2A

______________________________________________________________________

JOSE RIZAL

v.

PEOPLE OF THE PHILIPPINES

MEMORIAL OF APPLICANT

______________________________________________________________________

07 MAY 2017

MEMORIAL OF APPLICANT 1
 TABLE OF CONTENTS

I. Index of Authorities. ............................................................ 3

II. Statement of Jurisdiction ............................................................................................ 6

III. Statement of Facts ..................................................................................................... 6

IV. Questions Presented ................................................................................................. 9

V. Summary of Arguments ........................................................................................... 10

VI. Main Arguments ....................................................................................................... 11

VII. . Conclusion and Prayer for Relief..24

MEMORIAL OF APPLICANT 2
 INDEX OF AUTHORITIES

A. TREATY / INTERNATIONAL LAW

Bibliographical Information Page No.

1. Universal Declaration of Human Rights, General 23

Assembly-United Nations (1948), Article 20 (1)

2. International Convention on Civil and Political Rights 23

(1966), Article 22

3. Report of Special Rapporteur in the Field of Cultural 14-15

Rights (On the Right to Freedom of Artistic Expression and

Creativity) , as approved by the United Nations- General

Assembly during the 23rd Session of Human Rights Council

(2013)

B. CONSTITUTION

Bibliographical Information Page No.

1. Article III, Section 4 14

2. Article III, Section 8 21

C. STATUTE

Bibliographical Information Page No.

1. Revised Penal Code (RPC), Article 138 11

2. RPC, Article 147 17

MEMORIAL OF APPLICANT 3
3. RPC, Article 134 11

4. Old Penal Code, Article 188 19

C. JURISPRUDENCE

Bibliographical Information Page No.

1. U.S. v. Gomez, G.R. No. L-1516, September 28, 1907 18-19

2. Enrile v. Amin, G.R. No. 93335, September 13, 1990 12

3. Ombudsman v. Torres, G.R. No. 168309, January 29, 13

2008

4. PNB v. De Jesus, G.R. No. 149295, September 23, 2003 13-14

5. Garcia v. CA, G.R. No. 157171, March 14, 2006 13

6. Morigo v. People, G.R. No. 145226, February 6, 2004 13

7. Lecaroz v. Sandiganbayan, G.R. No. 130872, March 25, 13

1999

8. Yadao v. People, G.R. No. 150917, September 27, 2006 16

9. Hacienda Bino/Hortencia v. Cuenca, G.R. No. 150478, 20

April 15, 2005

10. Diocese of Bacolod v. COMELEC, G.R. No. 205728, 14

January 21, 2015

MEMORIAL OF APPLICANT 4
D. OTHER AUTHORITIES

Bibliographical Information Page No.

1. Cruz, Constitutional Law 2007 Edition, p. 242 22

2. De Leon and De Leon, Jr., Textbook on the Philippine 21

Constitution, 2014 Edition, pp. 160-161

MEMORIAL OF APPLICANT 5
 STATEMENT OF JURISDICTION

This appeal has been submitted to the Honorable Supreme Court in accordance

with the Rules of Court, and asks the Court to determine his guilt beyond reasonable

doubt.

STATEMENT OF FACTS

In 2009, the prosecution filed two separate Informations against Jose Rizal for

Inciting to Rebellion under Article 138 , and for Illegal Association under Article 147,

respectively, of the Revised Penal Code, stating as follows:

1. That on or about April 18, 2005, Jose Rizal, with criminal intent wrote

two books: Noli Me Tangere and El Filibusterismo which criticized the

President and his cabinet; thus, suggested a revolution to win

independence. He dedicated the said books to the three priests who

were murdered. He established cafe shops, called Masonic around

the country and abroad to raise funds to support subversive activities;

and that his books were found in the possession of those who took part

in the revolution, (Record, par. 1).

2. That He and seven other unknown individuals established the La Liga

Filipina with the primary purpose of rebelling against the Republic of

the Philippines; and that this association gave birth to the Katipunan

which attempted the rebellion on August 19, 2006, (Record, par. 2).

