsh and oppressive. We declare it to be just and
sound and overrule the objection thereto on the ground of unconstitutionality.
The contention that the deceased Olimpio Fernandez or his estate should not be responsible because he
died in 1945 and was no longer living when the law was enacted at a later date, in 1946, is absolutely
without merit. Fernandez died immediately before the liberation and the actual cessation of hostilities.
He profited by the war; there is no reason why the incident of his death should relieve his estate from
chan robles virtualawlib rary

the tax. On this matter we agree with the Court of Tax Appeals that the provisions of section 18 of the
Internal Revenue Code have been incorporated in Republic Act No. 55 by virtue of Section 9 thereof,
which provides: chanrobles virtuallawlib rary

SEC. 9. Administrative remedies. — All administrative, special and general provisions of law, including
the laws in relation to the assessment, remission, collection and refund of national internal revenue
taxes, not inconsistent with the provisions of the Act, are hereby extended and made applicable to all
the provisions of this law, and to the tax herein imposed.”
Under section 84 of the National Internal Revenue Code, the term “person” means an individual, a trust,
estate, corporation, or a duly registered general co-partnership. If the individual is already dead,
property or estate left by him should be subject to the tax in the same manner as if he were alive.
The last contention is also without merit. The property which Olimpio Fernandez was possessed of in
December, 1941 is presumed to be conjugal property and so are the properties which were acquired by
him during the war, because at that time he was married. There is no claim or evidence to support the
claim that any of the properties were paraphernal properties of the wife; so the presumption stands
chan robles virtualawlibra ry

that they were conjugal properties of the husband and wife. Under these circumstances they cannot be
considered as properties belonging to two individuals, each of which shall be subject to the tax
independently of the other.
For the foregoing considerations, the judgment appealed from is hereby affirmed, with costs against
the Appellants.
Paras, C.J., Padilla, Montemayor, Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia, and Felix, JJ.,
concur.
BAYOT VS. SANDIGANBAYAN [128 SCRA 383; NO.L-61776
TO NO.L-61861; 23 MAR 1984]

Facts: Bayot is one of the several persons who was accused in more than
100 counts of estafa thru falsification of Public documents before the
Sandiganbayan. The said charges started from his alleged involvement as a
government auditor of the commission on audit assigned to the Ministry
ofeducation and culture, with some other employees from the said ministry. The
bureau of treasury and the teacher’s camp in Baguio City for the preparation
and encashment of fictitious TCAA checks for the nom-existent obligations of
the teacher’s camp resulting in damage to the government of several millions.
The 1st 32 cases were filed on july 25, 1987, while Bayot ran for municipal
mayor of Amadeo Cavite and was elected on January 1980. but on May 1980
Sandiganbayan promulgated a decision convicting the accused together with his
other co-accused in all but one of the thirty two cases filed against them.

On Mach 16, 1982 Batas Pambansa Blg 195 was passed amending RA 3019.

Issue: Whether or Not it would be violative of the constitutional guarantee

against an ex post facto law.

Held: The court finds no merit in the petitioner’s contention that RA 3019 as
amended by Batas Pambansa Blg 195, which includes the crime of estafa
through falsification of Public Documents as among crimes subjecting the public
officer charged therewith with suspension from public office pending action in
court, is a penal provision which violates the constitutional prohibition against
the enactment of ex post facto law. Accdg to the RPC suspension from
employment and public office during trial shall not be considered as a penalty.
It is not a penalty because it is not a result of a judicial proceeding. In fact, if
acquitted the official who is suspended shall be entitled to reinstatement and
the salaries and benefits which he failed to receive during suspension. And does
not violate the constitutional provision against ex post facto law.

The claim of the petitioner that he cannot be suspended because he is currently

occupying a position diffren tfrom that under which he is charged is untenable.
The amendatory provision clearly states that any incumbent public officer
against whom any criminal prosecution under a validinformation under RA 3019
for any offense involving fraud upon the government or public funds or property
or whatever stage of execution and mode of participation shall be suspended
from office. The use of the word “office” applies to any office which the
officer charged may be holding and not only the particular office under which he
was charged.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-54645-76 December 18, 1986

REYNALDO R. BAYOT, petitioner,

vs.
THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.

Alfredo Estrella and Ramon Quisumbing, Jr. for petitioner.

Fred Henry V. Marallag for petitioners-intervenors.

The Solicitor General for respondents.

ALAMPAY, J.:

The petition for review in this case is intrinsically and inseparably linked to another case earlier
resolved by this Court and which is G.R. Nos. 54719-50, entitled "Lorenzo Ga. Cesar versus
Honorable Sandiganbayan and People of the Philippines." In the abovementioned case, the
evidence submitted by the prosecution which served as basis of the Sandiganbayan's decision are
no less than the evidence adduced against the herein petitioner, Reynaldo Bayot. Petitioner herein,
Reynaldo R. Bayot, together with his co-accused Lorenzo Ga. Cesar, was one of those charged and
convicted in a joint decision by the Sandiganbayan, of the crime of estafa thru falsification of public
documents. Both were sentenced to a total of 577 years imprisonment by the Sandiganbayan on
exactly the same evidence which this Court had pronounced as "woefully inadequate" and "too
conjectural and presumptive to establish personal culpability." (Cesar vs. Sandiganbayan, 134
SCRA 105)

The petition for review filed by Lorenzo Ga. Cesar was granted by this Court and in the decision
rendered on January 17, 1985 in G.R. Nos. L-54719-50, 134 SCRA 105, the Court en banc,
reversed the decision of the Sandiganbayan and acquitted Lorenzo Ga. Cesar. The charge and the
evidence submitted against Lorenzo Ga. Cesar being one and the same against the herein petitioner
Reynaldo R. Bayot, the Court should do no less with respect to the latter.

Reynaldo R. Bayot and Lorenzo Ga. Cesar, were among the thirteen officials and employees of the
Ministry of Education and Culture who, in thirty-two separate Informations were charged before the
Sandiganbayan, with the crime of estafa thru falsification of public documents. Accused AMADO
FERNANDEZ and JOSEPHINE ESTANISLAO who were the ones principally blamed for the said
crimes managed to flee abroad and were not arraigned. Five other accused, JAIME LUBINA, a
cashier aide and JUANITO DALANGIN, ERNESTO DE GUZMAN, SERGIO GARCIA, and
LAUREANO GARCIA, paying tellers in the Bureau of Treasury, were acquitted. Those convicted by
the Sandiganbayan were Iluminada Vizco, cashier of the Ministry of Education and Culture in Manila,
Rosalie Lopez, a Senior Budget Examiner of the MEC, Salvador Daza, Assistant National Treasurer
of the Bureau of Treasury, as well as Reynaldo R. Bayot and Lorenzo Ga. Cesar.
The Informations in the thirty-two cases of estafa thru falsification of public documents, subject of the
instant petition, except for the names of the paying tellers, the dates of the commission of the
offense and the amount involved uniformly charge-

That in, about and during the period ... 1 and within the jurisdiction of this Honorable Court, the
accused Amado Fernandez, Superintendent of the Teachers' Camp in Baguio and Joseph
Estanislao, Cashier of the same office with the intent of defrauding the Philippine Government
and with the indispensable cooperation and assistance of Lorenzo Cesar, former Assistant
Director of the Bureau of Elementary Education; Reynaldo Bayot, a former Auditor of the Ministry
of Education and Culture MEC; Jaime Lubina, a Cashier's aide of the Teachers' Camp in Baguio
Iluminada Vizco, Cashier of the Ministry of Education and Culture in Manila; Maximiano Huguete,
a cashier assistant of the Ministry of Education and Culture in Manila; Rosalie Lopez, a Ministry of
Education Senior Budget Examiner; Salvador Daza, Assistant National Cashier of the Bureau of
Treasury and ... 2 a paying teller of the Bureau of Treasury, are taking advantage of their positions
and mutually helping one another, did then and there wilfully, unlawfully and feloniously case the
preparation and falsification of the following checks ... 3 by making it appear that all the foregoing
checks were duly funded and covered by cash disbursement ceilings of the Ministry of Education
and Culture; that said checks were payable to suppliers in payment of previously delivered
construction supplies and materials; and that the same checks were supported by duly prepared
and approved vouchers; when in truth and in fact as respondents knew, all of the foregoing were
all false and incorrect and by making it appear further that the signatories to the TCAA checks
namely: Lorenzo Cezar and Reynaldo Bayot were duly authorized to sign and issue the said
checks and that the same checks were an regularly endorsed to either Amado Fernandez or
Joseph Estanislao when in truth, and in fact, as all the respondents knew, all these were not true
because Lorenzo Cesar and Reynaldo Bayot were no longer authorized to sign Ministry of
Education and Culture TCAA chedks and the supposed payees never delivered and alleged
supplies and thus never endorsed the TCAA Checks and as a result of all of the foregoing
falsifications, the said accused were able to illegally encash and get the proceeds of all of the
stated TCAA checks in the total amount of ... 4 of which offenses were clearly committed in
relation to the offices of the accused, and once in the possession of the said amount the accused
misappropriated, misapplied and converted the same amount for their own personal needs to the
damage and prejudice of the Philippine Government in the total amount of ... (Decision, Rollo, pp.
37-38)

