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G.R. No.

127930 December 15, 2000

MIRIAM COLLEGE FOUNDATION, INC., petitioner,


vs.
HON. COURT OF APPEALS, JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO,
ELIZABETH VALDEZCO, JOSE MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD
GARY RENACIDO, respondents.

KAPUNAN, J.:

"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young readers," and devoid
of all moral values."1 This was now some members of the Miriam College community allegedly
described the contents of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College's
school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in
the Chi-Rho included:

. . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry Renacido . . .
Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo
players who, one evening, after their performance went to see a bold show in a place called
"Flirtation". This was the way the author described the group's exposure during that stage
show:

"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang
bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang
pinananabikan nuong makalawa pa, susog naman ang tropa.

". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee. Nakasuot
lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong.
Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono ng
"Goodbye" ng Air Supply. Dahan-dahan ang kanyang mga malalantik at mapang-akit
na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-
dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar, ngunit
para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang nektar.

"Kaskas mo babe, sige . . . kaskas."

Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa
harap niya'y nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong tela. Hindi
nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng
kanyang hita. Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang
pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-putol ang
kanyang hininga nang kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo
naghingalo siya nang kabayuhin ito ng dahan dahan . . . Pabilis ng pabilis.'

The author further described Mike's responses to the dancer as follows (quoted in
part):

. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang


ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang
dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"

Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan


siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim
ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring
sagupaan ng libog. Ang alam lang niya ay nanlata na siya."

After the show the group went home in a car with the bokalista driving. A pedestrian
happened to cross the street and the driver deliberately hit him with these words:

"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng
sabog nilang drayber/bokalista."

The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!!
Put . . .!!!!

Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title
of "Libog at iba pang tula."

In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko,
nakakagulat ang aming pamagat." Jerome then proceeded to write about previous reactions
of readers to women-writers writing about matters erotic and to gay literature. He justified the
Magazine's erotic theme on the ground that many of the poems passed on to the editors
were about "sekswalidad at iba't ibang karanasan nito." Nakakagulat ang tapang ng mga
manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon pang katulad ng
Miriam!"

Mr. Gomez quoted from a poem entitled "Linggo" written by himself:

may mga palangganang nakatiwangwang -

mga putang biyak na sa gitna,

'di na puwedeng paglabhan,

'di na maaaring pagbabaran . . ."

Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang ito
namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na "Libog at iba
pang Tula." He finished "Foreplay" with these words: "Dahil para saan pa ang libog kung
hindi ilalabas?"

The cover title in question appears to have been taken from a poem written by Relly Carpio
of the same title. The poem dealt on a woman and a man who met each other, gazed at
each other, went up close and "Naghalikan, Shockproof." The poem contained a background
drawing of a woman with her two mammary and nipples exposed and with a man behind
embracing her with the woman in a pose of passion-filled mien.

Another poem entitled 'Virgin Writes Erotic' was about a man having fantasies in his sleep.
The last verse said: "At zenith I pull it out and find myself alone in this fantasy." Opposite the
page where this poem appeared was a drawing of a man asleep and dreaming of a naked
woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a
hospital bed with one end rolled up). The woman's right nipple can be seen clearly. Her
thighs were stretched up with her knees akimbo on the bed.

In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle Campanario.
It was about a young student who has a love-selection problem: ". . . Kung sinong pipiliin:
ang teacher kong praning, o ang boyfriend kong bading." The word "praning" as the court
understands it, refers to a paranoid person; while the word "bading" refers to a sward or
"bakla" or "badidang". This poem also had an illustration behind it: of a young girl with large
eyes and sloping hair cascading down her curves and holding a peeled banana whose top
the illustrator shaded up with downward-slanting strokes. In the poem, the girl wanted to eat
banana topped by peanut butter. In line with Jerome's "Foreplay" and by the way it was
drawn that banana with peanut butter top was meant more likely than not, to evoke a
spiritedly mundane, mental reaction from a young audience.

Another poem entitled "Malas ang Tatlo" by an unknown author went like this:

'Na picture mo na ba

no'ng magkatabi tayong dalawa

sa pantatluhang sofa -

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:

ikaw, ako at siya

kulang na lang, kamera."

A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox
(lobo) yearning for "karneng sariwa, karneng bata, karneng may kalambutan . . . isang bahid
ng dugong dalaga, maamo't malasa, ipahid sa mga labing sakim sa romansa' and ended
with 'hinog na para himukin bungang bibiyakin."2

Following the publication of the paper and the magazine, the members of the editorial board,3 and
Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by Dr. Aleli
Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4 November 1994
stated:

This is to inform you that the letters of complain filed against you by members of the Miriam
Community and a concerned Ateneo grade five student have been forwarded to the
Discipline Committee for inquiry and investigation. Please find enclosed complaints.
As expressed in their complaints you have violated regulations in the student handbook
specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j,
page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37.

You are required to submit a written statement in answer to the charge/s on or before the
initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at
the DSA Conference Room.4

None of the students submitted their respective answers. They instead requested Dr. Sevilla to
transfer the case to the Regional Office of the Department of Education, Culture and Sports (DECS)
which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the
case.5

In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their written
answers.

In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter6 to the Discipline
Committee reiterating his clients' position that said Committee had no jurisdiction over them.
According to Atty. Valmonte, the Committee was "trying to impose discipline on his clients on
account of their having written articles and poems in their capacity as campus journalists." Hence, he
argued that "what applies is Republic Act No. 7079 The Campus Journalism Act and its
implementing rules and regulations." He also questioned the partiality of the members of said
Committee who allegedly "had already articulated their position" against his clients.

The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline Board,
after a review of the Discipline Committee's report, imposed disciplinary sanctions upon the
students, thus:

1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho and a 4th


year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February 2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year student and
could graduate as summa cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including diploma. She is an
Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He is a 2nd year student.
He wrote the fiction story "Kaskas";
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd year and
wrote the poem "Libog";
10. Jerome Gomez Dismissed and given transfer credentials. He is in 3rd year. He
wrote the foreword "Foreplay" to the questioned Anthology of
Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year student and
art editor of Chi-Rho.7

The above students thus filed a petition for prohibition and certiorari with preliminary
injunction/restraining order before the Regional Trial Court of Quezon City questioning the
jurisdiction of the Discipline Board of Miriam College over them.

On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N. Salazar, Jr.,
issued an order denying the plaintiffs' prayer for a Temporary Restraining Order. It held:

There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes
school Administrators from exercising jurisdiction over cases of the nature involved in the
instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The
DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over
disciplinary cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it
merely prescribes for purposes of internal administration which DECS officer or body shall
hear cases arising from R A. 7079 if and when brought to it for resolution. The said order
never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707.8

The students thereafter filed a "Supplemental Petition and Motion for Reconsideration." The
College followed with its Answer.

Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of
preliminary injunction.

ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of
preliminary injunction issue enjoining the defendants, including the officers and members of
the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and
the officers and members of the Security Department, Division, or Security Agency securing
the premises and campus of Miriam College Foundation, Inc. from:

1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders


complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido;
(c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari Ramos, but otherwise
allowing the defendants to impose lesser sanctions on aforementioned plaintiffs; and

2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all
eleven of them) from taking tests or exams and entering the Miriam campus for such
purpose as extended to all students of Miriam College Foundation, Inc.; neither
should their respective course or subject teachers or professors withhold their
grades, including final grades, if and when they meet the requirements similarly
prescribed for all other students, this current 2nd Semester of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario,
Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall
not be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have
the right to receive her diploma, but defendants are not hereby prevented from refusing her
the privilege of walking on the graduation stage so as to prevent any likely public tumults.

The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos
(P4,000.00) each.
SO ORDERED.9

Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995,
the RTC dismissed the petition, thus:

4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch
as both parties do not want this court to assume jurisdiction here then this court will not be
more popish than the Pope and in fact is glad that it will have one more case out of its
docket.

ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties
going to another forum.

All orders heretofore issued here are hereby recalled and set aside.

SO ORDERED.10

The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in this
Court through a petition for certiorari and prohibition of preliminary injunction/restraining
order11 questioning the Orders of the RTC dated 10 and 24 February 1995.

On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for
disposition.12 On 19 May 1995, the CA issued a resolution stating:

The respondents are hereby required to file comment on the instant petition and to show
cause why no writ of preliminary injunction should be issued, within ten (10) days from notice
hereof, and the petitioners may file reply thereto within five (5) days from receipt of former's
comment.

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.

SO ORDERED.13

In its Decision dated 26 September 1996, respondent court granted the students' petition. The CA
declared the RTC Order dated 22 February 1995, as well as the students' suspension and dismissal,
void.

Hence, this petition by Miriam College.