MEMORIAL OF APPLICANT 6
 Jose Rizal who is of great patriotism to his beloved Philippines and a civic-

spirited individual pleaded not guilty, (Record, par. 3); and produced sufficient

evidence of his innocence to the charges filed against him in both Information; however,

the trial courts denied him of the attainment of genuine justice by promulgating its

erroneous, baseless, and unfortunate decision by not acquitting when he truly deserves

the same. When read in the respective courts, Jose Rizal denied the accusations

averring that:

(A) In re: Inciting to Rebellion Charge-

That his writings are apolitical and are only works of fiction; that he was only

exploited and that his name and his books were being used by the

Katipunan; that he never knew the people who had copies of his books and

whom he alleged to have advised of; that he presented his passports and

visas as evidence which showed, that since 1999, he had been living

abroad and could not have come into contact with members of the

Katipunan, (Record, par. 7); that despite having the ability to leave the

country, he willingly participated in the proceedings, something which a

guilty person would not do; that he lived an honorable life even setting up

free eye check-ups wherever he was, (Record, par. 9); and that Pio testified

that Jose Rizal was against the rebellion, (Record, par. 10).

MEMORIAL OF APPLICANT 7
(B) In re: Illegal Association Charge-

That the primary purpose of La Liga Filipina is to unite the archipelago into

one vigorous and homogenous organization; that the secondary purposes of

La Liga Filipina are for mutual protection in every want and necessity,

defense against all violence and injustice, encourages instruction,

agriculture and commerce, and studies the application of reforms, (Record,

par. 4); that Jose Rizal produced the following Accomplishment Reports and

Itinerary of the La Liga Filipina, which showed that the La Liga Filipina

dispensed scholarship funds, legal aid, and also loaned capital to help in the

setting up of cooperatives, (Record, par. 9).

The lower courts found Jose Rizal guilty of the crimes as charged. Thus, this

appeal, (Record, par. 12).

MEMORIAL OF APPLICANT 8
 QUESTIONS PRESENTED

Is Jose Rizal guilty of-

1. Inciting to Rebellion under Article 138 of the Revised Penal Code; and/ or

2. Illegal Association under Article 147 thereof?

MEMORIAL OF APPLICANT 9
 SUMMARY OF ARGUMENTS

COUNT I

Jose Rizal is not guilty of Inciting to Rebellion, because (i) one element of the

crime is missing, (ii) he had no mens rea, (iii) there is reasonable doubt as to his evil

intent, and (iv) he acted within his constitutional right of expression as a writer.

COUNT II

Jose Rizal is not guilty of Illegal Association, because (i) his membership or

participation in the La Liga Filipina is not proven, and (ii) the purpose of said Association

is not against the law or public morals.

MEMORIAL OF APPLICANT 10
 MAIN ARGUMENTS

1. JOSE RIZAL IS NOT GUILTY OF INCITING TO REBELLION UNDER ARTICLE 138

OF THE REVISED PENAL CODE.

A. One element missing, thus no crime committed

The elements of the crime Inciting to Rebellion, under Article 138 of the Revised

Penal Code, are:

1. That the offender does not take arms or is not in open hostility against the

government;

2. That he incites others to the execution of any of the acts of rebellion; and

3. That the inciting is done by means of speeches, proclamations, writings,

emblems, banners or other representations tending to the same end.

In the case at bar, the second element is missing, in that the phrase incites others

requires that the goal of the perpetrator is to intentionally provoke the people to rise

publicly and take up arms to commit purposes of rebellion1. However, in this case, Jose

Rizal has no intent at all to incite the people. He was acting within his creative and

literary rights as a writer. Had he had the intent to incite them, he could have incited in a

clear, unmistakeable, unequivocal, and direct expression. Why would a person who

1
Revised Penal Code, Article 134

MEMORIAL OF APPLICANT 11
supports the concept of revolution still use fictional2, mystical, symbolic, and puzzling

terms and characters3, if it would mislead the reader?