After arraignment and trial of the various accused, except those two accused who had fled to
another country, the trial court rendered its decision stating the following findings of facts:

xxx xxx xxx

... Sometime in September 1977, Fernandez, who was then the Superintendent of the
Teachers' Camp in Baguio City, one of the agencies under the administration and
supervision of the Ministry of Education and Culture which win hereinafter be referred to as
(MEC), went to the office of Vizco, cashier of the MEC, located within the compound of the
said Ministry in Arroceros, Manila, to seek Vizco's help in typing checks for alleged prior
obligation of the Teachers' Camp which were funded but the funds for which have never
been used. Fernandez sought the help of Vizco because it would be better for him to go to
Baguio City with the approved checks already signed than if he were still to go to Baguio City
just to have the checks typed and then come back to Manila for the signatories thereof which
will entail too much expense on the part of the government. Vizco was under no obligation to
do what Fernandez was requesting from her for that was the duty of the cashier of Teachers'
Camp, but nevertheless she acceded thereto though she was surprised by the number of
approved vouchers to each of which were attached a check and a piece of paper with a 1975
date. The blank checks were TCAA checks of the SN 4 series issued by the Bureau of
Treasury only in 1976 (TSN., 255, February 6, 1980 hearing) and requisitioned in 1977 by
 the MEC (Exhibits NN-20-1 to NN-20-11) and under the custody of Huguete a cashier
assistant of Vizco. The aforesaid vouchers were duly accomplished and the originals thereof
were signed by Rosalia Lopez in behalf of David Tomelden, Chief, School Finance Division
of the MEC. Assistant Director Lorenzo Ga. Cesar, who in his capacity as Assistant Director
of the Bureau of Public Schools in 1975 was authorized to sign checks for payment of the
Baguio Teachers' Camp, and Reynaldo Bayot, who as Auditor of the Bureau of Public
Schools used to sign the checks of the Teachers' Camp, also signed the originals of the
vouchers. There was no supporting document attached to the vouchers whatsoever. Vizco
accompanied Fernandez to her two clerks, Merly del Prado and Estrella Samonte, and told
the two to attend to the request of Fernandez. Faithful employees as they are, Del Prado and
Samonte typed the checks in 4 copies as instructed by putting the 1975 date written on the
piece of paper attached to the checks was the date thereof and the other entries therein like
the payees, 5 the amounts and the accounting symbols which were taken from the vouchers to
which the checks were attached. Actually, however, the Teachers' Camp had no obligation to pay
said payees as it had never negotiated with or received any supply and material from them. The
name of Cezar and Bayot as the persons who will sign the checks were typed based also on the
vouchers or pursuant to the instruction of Fernandez. After typing the checks, the two clerks
stamped the word "Paid" on all copies of the vouchers and then brought them to Hilario Guiyab,
working directly under Vizco, who initialed them and thereafter forwarded the same to Vizco who
also initialed them whenever she had time as a matter of procedure after she the checks at the
vouchers from which the clerks copied. The vouchers and checks then given to Fernandez who
came back for them. There were about three or four times that Fernandez went back to Vizco's
office for preparation of the checks.

Eventually, the checks were cashed by Fernandez and Estanislao in the Bureau of Treasury,
accompanied once in a while by Lubina, a cashier's aide on the Teachers' Camp. The
checks appeared to have been indorsed to them but in truth and in fact such indorsement
were all forgeries. Before encashment, the checks were first brought by Fernandez and
Estanislao to Daza, Assistant National Cashier, who initialed them to show his approval for
encashment pursuant to a standing regulation in his Bureau that TCAA checks in the amount
of from P2,000.00 to less than P10,000.00 should first be approved by him before
encashment. Then said checks were cashed either by De Guzman, De Guia, Garcia or
Dalangin. ... (Rollo, Vol. I, pp. 39-42)

With respect to Reynaldo Bayot, it was stated by the trial court that he, with Lorenzo Ga. Cesar
signed the vouchers and checks and in this belief convicted both. The trial court said:

xxx xxx xxx

Like Cesar, the liability of Bayot is predicated on his having signed the originals of the
vouchers, the existence of which and the appearance of his signatures thereon has been
testified to before by Bautista, Del Prado, Samonte and Vizco. He also signed the checks
issued pursuant to said vouchers. Had he not signed them the checks would not have been
processed and finally encashed. The claim of Bayot that bis signatures on the checks were
forged as shown by the testimony and report of his expert witness Maniwang that there exist
significant differences in handwriting characteristics between his signatures on the checks
(questioned signatures) and the exemplars of his standard signatures (Exhibit 104-Bayot)
dwindles in the face of the testimony and handwriting examination report of Tabayoyong that
"there exist fundamental significant similarities in writing characteristics between the
questioned signatures and his standard signatures such as in structural pattern,
inconspicuous Identifying details, free and coordinated strokes especially in curves and
ornate designs of the signatures (Exhibit FFF). ... (Rollo, pp. 52-53)
After the petition in this case was given due course with the resolution of the Court dated March 26,
1985 (Rollo, Vol. II, pp. 49-50), petitioner Reynaldo R. Bayot, in addition to his initial memorandum
dated August 3, 1981 (Rollo, Vol. II, pp. 390-452), submitted a supplemental memorandum dated
March 26, 1985 (Rollo, Vol. II, pp. 494-501), underscoring the fact that the respondent
Sandiganbayan, premised his conviction on its consideration that "the originals of the vouchers, the
existence of which and the appearance of his signatures thereon has been testified by Bautista, Del
Prado, Samonte and Vizco" (Decision of the Sandiganbayan, p. 18).

Petitioner Reynaldo R. Bayot assails the conclusion arrived at by the trial court and deplores his
conviction by the Sandiganbayan based only on its unwarranted conclusion that the signatures on
the vouchers and checks were made by him when there exist contrary and more credible evidence
establishing said signatures to be forgeries. He further submits that like his co-accused Lorenzo Ga.
Cesar, whom this Court acquitted, he is entitled to a verdict of acquittal as the evidence submitted
against both of them were pronounced to be "woefully inadequate" and "too presumptive and
conjectural to establish personal culpability."

Repeatedly stressed, moreover, by petitioner Bayot, in all his pleadings and from the very start, is
that his alleged criminal responsibility would depend on whether he did in fact sign the vouchers and
checks in question, matters he had always persistently denied.

A review of the testimonies given during the trial of the witnesses, Blanquita Bautista, Del Prado,
Samonte, and Vizco, disclose that the conclusion reached by the trial court cannot be sued Without
any controversion, it is indicated that Blanquita Bautista, Chief Accountant of the MEC simply
declared:

Sometime in October 1977 she received a call from Mrs. Perez of the Bureau of Treasury
about the TCAA checks, with SN-4 series drawn by MEC in 1975 but which TCAA checks
were only issued by the Bureau in 1976 and requisitioned by MEC in 1977; that she
requested Mrs. Perez to write the Minister about it so she could also determine the
signatories thereto, the Code number and purpose of issuance etc. That Fernandez and
Estanislao having of her inqueries went to see her to inform her that the TCAA checks were
in payment of supplies which were not funded by the Chief Accountant Angel Martinez; that
the suppliers were readying to file but assured her that the checks were regular. That
sometime in June 1978, she asked from Estanislao for copies of the checks dated October
1975 but was given only xerox copies thereof andwas told that the original copies of the
vouchers were burned by Bayot. But then gam suddenly in November 1977 copies of
vouchers were found on the table of Mrs. Venture. (TSN, February 6, 1980). [Rollo, p. 403]

Her testimony does not carry any declaration that Bayot signed the vouchers, much less that he
signed the checks issued pursuant thereto. The conclusion reached by the Sandiganbayan that
Reynaldo Bayot signed the vouchers and checks in question was, therefore, recklessly made and in
an utterly unfair finding that is not established by the evidence on record.

As can be noted, what witness Bautista only declared was that sometime in June 1978 she asked
from the other accused Jose Estanislao for copies of the checks dated October, 1975, but she was
told that the original copies were burned by Bayot, and that in November 1977, copies of the
vouchers were found on the table of Mrs. Ventura (TSN., Feb. 6, 1980). The information given by the
principal accused Estanislao, that Bayot burned the original copies of the vouchers is patently
hearsay evidence. But previously noted by this Court in its resolution of the Cesar vs.
Sandiganbayan case, supra, the signed vouchers were never presented in court. The duplicate
copies form part of the records but they do not contain any signature. The name of the petitioner is
typed on the duplicate copies but no signature appears on the top of his name (134 SCRA, on pages
122-123).

Regarding the alleged testimonies of the other witnesses, Estrella Samonte, Merly del Prado, and
Iluminada Vizco, alluded to and relied upon by Sandiganbayan, not even in the Comment to the
petition filed by the Solicitor General is there mention that anyone of these witnesses ever saw
petitioner Bayot (and Cesar) sign the checks and vouchers. In fact, the gist of the testimonies of
these prosecution witnesses, as condensed in the Memorandum for the Sandiganbayan in this case,
indicates the contrary. As reflected in respondent Sandiganbayan's Statement of Facts and of the
Case, dated July 28, 1981, the submission is made that:

The names of Cesar and Bayot as the persons to sign the checks were typed and stamp-
marked, respectively, on the checks, as per instruction of Fernandez.

After typing the checks, the two clerks stamped the word "PAID" on an copies of the
vouchers and brought them to Hilario Ginyab working directly under Vizco, who initialed
them. For her part, Vizco also initialed the vouchers after tallying the checks against the
vouchers from which they were copied. The vouchers and checks were then given to
Fernandez who came back for them. The latter returned three or four times with other checks
which were prepared in the manner as narrated above.

As the time of the preparation of the checks, Cesar was already Region IV Director of MEC
while Bayot(herein petitioner) was out of the government service.

xxx xxx xxx (Rollo, pp. 378-379) [Emphasis supplied]

While the purported signatures of Lorenzo Ga. Cesar and Reynaldo Bayot were typed on the subject
checks, what is clear is that the preparation of the documents were made in September, 1977 at the
instance or initiative of Amado Fernandez, Superintendent of the Teachers' Camp and one of those
principally accused but who later fled. In 1977, petitioner Bayot, like Lorenzo Ga. Cesar, was no
longer working with the MEC nor connected with said office for over two years before. This
circumstance strongly militates against the Sandiganbayan's mistaken view that Iluminada Vizco
testified as a fact that Cesar and Bayot signed said documents. Analysis of the evidence will
establish that Iluminada Vizco only saw the signatures of Bayot and Cesar on the originals of the
vouchers but it is also indicated that their signatures were pre-affixed on the vouchers (Exh. NN-11,
Sworn Statement of Vizco. [See Cesar vs. Sandiganbayan, 134 SCRA, on page 116]).

The glaring fact is that none of the witnesses relied upon by the Sandiganbayan testified that they
personally saw the accused Reynaldo R. Bayot (or Lorenzo Ga. Cesar) sign the referred vouchers
and checks. The testimonies of the prosecution witnesses, leave much to be desired. Del Prado and
Samonte merely testified that upon instructions of Vizco and Fernandez, they prepared the
questioned checks. Neither of them, however, certified that Bayot had any participation in drawing
up said checks or the vouchers corresponding thereto. The conclusion arrived at by the
Sandiganbayan is, therefore, manifestly faulty and erroneous.