We limit our decision to the resolution of the following issues:

(1) The alleged moot character of the case.

(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the students.

(3) The power of petitioner to suspend or dismiss respondent students.

(4) The jurisdiction of petitioner over the complaints against the students.
We do not tackle the alleged obscenity of the publication, the propriety of the penalty imposed or the
manner of the imposition thereof. These issues, though touched upon by the parties in the
proceedings below, were not fully ventilated therein.

Petitioner asserts the Court of Appeals found the case moot thus:

While this petition may be considered moot and academic since more than one year have
passed since May 19, 1995 when this court issued a temporary restraining order enjoining
respondents from enforcing the dismissal and suspension on petitioners . . .14

Since courts do not adjudicate moot cases, petitioner argues that the CA should not have proceeded
with the adjudication of the merits of the case.

We find that the case is not moot.

It may be noted that what the court issued in 19 May 1995 was a temporary restraining order, not a
preliminary injunction. The records do not show that the CA ever issued a preliminary injunction.

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to perform to refrain from
performing a particular act or acts.15 As an extraordinary remedy, injunction is calculated to preserve
or maintain the status quo of things and is generally availed of to prevent actual or threatened acts,
until the merits of the case can be heard.16 A preliminary injunction persists until it is dissolved or
until the termination of the action without the court issuing a final injunction.

The basic purpose of restraining order, on the other hand, is to preserve the status quo until the
hearing of the application for preliminary injunction.17 Under the former 5, Rule 58 of the Rules of
Court, as amended by 5, Batas Pambansa Blg. 224, a judge (or justice) may issue a temporary
restraining order with a limited life of twenty days from date of issue.18 If before the expiration of the
20-day period the application for preliminary injunction is denied, the temporary order would thereby
be deemed automatically vacated. If no action is taken by the judge on the application for preliminary
injunction within the said 20 days, the temporary restraining order would automatically expire on the
20th day by the sheer force of law, no judicial declaration to that effect being necessary.19 In the
instant case, no such preliminary injunction was issued; hence, the TRO earlier issued automatically
expired under the aforesaid provision of the Rules of Court.20

This limitation as to the duration of the temporary restraining order was the rule prevailing when the
CA issued its TRO dated 19 May 1995.21 By that time respondents Elizabeth Valdezco and Joel Tan
had already served their respective suspensions. The TRO was applicable only to respondents
Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of
whom were dismissed, and respondent Camille Portugal whose graduation privileges were withheld.
The TRO, however, lost its effectivity upon the lapse of the twenty days. It can hardly be said that in
that short span of time, these students had already graduated as to render the case moot.

Either the CA was of the notion that its TRO was effective throughout the pendency of the case or
that what is issued was a preliminary injunction. In either case, it was error on the part of the CA to
assume that its order supposedly enjoining Miriam from enforcing the dismissal and suspension was
complied with. A case becomes moot and academic when there is no more actual controversy
between the parties or no useful purpose can be served in passing upon the merits.22 To determine
the moot character of a question before it, the appellate court may receive proof or take notice of
facts appearing outside the record.23 In the absence of such proof or notice of facts, the Court of
Appeals should not have assumed that its TRO was enforced, and that the case was rendered moot
by the mere lapse of time.

Indeed, private respondents in their Comment herein24 deny that the case has become moot since
Miriam refused them readmission in violation of the TRO. This fact is unwittingly conceded by Miriam
itself when, to counter this allegation by the students, it says that private respondents never sought
readmission after the restraining order was issued.25 In truth, Miriam relied on legal technicalities to
subvert the clear intent of said order, which states:

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.

Petitioner says that the above order is "absurd" since the order "incorrectly directs public
respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon City not
to dismiss or suspend the students."26

We do not agree. Padua vs. Robles27 lays down the rules in construing judgments. We find these
rules to be applicable to court orders as well:

The sufficiency and efficacy of a judgment must be tested by its substance rather than its
form. In construing a judgment, its legal effects including such effects that necessarily follow
because of legal implications, rather than the language used, govern. Also, its meaning,
operation, and consequences must be ascertained like any other written instrument. Thus, a
judgment rests on the intent of the court as gathered from every part thereof, including the
situation to which it applies and attendant circumstances. (Emphasis supplied.)

Tested by such standards, we find that the order was indeed intended for private respondents (in the
appellate court) Miriam College, et al., and not public respondent Judge. In dismissing the case, the
trial judge recalled and set aside all orders it had previously issued, including the writ of preliminary
injunction. In doing so, the trial court allowed the dismissal and suspension of the students to remain
in force. Thus, it would indeed be absurd to construe the order as being directed to the RTC.
Obviously, the TRO was intended for Miriam College.

True, respondent-students should have asked for a clarification of the above order. They did not.
Nevertheless, if Miriam College found the order "absurd," then it should have sought a clarification
itself so the Court of Appeals could have cleared up any confusion. It chose not to. Instead, it took
advantage of the supposed vagueness of the order and used the same to justify its refusal to
readmit the students.

As Miriam never readmitted the students, the CA's ruling that the case is moot has no basis. How
then can Miriam argue in good faith that the case had become moot when it knew all along that the
facts on which the purported moot character of the case were based did not exist? Obviously, Miriam
is clutching to the CA's wrongful assumption that the TRO it issued was enforced to justify the
reversal of the CA's decision.

Accordingly, we hold that the case is not moot, Miriam's pretensions to the contrary notwithstanding.

II
"To uphold and protect the freedom of the press even at the campus level and to promote the
development and growth of campus journalism as a means of strengthening ethical values,
encouraging critical and creative thinking, and developing moral character and personal discipline of
the Filipino youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT
PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND
FOR OTHER PURPOSES,"29 the law contains provisions for the selection of the editorial board30 and
publication adviser,31 the funding of the school publication,32 and the grant of exemption to donations
used actually, directly and exclusively for the promotion of campus journalism from donor's or gift
tax.33

Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its
members. Thus, the second paragraph of Section 4 states that "(o)nce the publication is established,
its editorial board shall freely determine its editorial policies and-manage the publication's funds."

Section 7, in particular, provides:

A member of the publication staff must maintain his or her status as student in order to retain
membership in the publication staff. A student shall not be expelled or suspended solely on
the basis of articles he or she has written, or on the basis of the performance of his or her
duties in the student publication.

Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary for the
effective implementation of this Act."34 Pursuant to said authority, then DECS Secretary Armand
Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule XII that:

GENERAL PROVISIONS

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and
facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act No.
7079. It shall also act on cases on appeal brought before it.

The DECS regional office shall have the original jurisdiction over cases as a result of the decisions,
actions and policies of the editorial board of a school within its area of administrative responsibility. It
shall conduct investigations and hearings on the these cases within fifteen (15) days after the
completion of the resolution of each case. (Emphasis supplied.)

The latter two provisions of law appear to be decisive of the present case.

It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions upon the
students, the latter filed a petition for certiorari and prohibition in the Regional Trial Court raising, as
grounds therefor, that:

DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF


DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.35

II

DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD


DO NOT HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND,
THEREFORE THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL
DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS.36

Anent the first ground, the students theorized that under Rule XII of the Rules and Regulations for
the Implementation of R.A. No. 7079, the DECS Regional Office, and not the school, had jurisdiction
over them. The second ground, on the other hand, alleged lack of impartiality of the Miriam
Disciplinary Board, which would thereby deprive them of due process. This contention, if true, would
constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial
court. These were the same grounds invoked by the students in their refusal to answer the charges
against them. The issues were thus limited to the question of jurisdiction - a question purely legal in
nature and well within the competence and the jurisdiction of the trial court, not the DECS Regional
Office. This is an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global
Communications, Inc. vs. Relova.37

Absent such clarity as to the scope and coverage of its franchise, a legal question arises
which is more appropriate for the judiciary than for an administrative agency to resolve. The
doctrine of primary jurisdiction calls for application when there is such competence to act on
the part of an administrative body. Petitioner assumes that such is the case. That is to beg
the question. There is merit, therefore, to the approach taken by private respondents to seek
judicial remedy as to whether or not the legislative franchise could be so interpreted as to
enable the National Telecommunications Commission to act on the matter. A jurisdictional
question thus arises and calls for an answer.

However, when Miriam College in its motion for reconsideration contended that the DECS Regional
Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish than the Pope,"
dismissed the case. Indeed, the trial court could hardly contain its glee over the fact that "it will have
one more case out of its docket." We remind the trial court that a court having jurisdiction of a case
has not only the right and the power or authority, but also the duty, to exercise that jurisdiction and to
render a decision in a case properly submitted to it.38 Accordingly, the trial court should not have
dismissed the petition without settling the issues presented before it.