Furthermore, a witness testified that Jose Rizal was against rebellion. It is therefore

clear that Jose Rizal, in writing Noli Me Tangere and El Filibusterismo, did not have evil

intent or ill motive at all. This is reasonable doubt, which calls for acquittal of Jose Rizal.

B. Inciting to Rebellion is a Political Crime, which is intent or motive- based

The Supreme Court, in the case of Enrile v. Amin4 reiterating People v. Hernandez5

defined political crimes as, x x x those directly aimed against the political order x x x.

The decisive factor is the intent or motive.

In the crime of Inciting to Rebellion punishable under Article 138 of the Revised

Penal Code, it is imperative for the courts to ascertain whether or not the act was done

in furtherance of a political end. The political motive of the act should be conclusively

demonstrated.

Thus, this crime is one of political character, and accordingly intent or motive- based.

C. Good faith is a valid defense in Inciting to Rebellion

Mala in se felonies are defined and penalized in the Revised Penal Code.

Accordingly, criminal intent must be clearly established with the other elements of the

2 Records, Par. 1
3 ibid
4 G.R. No. 93335, September 13, 1990
5 G.R. No. L-6025, May 30, 1964

MEMORIAL OF APPLICANT 12
crime; otherwise, no crime is committed.6 Accordingly, felonies punished under the

Revised Penal Code, are mala in se, and hence, good faith and lack of criminal intent

are allowed as a complete defense7.

The crime of Inciting to Rebellion, is clearly a crime mala in se, it being punishable

under Article 138 of the Revised Penal Code.

Therefore, criminal intent is material herein. Absent the mens rea, no crime of

Inciting to Rebellion. Evil intent must unite with an unlawful act for a crime to

exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal

mind is wanting8.

D. Jose Rizal acted in good faith

In Ombudsman v. Torres citing9 PNB v. De Jesus10, the Supreme Court said

that-

Good faith, here understood, is an intangible and abstract quality with no

technical meaning or statutory definition, and it encompasses, among other

things, an honest belief, the absence of malice and the absence of design to

defraud or to seek an unconscionable advantage. x x x . (emphasis

supplied) It implies honesty of intention, and freedom from knowledge of

circumstances which ought to put the holder upon inquiry. The essence of good

faith lies in an honest belief in the validity of ones right, ignorance of a superior

claim, and absence of intention to overreach another. x x x

6 Garcia v. People, G.R. No. 157171, March 14, 2006

7 Morigo v. People, G.R. No. 145226, February 06, 2004
8 Lecaroz v. Sandiganbayan, G.R. No. 130872. March 25, 1999
9 G.R. No. 168309, January 29, 2008
10 G.R. No. 149295, September 23, 2003

MEMORIAL OF APPLICANT 13
 In the instant case, there are clear manifestations of good faith and lack of

criminal intent on the part of applicant Jose Rizal, as shown in paragraphs 7, 9,

and 10 of the Record.

E. Jose Rizal has constitutional right to expression as a writer

In the case of Diocese of Bacolod v. Comelec11, the Supreme Court unequivocally

held that "every writer, actor, or producer, no matter what medium of expression he may

use, should be freed from the censor."12 This is in harmony with ones right to freedom

of expression under Article III, Section 413 of the Constitution.

Moreover, International Law protects the same inalienable, inviolable, and indivisible

human right to expression to which the Government of the Philippines must faithfully

respect under the doctrine of pacta sunt servanda.