In this regard, this Court, in the Cesar vs. Sandiganbayan case, resolved the factual issue of
whether the accused officials signed said vouchers and checks, and set aside the findings and
conclusions of the Sandiganbayan.

It is worth repeating the pronouncements made by the Court in this regard which We quote from the
aforestated decision (Cesar vs. Sandiganbayan, supra, on pages 125-126):
xxx xxx xxx

On the basis of the foregoing testimonies that the signatures on the missing documents must
have been genuine signatures of the petitioner because in the past, the respondent court
arrived at a conclusion that the petitioner signed the lost vouchers.

We are constrained to reverse the respondent court's finding and to rule that this kind of
evidence is too inconclusive and conjectural to form a basis for a prison sentence of 577
years.

There is no basis for a finding of guilt beyond reasonable doubt that the petitioner really
signed the vouchers. The documents are missing and the witnesses are relying on pure
memory of what they saw around three years earlier. Having had a hand in the typing and
preparation of instruments to a serious crime which shocked the nation, they would not
testify otherwise or they would then be respondents, at the very least, in administrative
proceedings. Accused Vizco was, herself found guilty and sentenced accordingly in these
cases.

Moreover, the two typists were acting under instructions from Superintendent Fernandez and
their own chief, Iluminada Vizco. The number of checks being prepared was voluminous.
The clerks could not have given more than a quick glance at the signatures on the missing
vouchers. It was not their duty to verify authenticity of signatures. Their work was purely
manual or mechanical in obedience to instructions. There is the added factor in this case that
no less than the Secretary of Education the Honorable Juan L Manuel himself later sent
formal letters addressed to the "Treasurer of the Philippines" stating that the questioned
checks "signed by Dr. Lorenzo Ga. Cesar and countersigned by Mr. Reynaldo Bayot are all
valid for encashment by that Office" and stating that "kind consideration on the matter would
be highly appreciated."

Familiarity by lay witnesses with signatures that were never presented to the court and
based on pure recollection arrived at in hindsight some years after the event was the
evidence used to convict the petitioner.

xxx xxx xxx

These unqualified witnesses give only bare opinions and their testimony seldom has but little
if any technical or scientific value. Conflicts of this kind are not serious except when this
merely opinion testimony, by the procedure, or the judge's charge, is given an importance
which it does not deserve. It is a well established principle that the testimony of any subject
that is a mere opinion should always be received with caution, and this rule certainly should
cover the testimony of untrained law witnesses who, without giving reasons, testify as to the
genuineness, or Identity, of disputed handwriting. ... (The Problem of Proof, Osborn pp. 465'
466' 190-191)

The recollection of lay witnesses Del Prado, Samonte, and Vizco on the alleged signatures
of the petitioner on the missing vouchers are not only scanty but they are mere opinions
which must be reviewed with extreme caution. Moreover, coming from two persons who
admittedly typed the fraudulent checks and a co-accused who ordered their preparation all of
whom are understandably interested in exculpating themselves from any possible liability the
testimonies do not deserve the unhesitating and unqualified trust given by the respondent
court. (134 SCRA 126-126). (Emphasis supplied)
The incisive analysis of the prosecution's evidence and the very logical ratiocination made by
Associate Justice Hugo E. Gutierrez, Jr., who penned the decision in the aforementioned case
of Cesar vs. Sandiganbayan, led this Court to agree and declare that there is no basis for a finding
of guilt that the petitioner really signed the vouchers (134 SCRA, on page 124). This conclusion
logically must have to apply with respect to herein petitioner, Reynaldo R. Bayot.

One can reread the records in vain for any fact or circumstance which should distinguish or even
place the evidence adduced against Reynaldo R. Bayot, in a different light from that presented
against Lorenzo Ga. Cesar, considering that the evidence submitted against said two accused are
common in nature and derived from the same set of witnesses.

The semblance of support that is left to the Sandiganbayan's decision hinge solely on the
uncorroborated testimony of a purported handwriting expert who was asked to testify for the
prosecution as a rebuttal witness.

What is, however, paradoxical in this regard is that the testimony of said handwriting expert, Mr.
Segundo Tabayoyong, was not offered by the prosecution in the course of building up its case
against the herein petitioner Bayot, as ordinarily would be so. No explanation can be seen why
Tabayoyong's testimony was belatedly offered.

Petitioner Bayot avers that from the very beginning, he had vigorously questioned and denied the
authenticity of his alleged signatures on the TCAA checks which were presented to him. He is
puzzled why the requests of his lawyers that the subject checks be referred to the PC-CIS laboratory
for examination or signature verification, or by any other foreign forensic expert, were denied by the
NBI investigators. He avers that it was only during the trial that he was able to obtain the checks for
his own verification.

The Court is tempted to surmise that petitioner's requests for verification by the PC-CIS were denied
by the government investigators considering that such an examination could possibly reveal that
Bayot's alleged signatures are forgeries and such disclosure would inevitably embarrass and create
a predicament for the Secretary of Education Juan L. Manuel who had sent formal letters to the
Treasurer of the Philippines certifying that the questioned checks "signed by Dr. Lorenzo Ga. Cesar
and countersigned by Mr. Reynaldo Bayot are all valid for encashment by that office," and further
stating that "kind consideration on the matter would be highly appreciated." Should the signature of
petitioner Bayot (and Cesar) at that point of time be established as forgeries, it would necessarily
follow that Secretary of Education Juan L. Manuel would have to carry also the responsibility and
liability arising from the illegal disbursement.

With this background, the Court is left now to assess the probative value of the respective
testimonies given by two handwriting experts whose findings and conclusions are diametrically
opposite to each other.

In this regard, it would be relevant to consider that this Court went as far as to state as a guiding
rule, in the related case of Cesar vs. Sandiganbayan that,

Where the supposed expert's testimony would constitute the sole ground for conviction and
there is equally convincing expert testimony to the contrary, the constitutional presumption of
innocence must prevail. (134 SCRA, on page 127)

In declining to accept and give credit to the testimony of Mr. Segundo Tabayoyong, this Court took
note of the following:
 He never finished any degree in Criminology. Neither did he obtain any degree in physics or
chemistry. He was a mere trainee in the NBI laboratory. He said he had gone abroad only
once-to Argentina which, according to him is the only country in the world that gives tills
degree (?) ... "People go there where they obtain this sort of degree (?) where they are
authorized to practice examination of questioned documents."

His only civil service eligibility was second grade (general clerical). His present position had
<äre||a nº• 1àw >

to be "re-classffied" "confidential" in order to qualify him to it. He never passed any other
board examination.

He has never authored any book on the subject on which he claimed to be an "expert." Well
he did "write" a so-called pamphlet pretentiously called "Fundamentals of Questioned
Documents Examination and Forgery Detection." In that pamphlet, he mentioned some
references'-(some) are Americans and one I think is a British sir, like in the case of Dr.
Wilson Harrison a British' (he repeated with emphasis). Many of the "theories" contained in
his pamphlet were lifted body and soul from those references, one of them being Alberto
Osborn. His pamphlet has neither quotations nor footnotes, although he was too aware of
the crime committed by many an author called "plagiarism." But that did not deter him, nor
bother him in the least.

He has never been a member of any professional organization of experts in his supposed
field of expertise, because he said there is none locally. Neither is he on an international
level. (1 34 SCRA, on pages 132-133)

What strongly militates against the rendered opinion of prosecution witness Tabayoyong, is that he
admittedly utilized as standard signatures for comparison the signatures of petitioner made in 1973
and 1974, but the questioned signatures were alleged to have been made sometime in 1977. In
refusing to rely on Mr. Tabayoyong, the Court said in the Cesar Sandiganbayan case,

The passage of time and a person's increase in age may have decisive influence in his
writing characteristics. As stated in Testamentaria de la Finada Da. Maria Zuniga vs. Vda. de
Vidal (91 Phil. 126, April 21, 1952), "the closeness or proximity of the time in which the
standard used had been written to that of the suspected signature or document is very
important to bring about an accurate analysis and conclusions." Hence, "... authorities are of
the opinion that in order to bring about an accurate comparison and analysis, the standards
of comparison must be as close as possible in point of time to the suspected signature."
(ibid.) Mr. Tabayoyong explained that he used 1973 to 1975 samples because these were
the only ones furnished him and he was not given the facts and circumstances of the
signatures he was asked to examine. (ibid, on page 133) (Emphasis supplied)

On the other hand, the series of standard signatures of Reynaldo R. Bayot, executed on different
dates in 1975, 1976, 1977 and 1978-as close to the dates of the questioned TCAA checks bearing
the questioned signatures were the ones that were used in the comparison made by the handwriting
expert, Mr. Eduardo Maniwang, who testified for the accused petitioner, Reynaldo R. Bayot.

It will not be amiss to state that petitioner Bayot's document expert, Mr. Eduardo Maniwang was at
one time with the NBI Questioned Section and presently the document expert of the American
Embassy. With the aid of pictorials and magnified photos, he explained his findings and conclusions
that the signatures of petitioner-accused Bayot in the subject TCAA checks are not authentic. Briefly,
his findings read:
 Comparative analysis between the questioned and the exemplars reveals the following
significant differences in handwriting characteristics existing between them.

1. The questioned signatures manifest irregularities in the execution of the strokes

evidencing slow drawing movement; whereas in the exemplars, the strokes of the signatures
are smooth, flowing and rythmic which are the results of natural writing movements.

2. The questioned signatures lack uniformity as shown by their changes in letter designs;
while in the exemplars the main features are harmoniously similar.

3. The ovals in the questioned signatures are either tall and will rounded, while in the
exemplars the same are distinctly and evenly executed.

4. The questioned signatures contain pen lifts and disconnections more apparently observed
at the bases; while in the exemplars the name are continuous as characterized by fluidity of
the strokes.

5. The stem or staff of the letter of feature "R" (2nd) "B" in the questioned signatures are
inclining to the left; whereas in the exemplars, they are comparatively upright.