III

Before we address the question of which between the DECS Regional Office and Miriam College
has jurisdiction over the complaints against the students, we first delve into the power of either to
impose disciplinary sanctions upon the students. Indeed, the resolution of the issue of jurisdiction
would be reduced to an academic exercise if neither the DECS Regional Office nor Miriam College
had the power to impose sanctions upon the students.

Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits the
expulsion or suspension of a student solely on the basis of articles he or she has written.

A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning academic
freedom. This institutional academic freedom includes the right of the school or college to decide for
itself, its aims and objectives, and how best to attain them free from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint.39 The essential freedoms
subsumed in the term "academic freedom" encompasses the freedom to determine for itself on
academic grounds:

(1) Who may teach,


(2) What may be taught,

(3) How it shall be taught, and

(4) Who may be admitted to study.40

The right of the school to discipline its students is at once apparent in the third freedom, i.e., "how it
shall be taught." A school certainly cannot function in an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution requires
rules and regulations necessary for the maintenance of an orderly educational program and
the creation of an educational environment conducive to learning. Such rules and regulations
are equally necessary for the protection of the students, faculty, and property.41

Moreover, the school has an interest in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling discipline, the school teaches discipline.
Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach."

Incidentally, the school not only has the right but the duty to develop discipline in its students. The
Constitution no less imposes such duty.

All educational institutions shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of citizenship, strengthen ethical and
spiritual values, develop moral character and personal discipline, encourage critical and
creative thinking, broaden scientific and technological knowledge, and promote vocational
efficiency.42

In Angeles vs. Sison, we also said that discipline was a means for the school to carry out its
responsibility to help its students "grow and develop into mature, responsible, effective and worthy
citizens of the community."43

Finally, nowhere in the above formulation is the right to discipline more evident than in "who may be
admitted to study." If a school has the freedom to determine whom to admit, logic dictates that it also
has the right to determine whom to exclude or expel, as well as upon whom to impose lesser
sanctions such as suspension and the withholding of graduation privileges.

Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of students found guilty of
hazing by petitioner therein, holding that:

No one can be so myopic as to doubt that the immediate reinstatement of respondent


students who have been investigated and found guilty by the Disciplinary Board to have
violated petitioner university's disciplinary rules and standards will certainly undermine the
authority of the administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which has
been enshrined in the 1935, 1973 and the present 1987 Constitution.45

Tracing the development of academic freedom, the Court continued:


Since Garcia vs. Loyola School of Theology, we have consistently upheld the salutary
proposition that admission to an institution of higher learning is discretionary upon a school,
the same being a privilege on the part of the student rather than a right. While under the
Education Act of 1982, students have a right "to freely choose their field of study, subject to
existing curricula and to continue their course therein up to graduation," such right is subject,
as all rights are, to the established academic and disciplinary standards laid down by the
academic institution.

"For private schools have the right to establish reasonable rules and regulations for the
admission, discipline and promotion of students. This right . . . extends as well to parents . . .
as parents under a social and moral (if not legal) obligation, individually and collectively, to
assist and cooperate with the schools."

Such rules are "incident to the very object of incorporation and indispensable to the
successful management of the college. The rules may include those governing student
discipline." Going a step further, the establishment of the rules governing university-student
relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves
as collectively, the students demanded and plucked for themselves from the panoply of
academic freedom their own rights encapsulized under the rubric of "right to education"
forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty to
learn under the rules laid down by the school.

. . . It must be borne in mind that universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may, the
development, or flowering if you will, of the total man.

In essence, education must ultimately be religious - not in the sense that the founders or
charter members of the institution are sectarian or profess a religious ideology. Rather, a
religious education, as the renowned philosopher Alfred North Whitehead said, is 'an
education which inculcates duty and reverence.' It appears that the particular brand of
religious education offered by the Ateneo de Manila University has been lost on the
respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila
University as their own a minute longer, for they may foreseeably cast a malevolent influence
on the students currently enrolled, as well as those who come after them. 1avv phi 1

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that:
"The maintenance of a morally conducive and orderly educational environment will be
seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to
admit petitioner's children and to reintegrate them to the student body." Thus, the decision of
petitioner university to expel them is but congruent with the gravity of their misdeeds.46

B.

Section 4 (1), Article XIV of the Constitution recognizes the State's power to regulate educational
institution:
The State recognizes the complementary roles of public and private institutions in the
educational system and shall exercise reasonable supervision and regulation of all
educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the requirement
of reasonableness. Moreover, the Constitution allows merely the regulation and supervision of
educational institutions, not the deprivation of their rights.

C.

In several cases, this Court has upheld the right of the students to free speech in school premises. In
the landmark case of Malabanan vs. Ramento,47 students of the Gregorio Araneta University
Foundation, believing that the merger of the Institute of Animal Science with the Institute of
Agriculture would result in the increase in their tuition, held a demonstration to protest the proposed
merger. The rally however was held at a place other than that specified in the school permit and
continued longer than the time allowed. The protest, moreover, disturbed the classes and caused
the stoppage of the work of non-academic personnel. For the illegal assembly, the university
suspended the students for one year. In affirming the students' rights to peaceable assembly and
free speech, the Court through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US
Supreme Court in Tinker v. Des Moines School District.48

Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to
do so. They enjoy like the rest of the citizens the freedom to express their views and
communicate their thoughts to those disposed to listen in gatherings such as was held in this
case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines
Community School District, 'shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.' While, therefore, the authority of educational institutions
over the conduct of students must be recognized, it cannot go so far as to be violative of
constitutional safeguards. On a more specific level there is persuasive force to this Fortas
opinion. "The principal use to which the schools are dedicated is to accommodate students
during prescribed hours for the purpose of certain types of activities. Among those activities
is personal intercommunication among the students. This is not only inevitable part of the
educational process. A student's rights, therefore, do not embrace merely the classroom
hours. When he is in the cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without 'materially and substantially interfering with the
requirements of appropriate discipline in the operation of the school' and without colliding
with the rights of others. . . . But conduct by the student, in class or out of it, which for any
reason - whether it stems from time, place, or type of behavior - materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech.49

The Malabanan ruling was followed in Villar vs. Technological Institute of the Philippines,50 Arreza vs.
Gregorio Araneta University Foundation,51 and Non vs. Dames II.52

The right of the students to free speech in school premises, however, is not absolute. The right to
free speech must always be applied in light of the special characteristics of the school
environment.53 Thus, while we upheld the right of the students to free expression in these cases, we
did not rule out disciplinary action by the school for "conduct by the student, in class or out of it,
which for any reason - whether it stems from time, place, or type of behavior - which materially
disrupts classwork or involves substantial disorder or invasion of the rights of others."54 Thus,
in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the speeches by the student
leaders. That there would be a vigorous presentation of view opposed to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture was to be expected.
There was no concealment of the fact that they were against such a move as it confronted
them with a serious problem ("isang malaking suliranin.") They believed that such a merger
would result in the increase in tuition fees, an additional headache for their parents ("isa na
naman sakit sa ulo ng ating mga magulang.") If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances extremely critical at times, even vitriolic,
were let loose, that is quite understandable. Student leaders are hardly the timid, different
types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally
they speak in the guarded and judicious language of the academe. At any rate, even a
sympathetic audience is not disposed to accord full credence to their fiery exhortations. They
take into account the excitement of the occasion, the propensity of speakers to exaggerate,
the exuberance of youth. They may give the speakers the benefit of their applause, but with
the activity taking place in the school premises and during the daytime, no clear and present
danger of public disorder is discernible. This is without prejudice to the taking of disciplinary
action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."55

It is in the light of this standard that we read Section 7 of the Campus Journalism Act. Provisions of
law should be construed in harmony with those of the Constitution; acts of the legislature should be
construed, wherever possible, in a manner that would avoid their conflicting with the fundamental
law.56 A statute should not be given a broad construction if its validity can be saved by a narrower
one.57 Thus, Section 7 should be read in a manner as not to infringe upon the school's right to
discipline its students. At the same time, however, we should not construe said provision as to
unduly restrict the right of the students to free speech. Consistent with jurisprudence, we read
Section 7 of the Campus Journalism Act to mean that the school cannot suspend or expel a student
solely on the basis of the articles he or she has written, except when such article materially disrupt
class work or involve substantial disorder or invasion of the rights of others.

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against
respondent students becomes self-evident. The power of the school to investigate is an adjunct of its
power to suspend or expel. It is a necessary corollary to the enforcement of rules and regulations
and the maintenance of a safe and orderly educational environment conducive to learning.58 That
power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions
of higher learning guaranteed by the Constitution. We therefore rule that Miriam College has the
authority to hear and decide the cases filed against respondent students. 1âwphi1.nêt

WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner
Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has long
lapsed.