Noteworthy also is the discussion in paragraph 89(d) of the Report of Special

Rapporteur in the Field of Cultural Rights (On the Right to Freedom of Artistic

Expression and Creativity)14, as approved by the United Nations- General Assembly

during the 23rd Session of Human Rights Council:

Decision makers, including judges, when resorting to possible

limitations to artistic freedoms, should take into consideration the

nature of artistic creativity (as opposed to its value or merit), as well

as the right of artists to dissent, to use political, religious and

11 G.R. No. 205728, January 21, 2015

12 Superior Films v. Regents of University of State of New York, 346 US 587, 589 (1954), J. Douglas
concurring.
13 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of

the people peaceably to assemble and petition the government for redress of grievances.
14 March 14, 2003

MEMORIAL OF APPLICANT 14
 economic symbols as a counter-discourse to dominant powers, and

to express their own belief and world vision. The use of the

imaginary and fiction must be understood and respected as a crucial

element of the freedom indispensable for creative activities;

Accordingly, Applicant Jose Rizals symbolical literary piece, painstakingly written

within the ambit of his right to artistic expression, is no crime at all.

To restrict Jose Rizal from making known his craft as a writer is unconstitutional. In

the same manner, freedom of artistic expression and creativity cannot be dissociated

from the right of all persons to enjoy the arts, as in many cases restrictions on artistic

freedoms aim at denying people access to specific artworks. Hence, removing creative

expressions from public access is a way to restrict artistic freedom. His craft should not

be arbitrarily curtailed or be denied public access. Doing so is a sacrilege to the

Constitution.

F. Reasonable doubt exists

It is incumbent upon the prosecution to demonstrate Jose Rizals culpability beyond

a reasonable doubt, independently of whatever the defense has offered to exculpate the

latter. Conviction must rest on the strength of the prosecution's evidence, not merely on

conjectures or suppositions, and certainly not on the weakness of the accused's

defense;

The record15 shows nothing but reasonable doubt exists as to his intent or motive.

This, the prosecution failed to prove beyond reasonable doubt. The Court has nothing

15 Record, paragraph 7, 9, 10

MEMORIAL OF APPLICANT 15
left to do thus, but to acquit Jose Rizal of the charges of Inciting to Rebellion. Settled in

jurisprudence that-

Accusation is not synonymous with guilt. The proof against him must survive

the test of reason; the strongest suspicion must not be permitted to sway

judgment. If the evidence is susceptible of two interpretations, one

consistent with the innocence of the accused and the other consistent

with his guilt, the accused must be acquitted. The overriding

consideration is not whether the court doubts the innocence of the accused

but whether it entertains a reasonable doubt as to his guilt. If there exist

even one iota of doubt, this Court is "under a long standing legal injunction

to resolve the doubt in favor of herein accused-petitioner."

xxx

An acquittal based on reasonable doubt will prosper even though the

accused's innocence may be doubted. It is better to free a guilty man than

to unjustly keep in prison one whose guilt has not been proved by the

required quantum of evidence. For only when there is proof beyond any

shadow of doubt that those responsible should be made answerable. 16

16 Yadao v. People, G.R. No. 150917, September 27, 2006

MEMORIAL OF APPLICANT 16
 2. JOSE RIZAL IS NOT GUILTY OF ARTICLE 147 OF THE REVISED PENAL

CODE.

A. La Liga Filipinas purposes are lawful, thus there is no crime of illegal association to

speak of.

Under Article 147 of the Revised Penal Code, the elements of the crime illegal

association are:

a. Associations totally or partially organized for the purpose of committing

any of the crime punishable under the code; or

b. Associations totally or partially organized for some purpose contrary to

public morals.

In the case at bar, La Liga Filipina did not violate Article 147 because it Filipina was

not formed to commit any crimes under the Revised Penal Code. The object and

purpose of the La Liga Filipina is a patriotic and civic organization with a vision of uniting

a Philippines into a homogenous organization through legal and peaceful means, as

evidenced by the Articles of Incorporation that was submitted to the Securities and

Exchange Commission (SEC) (Exhibit 3)17, to wit:

PRIMARY PURPOSE: To unite the archipelago into one vigorous and

homogeneous organization.