6. The oval of the letter "y" (or loop) in the questioned "BAYOT" are less distinct then in the
exemplars.

7. The tops of the letter "B" whenever they appear as "M" in the questioned, exhibits their
right shoulders as lower than the left; whereas in the exemplars, the same are comparatively
in the same height or even higher than the left.

8. The loops and ovals of the questioned are distinctly horizontal and more pronounced,
while in the exemplars, the same are comparatively circular.

Moreover, the questioned signatures do not consistently exhibit uniformity in pattern

formations which is unnatural for a particular writer to produce, unlike the uniformity of
patterns produced in the exemplars which were done by a particular writer.' (Exh. 104)
(Rollo, pp. 424-425)

There are other facts more persuasive of a conclusion that petitioner Bayot did not sign the vouchers
and checks in question. No one at all testified to have seen Bayot at the time of the preparation of
the questioned vouchers and checks or that at anytime at all Bayot signed the questioned TCAA
checks.

Indeed, Bayot could not have done so because,

(a) Petitioner accused Bayot had long been out of the government service, since September
1975;

(b) Even before his severance from the government service his authority as auditor of the
Bureau of Public Schools had been withdrawn, effective 2 July, 1975 when Bayot was
reassigned to the BIR and a memorandum to that effect had been circulated (Exh. 2; Rollo,
pp. 417-418);
 (c) The subject check series used, as already mentioned, were released only in 1977, when
Bayot had long been out of the government service since 1975.

It is incomprehensible how Bayot, who was out of the service since 1975, would have been in
possession of the subject checks in 1977. The decision of the Sandiganbayan itself states that it was
Amado Fernandez as superintendent of the Teachers' Camp who caused the typing of the said
checks by seeking the help of the accused Iluminada Vizco. The blank TCAA checks used were said
to have been requisitioned by and were under the custody of Maximiano Huguete, a cashier-
assistant of Iluminada Vizco, the cashier of the MEC Only Amado Fernandez and Joseph Estanislao
encashed the questioned checks. On these undisputed premises, the presumption in law is that
"where one is shown beyond doubt to have used the forged document, it is presumed that he is its
forger." (People of the Phil. vs. Caragao, 30 SCRA 993). Such valid and legal presumption would,
therefore exclude the petitioner Bayot as the author of the forgeries. On the other hand, there is the
fundamental rule of law that a man is rightfully entitled to be presumed innocent. This must apply to
petitioner.

One last word. No where in the case records is it even suggested that petitioner herein had profited
at an from the malversed funds. Except for his alleged signatures on the checks which sufficient
evidence indicate to be forgeries, there is nothing in the records that herein petitioner conspired with
any of those accused before, during, or after commission of the crime charged.

A significant circumstance worth mentioning is that even while these much publicized cases were
pending trial before the Sandiganbayan, petitioner ran as mayor of his town in the January, 1980
elections and was duly elected.

Considering all the foregoing, and there being totally absent any reliable evidence that can support
the conviction of herein petitioner, specially when the evidence presented against him had already
been described by this Court as "woefully inadequate," "conjectural and presumptive," then a verdict
of acquittal, even if only on grounds of reasonable doubt, would be the only proper judgment for this
Court to decree.

WHEREFORE, the petition is hereby GRANTED. The judgment of the respondent Court is
REVERSED and SET ASIDE with respect to the accused-petitioner herein REYNALDO R. BAYOT
and the latter is, therefore ACQUITTED, for lack of proof to sustain his guilt beyond reasonable
doubt.

SO ORDERED.

Teehankee, C.J, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur.

Melencio-Herrera, J., took no part.

Footnotes

1 Variably within the period from April 20, 1977 to October 29, 1977.

2 Either Ernesto de Guzman, Urbane de Guia, Sergio Garcia or Juanita Dalangin.

3 1,244 in all each in the amount of above P9,000 but below P10,000 except 9 checks each
with an amount above P8,000 but below P9,000.

4 the total amount of the 1,244 checks is P12,233,596.40,

5 Variably Central Trading, U-Need Lumber and Construction Supply, Serpent's Marketing,
People's Construction, Session Hardware and Dian Juat General Merchandising.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1656 January 7, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
ROMAN VILO, defendant-appellant.

Felix D. Agcaoili for appellant.

Assistant Solicitor General Manuel P. Barcelona and Solicitor Martiniano P. Vivo for appellee.

PARAS, J.:

This is an appeal from a judgment of the People's Court convicting the appellant, Roman Vilo, of the
complex crime of treason with murder and imposing upon him the death penalty and a fine of
P10,000 with costs.

Appellant's attorney de oficio admits that the People's Court correctly found the appellant guilty of
the following overt acts: (1). The apprehensions and torture on April 15, 1944, Carcar, Cebu, of
Amando Satorre, Ireneo Medel, Maximo Satorre and Eusebio Rezada, and the killing of Mando
Satorre, all due to their connection with the resistance movement. (2). The apprehensions on April
15, 1944, in Carcar, Cebu, of Laureano Raponoya, suspected guerrilla member, and his delivery to
the Japanese who tortured him. (3). The apprehension, torture and killing of one Segundo in March,
1944, in Pinamungahan, Cebu, because the latter was a guerrilla volunteer guard. And the only plea
invoked in behalf of the appellant is that he acted under duress.

In support of this plea, it is alleged that on March 25, 1942, the appellant was inducted into the
USAFFE organization; that after four months he was arrested, with forty-two others, by the Japanese
who tortured them, as a result of which the appellant was hospitalized for two months; that he was
thereafter made to join the puppet Philippine Constabulary, with station at different places in the
Province of Cebu. Even if these allegation are true, they are not sufficient to show that, when the
appellant committed the acts imputed to him, he was acting under any apparent threat of harm from
the Japanese, much less from any Filipino superiors. That the appellant had previously been
arrested or made to join the Constabulary, did not amount to an order to our threat upon him, leaving
him without any choice other than to perform the specific acts of which he was convicted, especially
when the specific acts of which said acts took place about two years after appellant's alleged torture
by the Japanese. Moreover, the way the appellant killed his victims — by bayoneting them and by
further slashing the knees of one so as to make the latter's body fit into his grave, — is rather
inconsistent with the attitude of one who might have acted reluctantly and under compulsion.

Upon the other hand, it is admitted in the brief for the prosecution that the count regarding the arrest
by the necessary two witnesses. Even so, the other two counts warrant appellant's conviction.
Adherence to the enemy is of course deducible from appellant's overt acts, particularly from the
circumstances that all those apprehended, tortured and killed were members of or suspected of
having connection with the guerrilla movement.

The People's Court, however, erred in the classifying the crime as treason with murder. The killing of
Amando Satorre and one Segundo is charged as an element of treason, and it therefore "becomes
identified with the latter crime and cannot be the subject of a separate punishment, or used in
combination with treason to increase the penalty as article 48 of the Revised Penal Code provided."
(People vs. Prieto, L-399, 45 Off. Gaz., 3329.1 See also People vs. Labra, L-386, 46 Off. Gaz. [Supp.
to No. 1], 159)2, This notwithstanding, the death penalty is still imposable upon the appellant in view
of the presence of two proven aggravating circumstances, namely armed band and the use of torture
and other atrocities on the victim, Instead of the usual and less painful method of execution; but on
the ground presently to be stated, said penalty necessarily has to be lowered to reclusion perpetua.

Eight Justice, including the writer of this opinion, believe that the appellant merits the death penalty,
but one Justice disagree. Under article 47 of the Revised Penal Code, which provides that the death
penalty shall not be imposed when all the Justices are not unanimous in their voting as to the
property of the imposition of the death penalty, the penalty of death cannot be imposed upon the
appellant. The Judiciary Act of 1948 (No. 296), approved on June 17, 1948, however, provides that
"whenever the judgment of the lower court imposes the death penalty, the case shall be determined
by eight Justices of Court," and that, "when eight Justices fail to reach a decision as herein provided,
the penalty next lower in degree than the death penalty shall be imposed" (section 9), with the result
that under this legal provision the death penalty is impossible as long as there are eight Justices
voting therefore. The majority of this Court are of the opinion that the new law may be given
retroactive effect so as to cover the case at bar involving an offense committed prior to the
enactment of the Judiciary Act of 1948. They argue that the matter referring to the number of
Justices necessary for the imposition of the death penalty is merely one of procedure, and that
unanimity was previously required in view merely of the small composition of this Court, — a person
that has ceased to exist because there are now eleven Justices.

The writer hereof believes, upon the other hand, that the new law should not be given retroactive
effect if it is not be to ex post facto. After the inclusion of the provisions of article 46 in Revised Penal
Code, no, accused could be sentenced to death except when there was unanimity among the
Justices as to the propriety of the penalty; and this requisite correspondingly accorded the accused a
substantive right. It is plain, and therefore easy to see, that there can be no more substantive legal
provision than that which determines the question whether or not an accused will be sentenced to
death. The provision can indeed de likened to that referring to mitigating or aggravating
circumstances upon which the proper period of the penalty prescribed by the Revised Penal Code is
dependent. In my opinion, article 47 required unanimity in order to give the assurance that, when a
death sentence is meted out, there can absolutely be no room for any doubt as to the propriety of
the penalty, implied from the absence of any dissent. The following may be cited in support of the
theory of the writer of this opinion:

The crime in question was committed prior to the enforcement of Act No. 1773 of the
Philippine Commission, which went into effect on the 11th of October 1907. Although the
complaint was filed by the fiscal on the 18th of January, 1908, it is not lawful; to attribute
retroactive effect to the said Act of the Philippine Commission for the reason that, even
though it refers to a matter of procedure, it does not contain any clauses making it retroactive
in its effects, and furthermore, the provisions thereof if applied now are prejudicial to the
accused.

Hence, in view of the terms of the aforesaid article 433 of the Penal Code, the proceedings
instituted by virtue of the complaint file by the fiscal can not be sustained, as they were
brought without the necessary previous complaint of the aggrieved husband, and in violation
of the criminal law; therefore, the said proceedings, together with the judgment rendered
therein, are decidedly null and void. (U. S. vs. Gomez and Coronel, 22 Phil., 279, 282- 283.)
To give effect to the view that the Judiciary Act of 1948, should be given only prospective
application, the writer hereof is constrained to switch his vote to the imposition of reclusion
perpetua upon the appellant who otherwise should have deserved the penalty of death.