SO ORDERED.

Footnotes

1
Rollo, p. 66.
2
CA Rollo, pp. 41-44.

3
Jasper Briones, Editor-in-Chief; Jerome Gomez, Associate Editor, Deborah Ligon, Business
Manager; Imelda Hilario, News Editor Elizabeth Valdezco, Lay-Out Editor; Jose Mari Ramos,
Art Editor; Camille Portugal, Asst. Art Editor; Joel Tan, Photo Editor; Gerald Gary Renacido,
a member of the literary staff; and Daphne Cowper, Asst. Literary Editor.

4
CA Rollo, p. 59.

5
Id., at 60.

6
Id., at 62.

7
Rollo, pp. 19-20.

8
CA Rollo, p. 29.

9
Id., at 48-49.

10
Rollo, p. 89-90.

11
Docketed herein as G.R. No. 119027.

12
CA Rollo, p. 76.

13
Id., at 78.

14
Rollo, p. 24.

15
Golangco vs. Court of Appeals, 283 SCRA 493 (1997).

Cagayan de Oro City Landless Residents Asso., Inc. vs. Court of Appeals, 254 SCRA 220
16

(1996).

17
Asset Privatization Trust vs. Court of Appeals, 214 SCRA 400 (1992).

18
Carbungco vs. Court of Appeals, 181 SCRA 313 (1990).

19
Board of Transportation vs. Castro, 125 SCRA 411 (1983).

20
Johannesburg Packaging Corporation vs. Court of Appeals, 216 SCRA 439 (1992).

Under §5, Rule 58 of the present Rules of Court, a TRO issued by the Court of Appeals or
21

a member thereof shall be effective for sixty (60) days from notice to the party or person
sought to be enjoined.

22
Philippine National Bank vs. Court of Appeals and Romeo Barilea, 291 SCRA 271 (1998).

23
4 C.J.S. Appeal and Error §40.
24
Rollo, p. 125. In their Rejoinder, private respondents attached a "Joint Affidavit" stating:

xxx

4. That the claim of the petitioner, that we have not employed the TRO issued by the
Court of Appeals in filing for reinstatement or gaining entry into the campus
premises, is completely false and misleading. The truth of the matter being that
members of our group had initially tried to gain admittance into the school premises
but were barred from doing so by the guards who claimed it was for security reasons,
as mandated on them [sic] by the petitioners.

xxx

6. Except for the two [referring to Jose Mari Ramos and Elizabeth Valdezco], we
have stopped schooling and we are waiting for the case to be resolved to continue
our studies and finish the courses we started. We need only a year or two to do it.

xxx

8. We respectfully petition the court to admit this affidavit as proof against the
petitioners’ [sic] false manifestation. We hope that the facts we have provided will
help clear the cloud of confusion intentionally raised by the petitioners through their
allegations. We also hope that they be held in contempt of their attempt to
intentionally mislead the honorable court. And we also pray that the court grant the
speedy resolution of the case in our favor, thereby facilitating in [sic] our long-awaited
vindication.

On October 21, 1998, the Court resolved to require the petitioner to file a Sur-
Rejoinder within ten (10) days from notice, directing the petitioner to address in
particular the above statements of private respondents in their "Joint Affidavit."
Petitioner, however, never filed the required Sur-Rejoinder and we resolve to
dispense with the same.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-31687 February 26, 1970

NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.

RESOLUTION

GENTLEMEN:

Quoted hereunder, for your information, is a resolution of this Court of even date:

"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and
arguments of the parties, issued the following Resolution:

Without prejudice to a more extended opinion and taking into account the following considerations:

That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;

That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable
discretion to determine or specify the streets or public places to be used for the assembly in order to
secure convenient use thereof by others and provide adequate and proper policing to minimize the
risks of disorder and maintain public safety and order;

That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies
at Plaza Miranda during Saturdays, Sundays and holidays when they would not cause unnecessarily
great disruption of the normal activities of the community and has further offered Sunken Gardens as
an alternative to Plaza Miranda as the site of the demonstration sought to be held this afternoon;

That experiences in connection with present assemblies and demonstrations do not warrant the
Court's disbelieving respondent Mayor's appraisal that a public rally at Plaza Miranda, as compared
to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of
public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such
assemblies, and petitioner has manifested that it has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is placed in
such a state of fear and tension that offices are closed early and employees dismissed, storefronts
boarded up, classes suspended, and transportation disrupted, to the general detriment of the public:

That civil rights and liberties can exist and be preserved only in an order society;
The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant
their application for permit unconditionally;

The Court resolved to DENY the writ prayed for and to dismiss the petition.

Separate Opinions

VILLAMOR, J., concurring:

The right to freedom of assembly is not denied; but this right is neither unlimited nor absolute. It is
not correct to say that the Mayor has refused to grant the permit applied for; he offered an alternative
which, in my opinion, is not unreasonable. There being no arbitrary refusal to grant permit, petitioner
is not entitled to the writ.

CASTRO and FERNANDO, JJ., dissenting:

Two members of the Court, Castro and Fernando, find themselves unable to concur with their
brethren and would vote to grant the petition. The right to freedom of assembly while not unlimited is
entitled to be accorded the utmost deference and respect. If respondent Mayor premised his refusal
to grant the permit as sought by petitioner on a clear showing that he was so empowered under the
criteria supplied by Primicias W. Fugoso, then this petition should not prosper as petitioner himself
did invoke such authority. The grounds for his refusal are however, set forth thus in his letter of
February 24, 1970 addressed to petitioner: "In the greater interest of the general public, and in order
not to unduly disturb the life of the community, this Office, guided by a lesson gained from the events
of the past few weeks, has temporarily adopted the policy of not issuing any permit for the use of
Plaza Miranda for rallies or demonstrations during week days."1 They do not, in the opinion of the
above two justices, meet the standard of the Primicias ruling. Under the circumstances, the effect is one
of prior restraint of a constitutional right. This is not allowable. An excerpt from a 1969 American Supreme
Court decision is persuasive. Thus: "For in deciding whether or not to withhold a permit, the members of
the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health,
decency, good order, morals or convenience.' This ordinance as it was written, therefore, fell squarely
within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting
the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective,
and definite standards to guide the licensing authority, is unconstitutional."2 This is without prejudice to a
more extended opinion being written later.