17 Record, par.4

MEMORIAL OF APPLICANT 17
 SECONDARY PURPOSE(S):

a. For mutual protection in every want and necessity;

b. Defense against all violence and injustice;

c. Encourage of instruction, agriculture and commerce;

d. Study the application of reforms. (emphasis supplied)

The primary and secondary purposes themselves show neither advocacy nor

adherence to committing crimes enumerated in the Revised Penal Code like rebellion,

nor are the Articles of Incorporation expressly calling for the commission of acts

contrary to public morals. The prosecution failed to point out the purposes of La Liga

Filipina which are against public morals.

In US v Gomez18, the accused was acquitted of the charge of Illegal Association

because the Supreme Court ruled that:

xxx that the evidence adduced during the trial of the cause is

insufficient to support the charges set forth in the complaint filed in said

cause

(1) Because none of the proofs sufficiently demonstrate that the object

and purpose of the association referred to were contrary to public morals,

or that it was the intention of said association to commit any of the crimes

punished by the Penal Code.

18 G.R. No. L-1516, September 28, 1907

MEMORIAL OF APPLICANT 18
 (2) Because, even if it were possible, under article 189, paragraph 1, for

one person to be responsible as the founder, director, or president of an

illegal association, he would be responsible only as such founder, etc.,

when such association was contrary to public morals or had for its object

the commission of any of the crimes punished by the Penal Code.

(3) Because, even though the founder, director, or president of such

association may have had an illegal purpose in view in the founding of the

same, yet such illegal purpose on his part alone could not affect the object

and nature of the association itself or the lawful end and real purpose of

the same. Article 188 of the Penal Code penalizes the illicit purpose of the

association, and not the end or object which its founder, director, or

president may hope to realize under the shadow of the association. If in

the management of the association he commits a crime, he may be

punished in accordance with his acts, but not under the provisions of said

Article 188. (emphasis supplied)

Applied here thus, convicting Jose Rizal for the crime of illegal association will

violate jurisprudence in that La Liga Filipina is not established for any illegal or immoral

purpose. Equally, his membership or role in the La Liga Filipina remains unclear and

unproven. The law specifies that a only a founder, organizer, and member of an illegal

association are liable under this felony, but the prosecution did not even attempt to

prove that Rizal participated therein, nor the prosecution failed to prove that La Liga

Filipinas purposes are illegal or contrary to public morals. Again, this is brazen

MEMORIAL OF APPLICANT 19
reasonable doubt which warrants nothing but Rizals acquittal of the charges on illegal

association.

B. The lower courts application of the Evangelista Case19 is erroneous.

In Hacienda Bino v. Cuenca20, the Supreme Court found that the erroneous

invocation of the doctrine of stare decisis cannot be countenanced. As such, it warned-

Under the doctrine of stare decisis, when a court has laid down a principle of

law as applicable to a certain state of facts, it will adhere to that principle and

apply it to all future cases in which the facts are substantially the same. Where

the facts are essentially different, however, stare decisis does not apply, for

a perfectly sound principle as applied to one set of facts might be entirely

inappropriate when a factual variance is introduced. (Emphasis supplied)

As applied herein, the case of People v. Evangelista cited by the trial court as legal

basis is misplaced and erroneous as it is dissimilar with the facts and law surrounding

Jose Rizals case.

First, there is factual difference. In the Evangelista case, the accused was charged

and convicted for his membership in then the Communist Party of the Philippines,

whose constitution and by-laws expressly state as purpose is to incite class struggle

and to overthrow the present government by peaceful means or by armed revolution;

therefore the purpose of the party is to alter the social order and to commit the crimes of

rebellion and sedition.

19 Record, par. 13
20 G.R. No. 150478, April 15, 2005.

MEMORIAL OF APPLICANT 20
 However, in the case at bar, accused is being prosecuted for his unproven

membership in an organization whose primary and secondary purposes are

nevertheless clearly lawful at all. This is substantial difference in the facts.