With the modification that the appellant is sentenced to reclusion perpetua, the appealed judgment is
affirmed.

So ordered with costs.

Pablo, Briones, and Tuason, JJ., concur.

Moran, C. J., Bengzon, and Montemayor JJ., concur in the result.

Separate Opinions

PERFECTO, J., concurring and dissenting:

We concur in the findings of fact made, and in the result of the decision penned, by Mr. Justice
Paras.

We also agree with his view that the provision in section 9 of Republic Act No. 296 (known as the
Judiciary Act of 1948) regarding the required number of votes for the imposition of the death penalty,
has no, and cam never have, retroactive effect. Otherwise, it would be ex post facto and, therefore,
violative of one of the express prohibitions of the Constitution.

We dissent, however, from the pronouncement in the decision to the effect this because appellant
committed the crime with the aid of an armed hand and with torture two aggravating circumstances
should be considered against him. We are of opinion that the two circumstances just mentioned
should not be considered as modifying circumstances but as essential elements of the treason
committed by appellant, following the doctrine laid down in our decision in People vs. Victoria, (44
Off. Gaz., [7] 22301). We may take judicial notice of the fact, borne out by almost all the many
treason cases we have considered and decided, that those who committed such a crime used to
follow the pattern set by the Japanese in their campaign for the brutal suppression of guerrillas and
other members of the resistance movement, — and the aid of armed bands and employment of
torture are among the characteristics elements of said pattern.

FERIA, J., dissenting:

I dissent from the decision which, in its pertinent part reads as follows:

The People's Court, however, erred in classifying the crime as treason with murder, The
killing of Amando Satorre and one Segundo is charged as an element of treason, and it
therefore "becomes identified with the latter crime and cannot be the subject of a separate
punishment, or used in combination with treason to increase the penalty as article 48 of the
Revised Penal Code provides." (People vs. Prieto, L- 399, 45 Off Gaz., 3329.2 See,
also People vs, Labra, L-884, 46 Off Gaz., [Supp. to No. 1], 159.)3 This notwithstanding, the
 death penalty is still imposable upon the appellant in view of the presence of two proven
aggravating circumstances, namely, armed band and the use of torture and other atrocities
on the victims instead of the usual and less painful method of execution; but on the ground
presently to be stated, said penalty necessarily has to be lowered to reclusion perpetua.

Eight Justices, including the write of this opinion, believe that the appellant merits the death
penalty, but one Justice disagrees. Under article 47 of the Revised Penal Code. which
provides that the death penalty shall not be imposed when all the Justices are unanimous in
their voting as to the propriety of the imposition of the death penalty, the penalty of death
cannot be imposed upon the appellant. The Judiciary Act of 1948 (No. 296), approved on
June 17, 1948, however, provides that "whenever, the case shall be determined by eight
Justices of the Court," that case shall be determined by eight Justices of the Court," and that,
"when eight Justices fail to reach a decision as herein provided, the penalty next lower in
degree than the death penalty shall be imposed" (sec. 9), with the result that under this legal
provision the death penalty is imposable as long as there are eight Justices voting thereof.
The majority of this Court are of the opinion that the new may be given retroactive effect so
as to cover the case at bar involving an offense committed prior to the enactment of the
Judiciary Act of 1948.

The writer hereof believe, upon the other hand, that the new law should not be given
retroactive effect if it is not to be ex post facto. After the inclusion the of the provisions of
article 47 in the Revised Penal Code, no accused could be sentenced to death except when
there was unanimity among the Justice as to the property of the penalty; and this requisite
correspondingly accorded the accused a substantive right. .

xxx xxx xxx

To give effect to the view that this Judiciary Act of 1948, should be given only prospective
application, the writer hereof is constrained to switch his vote to the imposition of reclusion
perpetua upon the appellant who otherwise should have deserved the penalty of death.

With the modification that the appellant is sentenced to reclusion perpetua, the appealed
judgment is affirmed. So ordered with costs.

Before the deliberations of the case at bar, and for the purpose of applying the decision of this Court
or the majority thereof to cases coming up to us on appeal or for revision after the approval of the
Judiciary Act of 1948. On June 17, 1948, we have discussed and the majority of this Supreme Court
has arrived at the conclusion and resolved that section 9 of said Act providing that "whenever the
judgment of the lower court imposes the death penalty, the case shall be determined by eight Justice
of the Court. when eight Justice fail to reach a decision as herein provided, the penalty next lower in
degree than the death penalty shall be imposed," is applicable to criminal cases pending at the time
the Judiciary Act was enacted although the crime had been committed prior thereto, because said
provision is procedural in character, and the application thereof to crimes committed before the
promulgation of said Act would not make the law unconstitutional or ex post facto, in accordance
with the almost unanimous decision of the courts of last resort in the States of the Union, after the
Constitutions of which ours is patterned.

It is well settled that a law is said to be ex post facto when it penalizes as a public offense an act
which was not at the time of its commission; when it aggravates or makes a crime greater than it
was when committed; when it changes the punishment and inflicts a greater on than the law
annexed to the offense when committed, and when it alters the rules of evidence, and requires less
testimony or evidence than the law required at the time of the commission of the offense, order to
make the conviction more easy: in short, when the law, in relation to the offense and its
consequences, alters the situation of a party to his advantages. (11 Am. Jur., section 348).

But it is also firmly established that the prohibition as to the passage of ex post facto laws has no
application to changes which relate exclusively to the remedy or modes of procedure, for a person
has no vested right in any particular remedy. and can not insist on the application to the trial of his
case of any other than the existing rules of procedure. So a change in the law requiring the jury
instead of the court to fix the punishment, as well, one which makes the court instead of the jury
judge of the law, and a law that makes changes as to the number of judges not unconstitutional as
being ex post facto. (11 Am. Jur., section 357, 361).

In the case of Marion vs,. State, 20, Neb., 233; 29 N.W., 91; 57 Am. Rep., 825, it was held that
"under the principle permitting the substitution of law, the legislature may repeal provisions existing
at the time of the commission of an offense which direct that juries shall be judges of the law as well
as of the facts, and may require that all question of law shall, following such repeal, be tried by the
judge." In re Com. vs. Phelps, 210 Mass., 78; 96 N. C., 346; 37 L.R.A. (N.S.), 567, the Court held
that a statue providing that capital cases may be tried before one judge, instead of two or more as
therefore, is not ex post facto as applied to a prior offense, though it leaves matters of discretion for
decision by one presiding judge, where prior thereto such matters were decided by two or more
judges." And the Supreme Court of the United States in the case of Duncan vs. Missouri,152 U. S.,
377; 38 Law. ed., 485; 14 S. Ct., 570, laid down the ruling that "a statute dividing the Supreme Court
of a state into divisions, whereby a person convicted can have a review of his conviction by only part
of the judges who constituted the appellate court when the crime was committed, is not an ex post
facto law."

The question involved in the present case is substantially identical to that of a law which after the
commission of an offense, changes the previous one by decreasing the number of judges who shall
preside and decide the case, whereby instead of the old law which required several judges to concur
in the decision, the new law only requires one or less number of judges to decide and convict the
defendant or of a law which divides the Supreme Court into divisions after the commission of an
offense whereby the defendant will have a review of his conviction by only a part of the Justices who
constituted the appellate court when the crime was committed.

There is nothing wrong in that the writer of the decision has to state therein that he is one of the
Justice who dissented from the opinion of the majority, in a resolution previously adopted by this
Court, and his reasons to justify his dissenting opinion; but what is wrong is that, notwithstanding the
opinion of this Court or the majority as to applicability of the above quoted provision of section 9 of
the Judiciary Act of 1948 to cases like the present, because said provision requires only the
concurrence of eight Justices for the imposition of death penalty, and according to the decision,
"eight Justices, including the writer of this opinion believe that the appellant merits the death
penalty," the writer of the decision "switches his vote for the imposition of reclusion perpetua upon
the defendant," for the purpose of defeating or thwarting the decision of the majority of this Court,
which everybody, from the humblest citizen to the highest magistrate of the nation, must respect in
accordance with the express mandate of the Constitution, alleging as reason for doing so that the
death penalty cannot be imposed, because one of the nine Justices dissented, and the new law
should not be given a retroactive effect according to his dissenting opinion.

In the history of the Philippine judiciary, particularly of this Supreme Court, there have been case in
which a Justice who had dissented from the opinion of the majority on the resolution of a legal
question, had to act in accordance with the opinion of the majority, out of respect to it, in the
resolution of subsequent cases reserving or without waiving his own opinion. But there has not been,
up to the present, a case in which in a single Justice has so insisted as to make his dissenting
opinion prevail over the decision of the majority, as to defeat or thwart said decision on the same
case.

As on of those who are of the opinion the provision of section 9 of the new Judiciary Act, which
superseded the article 47 of the Revised Penal Code by reducing to eight the number of Justices of
this Court as the majority required for the imposition of death penalty, because to concur even in the
result of dispositive part thereof, would be tantamount to concurring with the write of the decision in
the nonapplicability to the present case of the said provisions of section 9 of the New Judiciary Act,
for the writer of the decision does not disagree with the other seven Justices in that "the death
penalty is still imposable upon the appellant in view of the presence of two proven aggravating
circumstances, namely, armed band and the use of torture and other atrocities on the victims,
instead of the usual and less painful method of execution; but on the ground presently to be stated,
said penalty necessarily has to be lowered to reclusion perpetua," that, is, although "eight Justices,
including the writer of this opinion, believe that the appellant merits the death penalty," as one of the
none Justices disagrees, "under article 47 of the Revised Penal Code which provides that the death
penalty shall not be imposed when all the Justices are not unanimous in their voting as to the
propriety of the imposition of the death penalty, the penalty of death can not be imposed upon the
appellant," and for that reason he "is constrained to switch his vote to the imposition of reclusion
perpetua upon the appellant who otherwise should have deserved the penalty of death." Inasmuch
as eight Justices, including the writer of the decision, are of the opinion that the death penalty is
"imposable upon the appellant in view of the presence of two aggravating circumstances" or "believe
that the appellant merits the death penalty," under the provisions of section 9 of the Judiciary Act of
1948, as construed finally by this Court by the votes of the majority of its members before the
deliberation of the case at bar, the death penalty must be imposed although one of the nine Justices
taking part in the consideration and adjudication of the case dissents from the judgment.