Footnotes

1. Annex B, Petition.
2. Shuttlesworth v. Birmingham, 22 L. Ed. 2d 162, 167 (1969).
3. Republic of the Philippines
SUPREME COURT
Manila
4. EN BANC
5. G.R. No. L-1800 January 27, 1948
6. CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority
Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
7. Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.
8. FERIA, J.:
9. This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig
manager of the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of
Manila, to compel the latter to issue a permit for the holding of a public meeting at Plaza
Miranda on Sunday afternoon, November 16, 1947, for the purpose of petitioning the
government for redress to grievances on the groun that the respondent refused to grant such
permit. Due to urgency of the case, this Court, after mature deliberation, issued a writ
of mandamus, as prayed for in the petition of November 15, 1947, without prejudice to
writing later an extended and reasoned decision.
10. The right of freedom of speech and to peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of the people recognized and
guaranteed by the Constitutions of democratic countries. But it a casettled principle growing
out of the nature of well-ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, not injurious to the rights of the community or society. The power
to regulate the exercise of such and other constitutional rights is termed the sovereign
"police power" which is the power to prescribe regulations, to promote the health, morals,
peace, education, good order or safety, and general welfare of the people. This sovereign
police power is exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may be delegated to
political subdivisions, such as towns, municipalities, and cities authorizing their legislative
bodies, called municipal and city councils to enact ordinances for the purpose.
11. The Philippine legislature has delegated the exercise of the police power to the Municipal
Board of the City of Manila, which according to section 2439 of the Administrative Code is
the legislative body of the City. Section 2444 of the same Code grants the Municipal Board,
among others, the following legislative power, to wit: "(p) to provide for the prohibition and
suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use
of streets, avenues ... parks, cemeteries and other public places" and "for the abatement of
nuances in the same," and "(ee) to enact all ordinances it may deem necessary and proper
for sanitation and safety, the furtherance of prosperity and the promotion of morality, peace,
good order, comfort, convenience, and general welfare of the city and its inhabitants."
12. Under the above delegated power, the Municipal Board of the City of Manila, enacted
sections 844 and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense
against public peace, and section 1262 of the same Revised Ordinance penalizes as a
misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the
peace or excite a riot; or collect with other persons in a body or crowd for any unlawful
purpose; or disturb or disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:
13. "SEC. 1119 Free for use of public — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or exercise during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."
14. As there is no express and separate provision in the Revised Ordinance of the City
regulating the holding of public meeting or assembly at any street or public places, the
provisions of saif section 1119 regarding the holding of any parade or procession in any
street or public paces may be applied by analogy to meeting and assembly in any street or
public places.
15. Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila
is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a
lawful assembly or meeting, parade, or procession in the streets and other public places of
the City of Manila; and the other is that the applicant has the right to a permit which shall be
granted by the Mayor, subject only to the latter's reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with the view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to minimize the risk of disorder.
16. After a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is construe the provisions of the said ordinance to mean that it does not
confer upon the Mayor the power to refuse to grant the permit, but only the discretion, in
issuing the permit, to determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held.
17. Our conclusions find support in the decision in the case of Willis Cox vs. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145,
section 2, providing that "no parade or procession upon any ground abutting thereon, shall
be permitted unless a special license therefor shall first be obtained from the select men of
the town or from licensing committee," was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfetted discretion to refuse to grant
the license, and held valid. And the Supreme Court of the United States in its decision (1941)
penned by Chief Justice Hughes firming the judgement of the State Supreme Court, held that
" a statute requiring pewrsons using the public streets for a parade or procession to procure
a special license therefor from the local authorities is not an unconstitutional abridgement of
the rights of assembly or a freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to
a consideration, the time, place, and manner of the parade and procession, with a view to
conserving the public convenience and of affording an opportunity to provide proper policing
and are not invested with arbitrary discretion to issue or refuse license, ... ."
18. We can not adopt the alternative construction or constru the ordinance under consideration
as conferring upon the Mayor power to grant or refuse to grant the permit, which would be
tantamount to authorizing him to prohibit the use of the streets and other public places for
holding of meetings, parades or processions, because such a construction would make the
ordinance invalid and void or violative of the constitutional limitations. As the Municipal
Boards is empowered only to regulate the use of streets, parks, and the other public places,
and the word "regulate," as used in section 2444 of the Revised Administrative Code, means
and includes the power to control, to govern, and to restrain, but can not be construed a
synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41
Phil., 103), the Municipal Board can not grant the Mayor a power that it does not have.
Besides, the powers and duties of the Mayor as the Chief Executive of the City are executive
and one of them is "to comply with and enforce and give the necessary orders for the faithful
performance and execution of laws and ordinances" (section 2434 [b] of the Revised
Administrative Code), the ligislative police power of the Municipal Board to enact ordinances
regulating reasonably the excercise of the fundamental personal rights of the citizens in the
streets and other public places, can not be delgated to the Mayor or any other officer by
conferring upon him unregulated discretion or without laying down rules to guide and control
his action by which its impartial execution can be secured or partiality and oppression
prevented.
19. In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that,
under Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use
of public streets, the council has no power to ordain that no processions shall be allowed
upon the streets until a permit shall be obtained from the superintendent of police, leaving
the issuance of such permits to his discretion, since the powers conferred on the council
cannot be delegated by them.
20. The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54
N.W., 1104, held the following:
21. "The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also,
in substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under it,
when there was nothing in the ordinance to guide or cintrol his action, and it was held void
because "it lays down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other
improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a legal discretion, to be
exercised within the limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a petty tyrant."
22. In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or
persons, or associations or organizations shall march, parade, ride or drive, in ou upon or
through the public streets of the City of Grand Rapids with musical instrument, banners,
flags, ... without first having obtained the consent of the mayor or common council of said
city;" was held by the Supreme Court of Michigan to be unreasonable and void. Said
Supreme Court in the course of the decision held:
23. ". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it
is not plainly unconstitutional, as only conferring such power over the subjects referred to as
will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under the constitution than under the
common law."
24. "It is quite possible that some things have a greater tendency to produce danger and
disorder in cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogther can be granted at all. . . . ."
25. "It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day or
reasonable hours at night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social demonstrations are resorted to for
the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce
some effect on the public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in furthering them. ... When
people assemble in riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors become punishable. . . ."
26. "It is only when political, religious, social, or other demonstrations create public disturbances,
or operate as a nuisance, or create or manifestly threaten some tangible public or private
mischief, that the law interferes."
27. "This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."
28. In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city
ordinance which made it unlawful for any person, society or club, or association of any kind,
to parade any of the streets, with flags, banners, or transparencies, drums, horns, or other
musical instruments, without the permission of the city council first had and obtained. The
appellants were members of the Salvation Army, and were prosecuted for a violation of the
ordinance, and the court in holding the ordinance invalid said, "Ordinances to be valid must
be reasonable; they must not be oppressive; they must be fair and impartial; they must not
be so framed as to allow their enforcement to rest on official discretion ... Ever since the
landing of the Pilgrims from the Mayflower the right to assemble and worship accordingto the
dictates of one's conscience, and the right to parade in a peaceable manner and for a lawful
purpose, have been fostered and regarded as among the fundamental rights of a free
people. The spirit of our free institutions allows great latitude in public parades and
emonstrations whether religious or political ... If this ordinance is held valid, then may the city
council shut off the parades of those whose nations do not suit their views and tastes in
politics or religion, and permit like parades of those whose nations do. When men in authority
are permitted in their discretion to exercise power so arbitrary, liberty is subverted, and the
spirit of of our free institutions violated. ... Where the granting of the permit is left to the
unregulated discretion of a small body of city eldermen, the ordinance cannot be other than
partial and discriminating in its practical operation. The law abhors partiality and
discrimination. ... (19 L.R.A., p. 861)
29. In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme
Court of Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of
Walsenburg, which provides: "That it shall be unlawful for any person or persons or
association to use the street of the City of Walsenburg, Colorado for any parade, procession
or assemblage without first obtaining a permit from the Chief of Police of the City of
Walsenburg so to do," held the following:
30. "[1] The power of municipalities, under our state law, to regulate the use of public streets is
conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of
the United States to use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the general, be abridged or
denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S.
Ct., 954, 964; 83 Law, ed., 1423.
31. [2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S.
Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The
authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good order
upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all,
it cannot be disregarded by the attempted excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
excercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58
S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."
32. [4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of the municipal corporation to say who
shall, who shall not, be accorded the privilege of parading on its public streets. No standard
of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief
of police may for any reason which he may entertain arbitrarily deny this privelege to any
group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
33. "In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."
34. The Supreme Court of the United States in Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring
the obtaining of a permit for a public assembly in or upon the public streets, highways, public
parks, or public buildings of the city and authorizing the director of public safety, for the
purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a
permit when after investigation of all the facts and circumstances pertinent to the application
he believes it to be proper to refuse to issue a permit, is not a valid exercise of the police
power. Said Court in the course of its opinion in support of the conclusion said:
35. ". . . Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.
36. "We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."
37. Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which
provides that the Mayor shall have the power to grant and refuse municipal licenses or
permits of all classes, cannot be cited as an authority for the Mayor to deny the application of
the petitioner, for the simple reason that said general power is predicated upon the
ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the
Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of
Manila. It is not a specific or substantive power independent from the corresponding
municipal ordinances which the Mayor, as Chief Executive of the City, is required to enforce
under the same section 2434. Moreover "one of the settled maxims in constitutional law is
that the power conferred upon the Legislature to make laws cannot be delegated by that
department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of
streets and other public places has been delegated or rather conferred by the Legislature
upon the Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be
presumed that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m) the same power, specially if we take into account that its exercise may be
in conflict with the exercise of the same power by the Municipal Board.
38. Besides, assuming arguendo that the Legislature has the power to confer, and in fact has
conferred, upon the Mayor the power to grant or refuse licenses and permits of all classes,
independent from ordinances enacted by the Municipal Board on the matter, and the
provisions of section 2444 (u) of the same Code and of section 1119 of the Revised
Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power
to grant or refuse a permit for the use of streets and other public places for processions,
parades, or meetings, would be null and void, for the same reasons stated in the decisions in
the cases above quoted, specially in Willis Cox vs. New Hampshire, supra, wherein the
question involved was also the validity of a similar statute of New Hamsphire. Because the
same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer
are applicable to a law or statute that confers unlimited power to any officer either of the
municipal or state governments. Under our democratic system of government no such
unlimited power may be validly granted to any officer of the government, except perhaps in
cases of national emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The
discretion with which the council is vested is a legal discretion to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon any city officer an
arbitrary authority making in its exercise a petty tyrant."
39. It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative
Code apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil.,
255- 261, but evidently the quotation of said provision was made by the writer of the decision
under a mistaken conception of its purview and is an obiter dictum, for it was not necessary
for the decision rendered. The popular meeting or assemblage intended to be held therein by
the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor
of the City of Manila had no power to grant the permit applied for. On the contrary, had the
meeting been held, it was his duty to have the promoters thereof prosecuted for violation of
section 844, which is punishable as misdemeanor by section 1262 of the Revised
Ordinances of the City of Manila. For, according to the decision, "the doctrine and principles
advocated and urged in the Constitution and by-laws of the said Communist Party of the
Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite
rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."
40. The reason alleged by the respondent in his defense for refusing the permit is, "that there is
a reasonable ground to believe, basing upon previous utterances and upon the fact that
passions, specially on the part of the losing groups, remains bitter and high, that similar
speeches will be delivered tending to undermine the faith and confidence of the people in
their government, and in the duly constituted authorities, which might threaten breaches of
the peace and a disruption of public order." As the request of the petition was for a permit "to
hold a peaceful public meeting," and there is no denial of that fact or any doubt that it was to
be a lawful assemblage, the reason given for the refusal of the permit can not be given any
consideration. As stated in the portion of the decision in Hague vs. Committee on Industrial
Organization, supra, "It does not make comfort and convenience in the use of streets or
parks the standard of official action. It enables the Director of Safety to refuse the permit on
his mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage.
It can thus, as the record discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we make our own, said
by Mr. Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law.
ed.), 1105-1107:
41. "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one . . .
42. "Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .
43. "Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)
44. In view of all the foregoing, the petition for mandamus is granted and, there appearing no
reasonable objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for,
the respondent is ordered to issue the corresponding permit, as requested. So ordered.
45. Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.
46.