Second, there is difference as to the applicable law. In the Evangelista case, the

charge is for violation of Article 188 of the Spanish Penal Code, as substituted by Article

24 of the Royal Decree of September 12, 1897. This is now outdated, and obsolete

legal basis to hold Jose Rizal guilty of Illegal Association under the present Revised

Penal Code.

Therefore, the lower courts decision based on an inapplicable, outdated, and

obsolete law is perfectly erroneous and misplaced.

C. Under Article III, Section 8 of the Constitution, as long as the association formed is

not contrary to law, the government is prohibited from abridging such association.

Article III, Section 8, provides that:

The right of the people, including those employed in the public,

private sectors, to form unions, associations or societies for purposes

not contrary to law shall not be abridged.

The right to form associations is the freedom to organize or to be a member of any

group or association, union, or society, and to adopt the rules which the members judge

most appropriate to achieve their purpose.21

21 De Leon and De Leon, Jr., Textbook on the Philippine Constitution, p. 160-161

MEMORIAL OF APPLICANT 21
 Societies may be formed under this provision for social, scientific, cultural, political,

religious or other lawful purposes. The right of association is deemed embraced in the

freedom of expression because the organization can be used as a vehicle for the

expression of views that have a bearing on the public welfare. These views would be

more effectively disseminated and enjoy a more respectful audience if articulated

through an organization to which a person belongs than if he were to ventilate them as

a mere individual.22

The purposes of the constitutional guarantee are to encourage the formation of

voluntary associations so that through the cooperative activities of individuals, the

welfare of the nation may be advanced and the government may thereby receive the

assistance in its ever-increasing public service activities.23

The phrase for purposes not contrary to law is a built-in limitation of the right. xxx

The legislature may not, of course, arbitrarily declare any purpose as unlawful even if it

is not inimical to the public. xxx24

In the case at bar, the La Liga Filipina is an association formed for the purposes of

uniting the archipelago into one vigorous and homogenous organization with the intent

to promote camaraderie among the Filipinos and help each other in areas like mutual

protection, defense against all violence and injustice, application of reforms, among

others. La Liga Filipinas Articles of Incorporation and Itinerary report shows that the

organization is dedicated to civic and lawful purposes. Thus, its existence cannot be

prohibited.

22 Cruz, Isagani., Constitutional Law, 2007 Ed., p. 242

23 Supra note 3.
24 Supra note 4.

MEMORIAL OF APPLICANT 22
B. Under various international law precepts, the right to association is an inviolable

human right.

Article 20(1) of the Universal Declaration of Human Rights provides that Everyone

has the right to freedom of peaceful assembly and association. This precept was later

reiterated under Article 22(1) of the International Covenant on Civil and Political Rights

with the modification that a person has the also the right to form and join trade unions

for the protection of his interests. Since, this is a legal association no one can prohibit

its operation.

Philippines is a signatory of both the Universal Declaration of Human Rights and The

International Convention on Civil and Political Rights in which Article 20(1) of UDHR and

Article 22(1) of the ICCPR form part of the generally accepted principles of International

law

Thus, the La Liga Filipina, being a legal association protected by both the Philippine

Constitution and International law, cannot be prohibited from its lawful operation.

MEMORIAL OF APPLICANT 23
 CONCLUSION AND PRAYER FOR RELEIF

On the basis of the facts and law set forth in this Memorial, Applicant Rizal
respectfully requests the Honorable Supreme Court to REVERSE and SET ASIDE the
erroneous judgments of the respective trial courts, and to ACQUIT accused- applicant
Jose Rizal of the following felonies:

Under Count I: Inciting to Rebellion under Article 138 of the Revised Penal Code; and
Under Count II: Illegal Association under Article 147 the Revised Penal Code.

Other reliefs, just and equitable under the premises are likewise prayed for.

MEMORIAL OF APPLICANT 24
 For the Applicant:

Francis Dominick P. Abril Leane Anne G. Barawid

Xymann Dario M. Paquitol Denisse Mae M. Denna

Marvin G. Dy

MEMORIAL OF APPLICANT 25