The fact that the writer of the decision has dissented from the majority who have held that the above
quoted provisions of section 9 of the new Judiciary Act, and not article 47 of the Revised Penal
Code, is applicable to cases like the present, does not authorize him to go against or nullify the
result of the deliberation and conclusion reached by the eight Justices including him, on the propriety
of the imposition of the death penalty upon the appellant. He can do so only if he dissents form the
conclusion that the commission of the offense at bar was attended by mitigating and not by any
aggravating and therefore death penalty can not be imposed.

The dissenting opinion or vote referred or alluded to in article 47 of the Revised Penal Code and
section 9 of the Judiciary Act above quoted, is one based on the ground that, according to the
offense charged and the evidenced as well as the provisions of Chapter IV of the Revised Penal
Code on the application of penalties, and in view of the circumstances attending the commission
thereof, death penalty can not be imposed upon the defendant or appellant. This Court having
already and finally decided, prior to the deliberation of this case, that section 9 of the new Judiciary
Act is applicable to pending cases for offenses committed prior to the promulgation thereof, the
writer of the decision can not, legally and properly, reiterate in the present case his dissenting
opinion on that question already decided by this Court, and much less consider it as, or legal factor
for, lowering to reclusion perpetua the death penalty that he himself believes imposable upon the
appellant or the latter deserves, in view of the two aggravating circumstances which attended the
commission of the crime of treason of which the appellant is decreed guilty. He can not do so
because that question is no longer an open but a closed one by virtue of the principle of stare
decisis, and it cannot be properly raised by a member of this Court, and become involved in the
present case, for the purpose of determining the propriety of the imposition of the death penalty
upon the appellant. The vote of the writer of the decision for the imposition of cadena
perpetua should therefore be considered as of no effect to change his opinion that the appellant
deserves the death penalty, and that this penalty is imposable upon the appellant with the
concurrence of seven other Justices.
Only the vote of the majority of the members of this Court is required to declare that the last
paragraph of section 9, Judiciary Act of 1948, is applicable to cases for offenses committed prior to
the date said Act became effective, for it is not a case of declaring a law unconstitutional, and said
decision must be respected by everybody, specially by members of this Court. To support the theory
of the writer of the decision in the present case would be subversive to the conclusiveness of this
Court's decisions unless and until it is reconsidered and reversed, for any one of the dissenters, like
the writer of the decision, might render said decision opinion on the applicability of said section 9 in a
clear case in which his vote is necessary for the imposition of the death penalty.

In view of all the foregoing, the death penalty must be considered as imposed upon the appellant,
and therefore the judgment of the lower court imposing said penalty must be affirmed, with costs. So
ordered.

Footnotes

1
80 Phil., 138.

2
81 Phil., 377.

FERIA, J., dissenting:

1
78 Phil., 122.

2
80 Phil. 138.

3
81 Phil. 377.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

PEOPLE OF THE PHILIPPINES, petitioner,

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

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

1
Act, which outlaws the Communist Party of the Philippines and other "subversive associations," and
punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or
remains a member" of the Party or of any other similar "subversive" organization.

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

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

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

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:
 (a) That the crime has been committed in contempt of or with insult to public
authorities;

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

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

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

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

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

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

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.
 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the

offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

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

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

II. Is the Act a Bill of Attainder?

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

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

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar

governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.

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

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

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

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

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

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

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

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

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

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

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

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

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

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

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25

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

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

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

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

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

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

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

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

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.
 ... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.

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

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

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

III. The Act and the Requirements of Due Process

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

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
 ... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

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

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

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

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

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

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

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

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

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

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

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

Membership in an organization renders aid and encouragement to the organization;

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

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

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

IV. The Act and the Guaranty of Free Expression

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

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

Whoever organizes or helps or attempts to organize anysociety, group, or assembly

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

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

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

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

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

V. The Act and its Title

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

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

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
purpose of placing such Government or political subdivisionunder the control and
domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..

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

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize

the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

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

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

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.

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

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

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

Makasiar and Antonio, JJ., took no part.

Separate Opinions

FERNANDO, J., dissenting:

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

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

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

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

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

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

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

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

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

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

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

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

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

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so
for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for
me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world —
ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the use of force by
Government to make allthe beliefs and opinions of the people fit into a commonmold on any single
subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness. The creation of
publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of
our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies,
played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation
of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act
aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a
foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government.
The Communist Party hasnever been more than a small group in this country. Andits numbers had been
dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was
because a vast majority of the Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to
follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut
withheld any power to punish people for nothing morethan advocacy of their views." 27

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

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

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

Separate Opinions

FERNANDO, J., dissenting:

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

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to
named individuals or easilyascertainable members of a group in such a way as to inflicton them
punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

"AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND

SIMILAR ASSOCIATIONS PENALIZING MEMBERSHIP THEREIN, AND FOR
OTHER PURPOSES.

"WHEREAS, the Communist Party of the Philippines, although purportedly a political

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

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

"WHEREAS, in the face of the organized, systematic and persistent subversion,

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

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

Congress assembled:

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

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

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

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

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

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

"Section 7. No person shall be convicted of any of the offenses penalized herein

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

"Section 9. Nothing in this Act shall be interpreted as a restriction to freedom of

thought, of assembly and of association for purposes not contrary to law as
guaranteed by the Constitution.

"Approved, June 20, 1957."

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

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

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

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

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

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

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

5 Chief Justice Warren referred to the Bill of Attainder Chause as an implementation

of the separation of powers, "a general safeguard against legislative exercise of
judicial function, or more simply, trial by legislature." United States vs. Brown, 381
U.S. 437 (1964).

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

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

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

9 C. Antieu, supra note 8 at 423.

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

"In determining whether legislation which bases a disqualification on the happening

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

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

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

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

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

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

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

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

18 Repealed by Rep. Act 4241.

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

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

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

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

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

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

25 The Bounds of Legislative Specification: A Suggested Approach to the Bill of

Attainder Clause, 72 Yale L. J. 330, 351-54(1962).

26 278 U.S. 63 (1928).

27 Id. at 75-77.

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

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

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

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

32 341 U.S. 716 (1951).

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

34 Sec. 8.

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

36 Freund, Review of Facts in Constitutional Cases, in Supreme Court and Supreme

Law 47-48 (Cahn ed. 1954).

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

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

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

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

41 Id. at 501.

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

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

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

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

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

47 367 U.S. 203 (1961).

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

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

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

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

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

FERNANDO, J., concurring:

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

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

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

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

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

6 4 Wall. 277 (1867).

7 4 Wall. 333 (1867).

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

9 4 Wall. 277 (1867).

10 Ibid, 323, 325.

11 4 Wall. 333 (1867).

12 Ibid, 377-378.

13 328 US 303.

14 Ibid, 315-316.

15 381 US 437.

16 Ibid, 442.

17 Ibid, 449-450.

18 367 US 1 (1961).

19 Ibid, 86-87.

20 Opinion of the Court, p. 15.

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

22 Jefferson's First Instance Address, March 4, 1801, in Padover, ed., The Complete
Jefferson, 385 (1943).
23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).

24 Gonzalez v. Commission on Elections, 27 SCRA 835,871(1969) citing Shelton v.

Tucker, 364 US 479 (1960) and NAACP v. Button, 371 US 415 (1963).

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

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

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-61355 February 18, 1983

MAXIMO G. RODRIGUEZ, petitioner,

vs.
THE HON. SANDIGANBAYAN, Second Division, THE PEOPLE OF THE PHILIPPINES, herein
represented by the HON. TANOD-BAYAN and ATTY. DIGNO A. ROA, respondents.

Maximo Rodriguez in his own behalf.

The Solicitor General for respondents.

ESCOLIN, J.:

Petition for certiorari and prohibition with prayer for pre injunction to declare the Sandiganbayan
without jurisdiction over Criminal Case No. 3693, entitled, "People of the Philippines versus Maximo
G. Rodriguez",petitioner advancing as grounds therefor: (1) the ex post facto character of
Presidential Decree No. 1606 creating the Sandiganbayan and (2) the exclusive jurisdiction of the
regular courts of first instance over the offense alleged in the Information. Petitioner further assails
the validity of the Information filed by the Tanodbayan in said case for alleged failure on the part of
the latter to conduct a proper preliminary investigation, in violation of petitioner's fundamental right to
due process as wen as Republic Act No. 5180, as amended by Presidential Decree No. 77 and 911.

On January 24, 1964, petitioner Maximo G. Rodriguez was appointed provincial fiscal of the
Province of Misamis Oriental with official station at Cagayan de Oro city. On September 23, 1975
following the acceptance by the President of the Philippines of the courtesy resignation of the
Register of Deeds of Misamis Oriental, petitioner was designated as Ex-Officio Register of Deeds of
Misamis Oriental and Cagayan de Oro City.

On October 13, 1977, respondent Digno A. Roa filed an affidavit-complaint before the Office of the
City Fiscal of Cagayan de Oro, docketed as Criminal Case No. I.S. 15247, charging petitioner with
the crimes of estafa, falsification and usurpation of public functions. A subpoena was issued to
petitioner on November 2, 1977, and on November 11, 1977, petitioner submitted his counter-
affidavit to the City Fiscal.

On March 20, 21, and 22, 1978, State Prosecutor Lilia Lopez, who had been assigned by the
Ministry of Justice to assist the City Fiscal of Cagayan de Oro in the said case, conducted a lengthy
preliminary investigation. Barely two month later, on May 1, 1978, petitioner was separated from the
service by reason of the acceptance by the President of the Philippines of his letter of resignation
dated October 10, 1972.