47. Separate Opinions


48. PARAS, J., concurring:
49. The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section
4, amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has
discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw,
57 Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said:
50. "It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and
snare and the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor."
51. The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista
Party in the House of Representatives; he was the chief campaigner of the said party in the
last elections. As the petition comes from a responsible party, in contrast to Evangelista's
Communist Party which was considered subversive, I believe that the fear which caused the
Mayor to deny it was not well founded and his action was accordingly far from being a sound
exercise of his discretion.
52.

53. BRIONES, M., conforme:


54. En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P.
Primicias, director general de campaña de las minorias coaligadas en las ultimas elecciones
y "Floor Leader" de dichas minorias en la Camara de Representantes, solicito del Alcalde de
Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin
publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta
la 1:00 a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en
la comunicacion licencia para usar la plataforma ya levantada en dicha Plaza.
55. El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso
tanto para la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de
que no se pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera
responsable del mantenimiento de la paz y orden durante la celebracion del mitin."
56. Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el
permiso concedido, expresandose los motivos de la revocacion en su carta de tal fecha
dirigida al Rep. Primicias.
57. "Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que despues de haber
leido los periodicos metropolitanos da esta mañana en que aparece que vuestro mitin va a
ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes
electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la
presente se revoca dicho permiso.
58. "Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran daño en dicho 'rally'
considerando que las pasiones todavia no se han calmado y la tension sigue alta como
resultado de la ultima contienda politica.
59. "Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las
universidades locales participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar
disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la
oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes
matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una
vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines
del mitin tal como han sido anunciados en los periodicos mencionados.
60. "Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para
este proceder toda vez que los resultados todavia no han sido oficialmente anunciados.
61. "Por tanto — termina el Alcalde su orden revocatoria — la accion de esta oficina se toma en
interes del orden publico y para prevenir la perturbacion de la paz en Manila."
62. De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que
expida inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador
General para que investigue la fase criminal del caso y formule la accion que justifiquen las
circunstancias.
63. Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los
abogados de ambas partes ante esta Corte en sus informes orales.1
64. El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la
Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la
libertad de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y
dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al posible
aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual
dispone que "la pena de prision correccional en su periodo minimo, se impondra al
funcionario publico o empleado que, sin fundamento legal, prohibiere o interrumpiere una
reunion pacifica, o disolviere la misma."
65. La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten
como guardian legal de las plazas, calles y demas lugares publicos. Se alega que como
Alcalde de la Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la
Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o reunion, de
conformidad con las exigencias del interes general tal como el las interpreta.
Especificamente se citan dos disposiciones, a saber: el articulo 2434 (b), inciso (m) del
Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de la Compilacion de las
Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo aludido del
Codigo Administrativo Revisado se lee como sigue:
66. xxx xxx xxx
67. "(m) To grant and refuse municipal license or permits of all classes and to revoke the same
for violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinance are being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted is carried on, or for
any other good reason of general interest." La ordenanza municipal indicada reza lo
siguiente:
68. La ordenanza municipal indicada reza lo siguiente:
69. "SEC. 1119. Free for use of public. — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by the
ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises
during the celebration of national holidays in any streets or public places of the city and on
the patron saint day of any district in question, may be permitted by means of a permit issued
by the Mayor, who shall determine the streets or public places, or portions thereof, where
such athletic games, sports, or exercises may be held: And provided, further, That the
holding of any parade or procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor, who shall, on every occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."
70. Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que
habla el Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la
peticion del recurrente ni en ningun documenmento o manifestacion verbal atribuida al
mismo, sino solamente en las columnas informativas de la prensa metropolitana. El
recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad
de telegramas y comunicaciones que como jefe de campaña de las oposiciones habia
recibido de varias partes del archipielago denunciando tremendas anomalias, escandalosos
fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos en las elecciones de 11
de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su
pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con
relacion a los hechos consumados urgir la pronta persecucion y castigo inmediato de los
culpables y malhechores. De esto resulta evidente que el objeto del mitin era
completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el
recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de
utilizar el mitin para derribar violentamente al presente gobierno, o provocar una rebelion o
siquiera un motin. En realidad, teniendo en cuenta las serias responsabilidades del
recurrente como jefe de campaña electoral de las minorias aliadas y como "Floor Leader" en
el Congreso de dichas minorias, parecia que esta consideracion debia pesar decisivamente
en favor de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos
conscientes, responsables y amantes de la ley y del orden.2
71. Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las
Ordenanzas Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino
solo la procesion o parada por las calles. Esto demuestra, se sostiene, que cuando se trata
de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el Alcalde
no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a
este extremo. Creo no debe haber inconveniente en admitir que el mitin esta incluido en la
reglamentacion, por razones de conveniencia publica. Verbigracia, es perfectamente licito
denegar el permiso para celebrar un mitin en una plaza publica en un dia y una hora
determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar a
otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los
ingredientes que entran en la motivacion de la facultad reguladora del Estado o del
municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo, es
tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el
movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones
de comfort y conveniencia publica son por lo regular la base, el leit-motif de toda ley u
ordenanza encaminada a reglamentar el uso de parques, plazas y calles. Desde luego que
la regla no excluye la consideracion a veces de la paz y del buen orden, pero mas adelante
veremos que este ultimo, para que sea atendible, requiere que exista una situacion de
peligro verdadero, positivo, real, claro, inminente y substancial. La simple conjetura, la mera
aprension, el temor mas o menos exagerado de que el mitin, asamblea o reunion pueda ser
motivo de desorden o perturbacion de la paz no es motivo bastante para denegar el
permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los
ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre
ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos
agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los
parques, plazas y calles.
72. La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla.
¿Tenia razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora
bajo los terminos de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre
todo, bajo el precepto categorico, terminante, expresado en el inciso 8, seccion 1, del
Articulo III de la Constitucion? ¿No constituye la denegacion del permiso una seria
conculcacion de ciertos privilegios fundamentales garantizados por la Constitucion al
ciudadano y al pueblo?
73. Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama
"all-pervading power of the state to regulate," temiendo que el mitin solicitado iba a poner en
peligro la paz y el orden publico en Manila. No se fundo la denegacion en razones de
"comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un
conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura,
en un mero temor o aprension — la aprension de que, dado el tremendo hervor de los
animos resultante de una lucha electoral harto reñida y apasionada, un discurso violento,
una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. La cuestion
en orden es la siguiente: ¿se puede anular o siquiera poner en suspenso el derecho
fundamentalisimo de reunion o asamblea pacifica, garantizado por la Constitucion, por razon
de esta clase de conjetura, temor o aprension? Es obvio que la contestacion tiene que ser
decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria
practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias
constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales
privilegios y garantias hubiera de depender de las suspicacias, temores, aprensiones, o
hasta humor del gobernante, uno podria facilmente imaginar los resultados desastrosos de
semejante proposicion; un partido mayoritario dirigido por caudillos y liders sin escrupulos y
sin conciencia podria facilmente anular todas las libertades, atropellar todos los derechos
incluso los mas sagrados, ahogar todo movimiento legitimo de protesta o peticion,
estrangular, en una palabra, a las minorias, las cuales — como sabe todo estudiante de
ciencia politica — en el juego y equilibrio de fuerzas que integran el sistema democratico
son tan indispensables como las mayorias. ¿Que es lo que todavia podria detener a un
partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de
sus adversarios si se le dejara abiertas las puertas para que, invocando probables peligros o
amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o
poner en suspenso los privilegios y garantias constitucionales? ¿No seria esto retornar a los
dias de aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico
de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto
pronunciamiento: "I am the only Constitution around here"? Es inconcebible que la facultad
de reglamentar o el llamado poder de policia deba interpretarse en el sentido de justificar y
autorizar la anulacion de un derecho, privilegio o garantia constitucional. Sin embargo, tal
seria el resultado si en nombre de un concepto tan vago y tan elastico como es el "interes
general" se permitiera in terdecir la libertad de la palabra, de la cual los derechos de reunion
y de peticion son nada mas que complemento logico y necesario. Una mujer famosa de
Francia 3 en la epoca del terror, momentos antes de subir al cadalso y colocar su hermoso
cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion: "¡Libertad, cuantos
crimenes se cometen en tu nombre!" Si se denegara el presente recurso legitimando la
accion del recurrido y consiguientemente autorizando la supresion de los mitines so pretexto
de que la paz y el orden publico corren peligro con ellos, un desengañado de la democracia
en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica
exclamacion de la siguiente manera: "¡Interes general, paz, orden publico, cuantos
atentados se cometen en vuestro nombre contra la libertad!"
74. El consenso general de las autoridades en los paises constitucionalmente regidos como
Filipinas, particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los
parques, plazas y calles para el intercambio de impresiones y puntos de vista sobre
cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que se puede
regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague
vs. Committee for Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y
decidido en 1938, ha venido a ser clasico en la jurisprudencia americana sobre casos del
mismo tipo que el que nos ocupa. La formidable asociacion obrera Committee for Industrial
Organization conocida mas popularmente por la famosa abreviatura CIO, planteo una queja
ante los tribunales de New Jersey contra las autoridades de Jersey City, (a) atacando, por
fundamentos constitucionales, la validez de una ordenanza municipal que regulaba y
restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y medios
en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades.
75. Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar
mitines y asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos
de vista sobre la "National Labor Relations Act." Las autoridades de la ciudad, comenzando
por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de New Jersey,
rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa
alegacion de que los miembros de la organizacion obrera solicitante eran comunistas y del
orden publico corria peligro de grave perturbacion; es decir, casi, casi la misma alegacion
que en el presente caso. La denegacion de la licencia se fundaba en una ordenanza
municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea
pacifica.
76. Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los
metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO
permitiendole celebrar los mitines solicitados. Elevado el asunto en casacion e la Corte
Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre otros
pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles,
parques y plazas, desde tiempo inmemorial los mismos siempre se han considerado como
un fideicomiso para uso del publico, y desde tiempos remotos que la memoria no alcanza se
han usado siempre para fines de reunion y de intercambio de impresiones y puntos de vista
entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que el uso
de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una
parte importante y esencial de los privilegios, inmunidades, derechos y libertades de los
ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las calles,
plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones
nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo,
y debe ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia
con la paz y el buen orden; pero no puede ser coartado o denegado so pretexto y forma de
regulacion; (d) que el tribunal inferior estuvo acertado al declarar invalida la ordenanza en su
faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la norma y
patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el
permiso en virtud de su simple opinion de que la denegacion es para prevenir motines,
trastornos o reuniones turbulentas y desordenadas; (e) que, de esta manera, y conforme lo
demuestra el record, la denegacion puede ser utilizada como instrumento para la supresion
arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la prohibicion
de hablar producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse mano
de la supresion official del privilegio para ahorrarse el trabajo y el deber de mantener el
orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo literalmente la
fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede hacerse de
la supresion official incontrolada del privilegio un sustituto del deber de mantener el orden en
relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina:
77. "5. Regulation of parks and streets. — "Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of the citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not in the guise of regulation be abridged
or denied. We think the court below was right in holding the ordinance . . . void upon its face.
It does not make comfort or convenience in the use of streets or parks the standard of official
action. It enables the Director of Safety to refuse a permit on his mere opinion that such
refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free expression of views on
national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities.
But uncontrolled official suppression of the privilege cannot be made a substitute for the duty
to maintain order in connection with the exercise of the right." (Hague vs. Committee for
Industrial Organization, 307 U. S. 496, 515-516.)
78. Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra
Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde
recurrido. Pero la similitud es solo en el hecho de que el entonces Alcalde D. Tomas
Earnshaw tambien revoco el permiso previamente concedido al partido comunista que
representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias
en ambos casos son enteramente diferentes. El Alcalde Earnshaw revoco el permiso
despues de una minuciosa investigacion en que se habian encontrado pruebas indubitables
no solo de que en los estatutos y documentos del partido comunista se preconizaba como
uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas — gobierno
que ellos calificaban de imperialista y capitalistico — sino que de hecho en mitines
celebrados con anterioridad los comunistas habian pronunciado discursos clara y
positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para
liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La
accion, por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero
temor o aprension, sino en la existencia de un peligro inminente, claro, real, sustantivo —
ingrediente unico y excepcionalisimo que permite una salvedad suspensiva singularisima en
el ejercicio de los privilegios constitucionales de que se trata.
79. ¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se
ha hecho la mas pequeña insinuacion de que las minorias coaligadas en cuyo nombre se ha
pedido la celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por
metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio
francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial
de que esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas
presentando candidatos para todos los cargos — nacionales, provinciales y locales, y de
que su candidatura senatorial triunfo en 21 provincias de las 50 que componen el mapa
electoral, y en 5 ciudades con carta especial de las 8 que existen, incluyendose entre dichas
5 la de Manila, capital del archipielago.
80. Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta
en el caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no
la bala, como el instrumento normal y democratico para cambiar los gobiernos y las
administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las ultimas
elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los
medios de que disponia frente a la natural superioridad del partido gobernante, lo
demuestra, repito, la circunstancia de que despues de hechas las votaciones y mientras se
estaban contando los votos y cuando vio que, segun ella, se habia escamoteado o se
estaba escamoteando la voluntad popular en varias partes mediante engaños, abusos y
anomalias de diferentes clases, no busco la violencia ni recurrio a la accion directa para
hallar remedio a sus agravios o vengarlos, sino que trato de cobijarse bajo la Constitucion
reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus quejas y
recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con
todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia
representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos — el
recurrente en este caso, cuya solvencia moral y politica esta doblemente garantida por su
condicion de lider de las minorias en el Congreso y jefe de campaña de las mismas en las
pasadas elecciones. ¿Que mejor prueba de legalidad y de propositos pacificos y
ordenados?
81. Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado,
el camino angosto de la represion, de una politica de fuerza y de cordon ferreo policiaco; por
otro lado, la amplia avenida de la libertad, una politica que consista en abrir espitas y
valvulas por donde pueda extravasarse no ya la protesta sino inclusive la indignacion del
pueblo, previniendo de esta manera que los vapores mal reprimidos hagan estallar la
caldera, o que la desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a
los azares de una cruenta discordia civil. Creo que entre ambas politicas la eleccion no es
dudosa.
82. Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia
concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en
diferentes sitios de Manila; que en dichos mitines se habian pronunciado discursos
altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios
funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de
Filipinas, el Presidente del Senado y el mismo recurrido, suscitandose contra ellos la
animadversion y el desprecio del pueblo mediante la acusacion de que han estado
malversando propiedades y fondos publicos con grave detrimento del bienestar e interes
generales; que, dado este antecedente, habia motivo razonable para creer que semejantes
discursos se pronunciarian de nuevo, minandose de tal manera la fe y la confianza del
pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias
perturbaciones, teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo
de parte de los grupos perdidosos y derrotados.
83. Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui
un regimen de previa censura, el cual no solo es extraño sino que es enteramente repulsivo
e incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion,
es de represion y castigo sobre la base de los hechos consumados. En otras palabras, es
un sistema que permite el amplio juego de la libertad, exigiendo, sin embargo, estricta
cuenta al que abusase de ella. Este es el espiritu que informa nuestras leyes que castigan
criminalmente la calumnia, la difamacion oral y escrita, y otros delitos semejantes. Y
parafraseando lo dicho en el citado asunto de Hague vs. Committee for Industrial
Organization, la supresion incontrolada del privilegio constitucional no puede utilizarse como
sustituto de la operacion de dichas leyes.
84. Se temia — dice el recurrido en su contestacion — que la probable virulencia de los
discursos y la fuerte tension de los animos pudiesen alterar seriamente la paz y el orden
publico. Pero — cabe preguntar — ¿de cuando aca la libertad, la democracia no ha sido un
peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la democracia
no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus
libros inmortales una hermosa imagen que es perfectamente aplicable a la democracia.
Puede decirse que esta es como la mar: serena, inmovil, sin siquiera ningun rizo que
arrugue su superficie, cuando no lo agita ningun viento. Pero cuando sopla el huracan —
lease, Vientos de la Libertad — sus aguas se alborotan, sus olas se encrespan, y entonces
resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se
desencadenan liberrimamente.
85. ¿Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden
encresparse y enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia:
hay que tomarla con todos sus inconvenientes, con todos sus peligros. Los que temen la
libertad no merecen vivirla. La democracia no es para pusilanimes. Menos cuando de la
pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo.
Porque entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo:
los Zares de Rusia. Y ya se sabe como terminaron.
86. El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y
democracia y previno el temor a ellos con las luminosas observaciones que se transcriben a
continuacion, expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440
(1907), a saber:
87. "Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para
protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos
siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el
resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los
directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal
agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una
multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y
tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion
de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas
propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas
severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los
representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden
debe averiguarse quienes son los culpables y castigarseles por este motivo, pero debe
procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la
sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso."
88. En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de
los discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la
oposicion antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa.
Como se dice mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra
decision en el presente asunto tampoco ocurrio nada. ¿Que demuestra esto? Que los
temores eran exagerados, por no llamarlos fantasticos; que el pueblo de Manila, con su
cordura, tolerancia y amplitud de criterio, probo ser superior a las aprensiones, temores y
suspicacias de sus gobernantes.
89. La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las
garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes — el
de reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el
corazon y alma de nuestro pueblo para ser tratados negligentemente, con un simple
encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros
antepasados en sus luchas contra la opresion y el despotismo. Fueron esas libertades la
base del programa politico de los laborantes precursores del '96. Fueron esas libertades las
que cristalizaron en la carta organizacional de Bonifacio, generando luego el famoso Grito
de Balintawak. Fueron esas libertades las que despues informaron los documentos politicos
de Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de
colaboracion filipino — americana, fueron esas mismas libertades la esencia de nuestras
instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui
establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los
atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados
Unidos contra Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por
transcribirlos ad verbatim a continuacion:
90. "Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la
palabra, tal y como la han defendido siempre todos los paises democraticos, era
desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa
de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Años' (paginas 62 y
siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo:
91. "El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la
prensa libre en Filipinas, y por crear diputados filipinos.
92. "Los patriotas filipinos que estaban en España, por medio de las columnas de La Solidaridad
y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la
'libertad de prensa, de cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La
Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos,
garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y
de peticion.
93. "Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una
reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe
ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el
derecho a la libertad.
94. "Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de
los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la
libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto,
no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del
Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de
1900, que sientan el siguiente inviolable principio:
95. "Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los
derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para
remedio de sus agravios."
96. "El Bill de Filipinas, o sea la Ley del Congreso de 1.° de Julio de 1902, y la Ley Jones, o sea
la Ley del Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de
las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son
extrañas para los estudiantes de derecho constitucional, porque estan calcadas de la
Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio
antes de otorgar su aprobacion a la Constitucion.
97. "Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe
olvidarse por un solo instante, de que las mencionadas garantias constituyen parte
integrante de la Ley Organica — La Constitucion — de las Islas Filipinas.
98. "Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera
palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de
aplicacion a los grandes casos constitucionales de Inglaterra y America. (Kepner vs. U. S.
[1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y ¿cuales son estos
principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre
aquellos estan los siguientes:
99. "Los intereses de la sociedad y la conservacion de un buen gobierno requieren una
discusion plena de los asuntos publicos. Completa libertad de comentar los actos de los
funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra.
La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que se
dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra
calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario
publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos
oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos.
Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es
menos que el Estado, debe esperarse que sobrelleve la critica en beneficio de la
comunidad. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios,
que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial — que cualesquiera o sobre
todas las dependencias del Gobierno — la opinion publica debe ser el constante manantial
de la libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason
vs. Walter, L. R. 4 Q. B., 73, Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R.
Carden, 5 Q. B. D., 1.)
100. Ahora que ya somos independientes es obvio que la republica no solo no ha de ser
menos celosa que la antigua colonia en la tenencia y conservacion de esas libertades, sino
que, por el contrario, tiene que ser muchisimo mas activa y militante. Obrar de otra manera
seria como borrar de una plumada nuestras mas preciosas conquistas en las jornadas mas
brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal;
Marcelo H. del Pilar, Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria,
en una palabra, como si de un golpe catastrofico se echara abajo la recia fabrica de la
democracia filipina que tanta sangre y tantos sacrificios ha costado a nuestro pueblo, y en
su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y
despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos
llegado a estas alturas, en la trabajosa ascension hacia la cumbre de nuestros destinos,
para permitir que ocurra esa tragedia.
101. No nos compete determinar el grado de certeza de los fraudes e irregularidades
electorales que la coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a
recabar del gobierno y del pueblo el propio y correspondiente remedio. Pudieran ser reales o
pudieran ser imaginarios, en todo o en parte. Pero de una cosa estamos absolutamente
seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la
base de un sufragio efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el
castillo, mejor todavia, el baluarte de la democracia. Suprimid eso, y la democracia resulta
una farsa.
102. Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser
reprimido, sino que debe ser alentado. Y para esto, en general para la salud de la republica,
no hay mejor profilaxis, no hay mejor higiene que la critica libre, la censura desembarazada.
Solamente se pueden corregir los abusos permitiendo que se denuncien publicamente sin
trabas sin miedo.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la
violencia.
103.