On December 12, 1978, State Prosecutor Lopez issued a resolution finding petitioner, together with
Isidro Udang and Josefa Ebora Pacardo, "probably guilty of estafa thru falsification." However,
before this resolution could be approved by the then Undersecretary of Justice Catalino Macaraig,
Jr., the Office of the Tanodbayan was created and the entire records of the case were transferred to
it. The case was referred to Tanodbayan Prosecutor Francisco P. Rabanes, who, on February 25,
1980, issued a subpoena to petitioner, setting the case for another preliminary investigation. In
response, petitioner asked Rabanes to just consider in said proceedings the counter-affidavit he had
earlier submitted to the City Fiscal of Cagayan de Oro. Thus, on the basis of the records, Rabanes
issued a resolution, dated June 18, 1980, recommending dismissal of Criminal Case No. I.S. 15247
for lack of probable cause.

After the Rabanes resolution had been forwarded to the Tanodbayan for review, Tanodbayan Legal
Officer Cesar Mindaro, after reviewing the records, came out with a recommendation to the
Tanodbayan Prosecution and Investigation Office that the Rabanes resolution be set aside and that
said office be directed to cause the filing of an information against petitioner for violation of Sec. 3[e]
of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. In a
Memorandum dated October 1, 1980, addressed to the Hon. Vicente G. Ericta, then Tanodbayan,
the Tanodbayan Prosecution and Investigation Office, thru Prosecutor Florencio Ruiz, Jr., approved
Mindaro's recommendation with the additional suggestion, to wit:

However, considering that the basic complaint (affidavit of Digno A. Roa, dated
October 11, 1977) specifically charged Maximino G. Rodriguez, Rosalio Pacardo,
Josefa Ebora Pacardo and three (3) Does with violations of Articles 316, paragraph
1, and 237, in relation to Art. 171, paragraph 4 all of the Revised Penal Code, it
would be in keeping with the fundamental principles of fair play [cf: Bandiola v. CFI of
Misamis Oriental, 35 SCRA] if a new preliminary investigation focused on the proper
charge under Section 3[e] of the Anti-Graft and Corrupt Practices Act [R.A. 3019] be
conducted.

In compliance with the above cited recommendation, a team of special prosecutors was created,
headed by Legal Officer Cesar Mindaro. Another subpoena dated October 3, 1980 was issued to
petitioner requiring him to appear "in the Office of the City Fiscal of Cagayan de Oro City, on October
20, 1980 and thereafter until the investigation is finished." The subpoena was hand-carried to
Cagayan de Oro City and on October 15, 1980 was served upon petitioner's wife, Martha B.
Rodriguez, in the absence of petitioner who was then in Catarman Northern Samar Hospital
attending to his sick mother, and who, on October 19, 1980, proceeded directly to Manila for an
appearance before the Court of Appeals as counsel for one Dr. Julio Ruiz.

In the resolution signed by Special Prosecutors Carlos D. Montemayor and Cesar J. Mindaro, dated
August 17, 1981, it appears that the preliminary investigation on the new charge against petitioner
was conducted from October 19-25, 1981 at the appointed place.

While petitioner himself was absent during said proceedings, his law partner, Atty. Alberto Martinez,
as well as his son, the Hon. Rufus Rodriquez of the Provincial Board of Misamis Oriental, were
present and they actively participated therein by examining the complainant and his witnesses.

Petitioner, however, denied the representative character of the appearance of his law partner and
his son before the investigating body, arguing that he could not have possibly authorized them to act
in his behalf as he himself was unaware of the holding of said preliminary investigation. He further
disputed the number of days during which the preliminary investigation was reported to have been
conducted for the reason that upon his return to Cagayan de Oro from Manila on October 23, 1980,
he immediately proceeded to the Fiscal's Office only to discover that the investigating body had
already left for Manila. Thus, on October 29, 1980, petitioner went to Manila to file his memorandum
and to argue or any before the Tanodbayan team of special prosecutors.
On August 17, 1981, the investigating team issued a resolution directing the filing of an Information
against petitioner and Josefa Ebora Pacardo before the Sandiganbayan for violation of Sec. 3[e] of
the Anti-Graft and Corrupt Practices Act. Petitioner filed a motion for reconsideration of this
resolution, but the same was denied. The Information was finally filed before the Sandiganbayan on
September 9, 1981.

On November 25, 1981, petitioner filed a motion to quash the Information, which was opposed by
the prosecution. On December 11, 1981, petitioner was arraigned. He entered a plea of not guilty,
without prejudice to the resolution of his pending motion to quash. On April 16, 1982, the
Sandiganbayan, Second Division, denied the motion to quash. His motion for reconsideration of May
17, 1982 having been likewise rejected, petitioner now seeks relief from this Court.

The fallacy in characterizing Presidential Decree No. 1606 as an ex-post facto law in so far as the
statutory right of recourse to the Court of Appeals is denied petitioner, has been exhibited by Chief
Justice Fernando in the case of Nuñez v. Sandiganbayan 1, reiterated in De Guzman v. People of the
Philippines and the Sandiganbayan, G.R. No. L-54288, December 15, 1982. It was there expounded that:

The test as to whether the ex-post facto clause is disregarded, in the language of
Justice Harlan in the just-cited Thompson V. Utah decision taking from an accused
any right that was regarded, at the tune of the adoption of the constitution as vital for
the protection of life and liberty, and which he enjoyed at the time of the commission
of the offense charged against him.' The crucial words are "vital for the protection of
life and liberty," of a defendant in a criminal case. Would the ommission of the Court
of Appeals as an intermediate tribunal deprive petitioner of a right vital to the
protection of his liberty? The answer must be in the negative. In the first place, his
innocence or guilt is passed upon by the three-judge court of a division of respondent
court. Moreover, a unanimous vote is required, fairing which, "the Presiding Judge
shall designate two other justices from among members of the Court to sit
temporarily with them, forming a division of five justices, and the concurrence of a
majority of such division shall be necessary for rendering judgment." Then if
convicted, this Court has the duty if he seeks a review to see whether any error of
law was committed to justify a reversal of the judgment. Petitioner makes much,
perhaps excessively so as is the wont of advocates, of the fact that there is no review
of the facts. What cannot be sufficiently stressed is that this Court in determining
whether or not to give due course to the petition for review must be convinced that
the constitutional presumption of innocence has been overcome. In the sense, it
cannot be said that on the appellate level there is no way of scrutinizing whether the
quantum of evidence required for a finding of guilt has been satisfied. The standard
as to when there is proof of such weight to justify a conviction is set forth in People v.
Dramayo.

Petitioner's view that "based on the standpoint of territorial jurisdiction, the Sandiganbayan is a
National Court with station in the City of Manila, and therefore, the tremendous expenses to be
incurred by the petitioner and his witnesses in coming back and forth to the City of Manila are factors
that are really prejudicial to the petitioner." This Court is fully aware of the harsh reality that
expenses are a necessary evil in the prosecution or defense of a suit. But the fact alone that a
person may, by circumstances, be put to a greater expense in defending his cause in court of justice
cannot justify the categorization of P-1606 as an ex-post facto legislation. For as petitioner himself
pointed out:

It is now well-settled that statutory changes in the mode of trial or the rules of
evidence, which do not deprive the accused of a defense and which operate only in a
 limited and unsubstantial manner to his disadvantage, are not prohibited. [Beazall v.
Ohio, 269 U.S. 167, 170 (1925)].

Petitioner further advances the theme that since the allegations in the Information define an offense
punishable under Sections 117 and 119 of the Land Registration Act [Act No. 4961, the proper forum
for its prosecution is the regular court of first instance, specifically the Court of First Instance of
Misamis Oriental, as provided in Section 118 of said Act 496.

The argument is bereft of merit. The Information [Annex "A", p. 26, Rollo] in Criminal Case No. 3693
reads as follows:

That on or about August, 1977 or for sometime prior or subsequent thereto in the
City of Cagayan de Oro, Misamis Oriental, Philippines, the accused Maximo G.
Rodriguez, a public officer having been appointed and qualified as Provincial Fiscal
of Misamis Oriental and at the same time was the Ex-Officio Register of Deeds of
Cagayan de Oro City, conspiring and confederating with Josefa E. Pacardo, a private
individual, and mutually helping each other did then and there wilfully, unlawfully and
feloniously through manifest partiality, evident bad faith and/or gross inexcusable
negligence issued TCT No. T-24213-A in favor of his co-accused Josefa E. Pacardo
without petition from the registrant for segregation and without any subdivision plan
as required by Section 44 of the Land Registration Act and while it appears in T.C.T.
No. 24213-A that the same is a transfer from Subdivision Original Certificate of Title
No. P-47 the same was not recorded in the Original Certificate of Title, giving the
impression that TCT No. 24213-A was not derived from Title No. P-47 likewise fairing
to carry over the encumbrances appearing in the old title further he issued the title to
his co-accused immediately thereafter while issuing that of Digno Roa a month later,
or more particularly only on August 11, 1977, as a consequence thereof his co-
accused was able to sell to one Wilson Gaw, portions of the land covered by Original
TCT No. P-47 thereby causing undue injury to Digno Roa and giving unwarranted
benefit to his co-accused Josefa E. Pacarda.

The phraseology of the above-quoted information leaves no doubt whatsoever that petitioner is
being charged with a violation of Section 3[e] of the Anti-Graft and Corrupt Practices Act, in that as a
public officer, he allegedly committed an act "causing any undue injury to any party, including the
government, or giving any private party any unwarranted benefits, or preference in the discharge of
his administrative or judicial functions thru manifest partiality, evident bad faith or gross inexcusable
negligence ..." [Sec. 3(e), R.A. 3019]. Under P.D. 1606, it is the Sandiganbayan that is vested with
original and exclusive jurisdiction over this offense in accordance with Section 4 thereof to wit:

Sec. 4. Jurisdiction. — The Sandiganbayan shall have jurisdiction over:

[a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, and Republic Act No. 1379.

Thus, as pointed out by the respondent court in upholding its jurisdiction over Criminal Case No.
3693,

The fact that the Information contains allegations which accused [referring to
petitioner] contends are recitals of facts constituting violation of Sec. 44 of Art. [sic]
496 is neither decisive nor controlling, since the same allegations also constitute a
corrupt practice within the purview of Sec. 3, par. [e] of the Anti-Graft Law, which
declares unlawful, certain acts or omissions of public officers, in addition to those
 already penalized by existing laws including the provisions of the Land Registration
Act. (Resolution dated July 8, 1982, of the Sandiganbayan, Second Division, p. 128,
Rollo).

Petitioner would characterize the information in Criminal Case No. 3693 as a patent nullity for
alleged failure of the Tanodbayan Team of Special Prosecutors to conduct a proper preliminary
investigation. It is contended that the irregularities committed in the conduct of the preliminary
investigation had divested the Tanodbayan of any authority to file the challenged information.

Petitioner's thesis is untenable. The information in question contains the following certification 2 by
Special Prosecutor Christina J. Corral-Paterno —

Preliminary investigation has been conducted in this case; that the complainant and
his witnesses have been examined; that the accused were given an opportunity to
submit controverting evidence; that on the basis of the sworn statements and other
evidence submitted, there is reasonable ground to believe that the offense charged
has been committed and that the accused are probably guilty thereof.

In the absence of clear and convincing evidence to the contrary, We accord credence to this
certification in accordance with the presumption that "official duty has been regularly performed."

The account of what transpired during the preliminary investigation, as reflected on the records,
strengthens, rather than destroys, this presumption. It is not disputed that a subpoena dated October
3, 1980 was sent to petitioner and, as admitted by petitioner himself, said subpoena was received by
his wife, Martha B. Rodriguez, on October 15, 1980. The records likewise disclose that, although
petitioner himself was absent during the preliminary investigation, he was represented by his law
partner, Atty. Alberto Martinez, and his son, Rufus, who actively participated in the proceedings by
examining the complainant and his witnesses. And while petitioner denies the representative
character of their appearance, it appears that petitioner had not only submitted a memorandum to
the Tanodbayan but had in fact ventilated his arguments at a hearing before said body. Thus,
petitioner had more than ample opportunity to be heard, and as he, in fact, had heard, he cannot
now claim denial of due process.

It is also significant to note that P.D. 911 which petitioner claims to have been violated, authorizes
the holding of an ex parte, preliminary investigation under Section 1 [b] thereof, which provides:

... If respondent cannot be subpoenaed, or if subpoenaed does not appear before the investigating
fiscal or state prosecutor, the preliminary investigation shall proceed without him. ...

IN VIEW OF THE FOREGOING, the instant petition for certiorari and prohibition is dismissed. No
costs.

SO ORDERED.

Fernando, CJ., Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera;
Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Separate Opinions

MAKASIAR, J., dissenting:

I reiterate my dissent in Nuñez vs. Sandiganbayan (G.R. Nos. 60581-50617).

It should be stressed that the alleged crimes of estafa, falsification and usurpation of public functions
were allegedly committed before October 11, 1977 — "long before the creation of the
Sandiganbayan on December 10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486,
the original Charter of the Sandiganbayan promulgated on June 11, 1978, " which is patently an ex
post facto law when applied to acts committed prior to its promulgation.

Moreover, due process requires that the accused be accorded a fair hearing, which includes the pre
investigation. In the case at bar, petitioner was not given a fair preliminary investigation on the date
set for hearing. The prosecutors set the pre investigation for October 20-October 25, 1980. A
subpoena dated October 3, 1980 was sent to petitioner to require him to appear "on October 20,
1980 and thereafter until the investigation is finished." The said subpoena was received by
petitioner's wife and said subpoena was not known to petitioner; because petitioner was then in
Catarman Northern Samar Hospital attending to his sick mother. On October 19, 1980, petitioner
proceeded to Manila because he had to appear before the Court of Appeals as counsel of one Dr.
Julio Ruiz. The preliminary investigation actually was conducted from October 19 to 23, 1980.
Consequently, petitioner could not appear at the preliminary investigation in the office of the City
Fiscal of Cagayan de Oro City, although his law partner and son actively participated in the said
preliminary investigation by examining the complainant and his witnesses but without any
authorization from petitioner who was totally unaware of the holding of said preliminary investigation.
On October 23, 1980, petitioner proceeded to the Fiscal's Office "only to discover that the
investigating body had already left for Manila." Thus, on October 29, 1980, petitioner went to Manila
to file his memorandum and to argue orally before the Sandiganbayan in his defense.

It is obvious that petitioner was in a better position to cross-examine the complainant and his
witnesses as he was acquainted with the facts of the case, of which his law partner and son were
ignorant, for the simple reason that he did not confer with them, much less authorize them to appear
for him at the said preliminary investigation. Facts consistent with his innocence or favorable to him
could have been elicited by the petitioner if he conducted the cross-examination of the complainant
and his witnesses at the preliminary investigation. This impairment of the right of petitioner to be
heard at the preliminary investigation could have been cured by the investigating body by waiting for
him until October 25, 1980, the last scheduled day of the preliminary investigation, and allowing him
to cross-examine the complainant and his witnesses and to submit his own affidavit and witnesses
before the filing of the information against him. As heretofore stated, petitioner appeared at the City
Fiscal's Office on October 23, 1980.

Furthermore, there is merit in the claim of petitioner that compelling him to attend trial in Manila
would entail enormous expenses on his part which he could ill afford. With all the superior resources
of the government pitted against the meager resources of petitioner, the Sandiganbayan as a
national court could hold hearings as fair and as equal as that accorded to the complainant and his
witnesses.

It is patent that the battle is unequal, because most of the cards, as it were. are stacked up against
petitioner who has to spend for himself and his witnesses, including their transportation to, and their
board and lodging in, Manila.
As Justice Frankfurter emphasized, procedural due process is a restatement of the "sporting idea of
fair play." Under the facts of the case, petitioner had not been accorded fair play and therefore was
denied his constitutional right to due process.

Separate Opinions

MAKASIAR, J., dissenting:

I reiterate my dissent in Nuñez vs. Sandiganbayan (G.R. Nos. 60581-50617).

It should be stressed that the alleged crimes of estafa, falsification and usurpation of public functions
were allegedly committed before October 11, 1977 — "long before the creation of the
Sandiganbayan on December 10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486,
the original Charter of the Sandiganbayan promulgated on June 11, 1978, " which is patently an ex
post facto law when applied to acts committed prior to its promulgation.

Moreover, due process requires that the accused be accorded a fair hearing, which includes the pre
investigation. In the case at bar, petitioner was not given a fair preliminary investigation on the date
set for hearing. The prosecutors set the pre investigation for October 20-October 25, 1980. A
subpoena dated October 3, 1980 was sent to petitioner to require him to appear "on October 20,
1980 and thereafter until the investigation is finished." The said subpoena was received by
petitioner's wife and said subpoena was not known to petitioner; because petitioner was then in
Catarman Northern Samar Hospital attending to his sick mother. On October 19, 1980, petitioner
proceeded to Manila because he had to appear before the Court of Appeals as counsel of one Dr.
Julio Ruiz. The preliminary investigation actually was conducted from October 19 to 23, 1980.
Consequently, petitioner could not appear at the preliminary investigation in the office of the City
Fiscal of Cagayan de Oro City, although his law partner and son actively participated in the said
preliminary investigation by examining the complainant and his witnesses but without any
authorization from petitioner who was totally unaware of the holding of said preliminary investigation.
On October 23, 1980, petitioner proceeded to the Fiscal's Office "only to discover that the
investigating body had already left for Manila." Thus, on October 29, 1980, petitioner went to Manila
to file his memorandum and to argue orally before the Sandiganbayan in his defense.

It is obvious that petitioner was in a better position to cross-examine the complainant and his
witnesses as he was acquainted with the facts of the case, of which his law partner and son were
ignorant, for the simple reason that he did not confer with them, much less authorize them to appear
for him at the said preliminary investigation. Facts consistent with his innocence or favorable to him
could have been elicited by the petitioner if he conducted the cross-examination of the complainant
and his witnesses at the preliminary investigation. This impairment of the right of petitioner to be
heard at the preliminary investigation could have been cured by the investigating body by waiting for
him until October 25, 1980, the last scheduled day of the preliminary investigation, and allowing him
to cross-examine the complainant and his witnesses and to submit his own affidavit and witnesses
before the filing of the information against him. As heretofore stated, petitioner appeared at the City
Fiscal's Office on October 23, 1980.

Furthermore, there is merit in the claim of petitioner that compelling him to attend trial in Manila
would entail enormous expenses on his part which he could ill afford. With all the superior resources
of the government pitted against the meager resources of petitioner, the Sandiganbayan as a
national court could hold hearings as fair and as equal as that accorded to the complainant and his
witnesses.
It is patent that the battle is unequal, because most of the cards, as it were. are stacked up against
petitioner who has to spend for himself and his witnesses, including their transportation to, and their
board and lodging in, Manila.

As Justice Frankfurter emphasized, procedural due process is a restatement of the "sporting idea of
fair play." Under the facts of the case, petitioner had not been accorded fair play and therefore was
denied his constitutional right to due process.

Footnotes

1 111 SCRA 433.

2 Annex "A", p. 27. Rollo.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-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. L-19329 December 22, 1989

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK defendants-appellants.

Augusto Kalaw for plaintiffs-appellants.

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. 2As posed by the referral resolution, 3 the question
is whether or not said statute.

...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 ... es nula y anti-constitutional 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 excluded 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 petition 4 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 rendered 5 (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 offender; 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 reconsideration and/or new trial. The Trial Court refused to
grant a new trial but modified its decision by reducing the amount of "P 100,000.00 in the dispositive
portion ... 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 a quo. 12 They concern
mainly the character of R.A. No. 1379 as an ex-post facto law, principally because it imposes the penalty
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 ... and his other lawful income and the income from
legitimately acquired property ... has been held ... 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 in republic v.
Agoncillo. 16 And germane is the 1977 ruling of the Court in de la Cruz v. Better Living, Inc. 17 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-Act to the effect that
"the provisions of said law cannot be given retro active 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 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 Katigbak's counsel, does not necessarily signify that he was
denied the right to such an investigation. What is more, the Trial Court's 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 a quo, 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, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

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.

4 Later amended.

5 Under date of April 11, 1960, by Hon. Magno S. Gatmaitan 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.

11 Id., pp. 494-505.

12 Rollo, pp. 117 et seq.

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 ... (had) no bearing on the substantial rights of the respondents
therein, particularly their constitutional right against self-incrimination."

16 SCRA 579, 584.

17 78 SCRA 274, 287.

18 Sec. 11, Rule III, 1935 Constitution, then in force.