104. HILADO, J., dissenting:


105. Because the constitutional right of assembly and petition for redress of grievances
has been here invoked on behalf of petitioner, it has been considered doubly necessary to
expound at length the grounds of my dissent. We are all ardent advocates of this right,
whenever and wherever properly exercisable. But, in considering the legal problem here
presented serenely and dispassionately, as I had to, I arrived at a different conclusion from
that of the majority.
106. (a) Right not absolute but subject to regulation. — It should be recognized that this
right is not absolute and is subject to reasonable regulations. (Philippine Constitutional Law
by Malcolm and Laurel, 3d ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30
N.E. 79.)
107. Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an
absolute one. Assemblies are subject to reasonable regulations."
108. In the above cited case of Commonwealth vs. Abrahams, which is cited in support of
the text on page 407 of the above cited work on Philippine Constitutional Law by Malcolm
and Laurel, the Supreme Judicial Court of Massachusetts considered and decided a case
involving a regulation by the Board of Park Commissioners forbidding all persons "to make
orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon
prior consent of the board. The defendant requested permission to deliver an oration in the
park, which was refused by the board, and thereafter entered the park, and delivered an
"oration or harangue" about ten or fifteen minutes in length. In a criminal trial of said
defendant for violating the rules promulgated by the Board of Park Commissioners, said
rules were held valid and reasonable, and not inconsistent with article 19 of the Bill of Rights
(of the Massachusetts Constitution), providing that "the people have a right, in an orderly and
peaceable manner, to assemble to consult upon the common good, give instructions to their
representatives, and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that
case the defendant admitted that the people would not have the right to assemble for the
purposes specified in the public streets, and might not have such right in the public gardens
or on the common, because such an assembly would or might be inconsistent with the public
use for which these places are held. And the Supreme Court of Massachusetts said:
109. ". . . . The same reasons apply to any particular park. The parks of Boston are
designed for the use of the public generally; and whether the use of any park or a part of any
park can be temporarily set aside for the use of any portion of the public, is for the park
commissioners to decide, in the exercise of a wise discretion."
110. In the above-quoted case it appears from the statement of facts preceding the
opinion that within the limits of Franklin Park, there involved, were large areas not devoted to
any special purpose and not having any shrubbery that would be injured by the gathering
thereon of a large concourse of people; that defendant's speech contained nothing
inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close
of the oration the audience quietly dispersed; and that no injury of any kind was done to the
park. Still, it was held that the regulation under which the Board of Park Commissioners
denied the permission to deliver said oration requested by the defendant was valid and was
not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the
people the "right, in an orderly and peaceable manner, to assemble to consult upon the
common good, give instructions to their representatives, and to request of the legislative
body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done
them, and of the grievances they suffer."
111. In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to
grant and refuse municipal . . . permits of all classes . . . for any (other) good reason of
general interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics ours); and "to comply with and
enforce and give the necessary orders for the faithful enforcement and execution of the laws
and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and
among the general powers and duties of the Municipal Board, whose ordinances the said
Mayor was at once bound and empowered to comply with and enforce, were such as
"regulate the use of streets, . . . parks, . . . and other public places." [Ibid., section 2444 (u);
italics ours.]
112. Another legal doctrine which should not be lost sight of is that, without abridging the
right of assembly and petition, the government may regulate the use of places — public
places — wholly within its control, and that the state or municipality may require a permit for
public gatherings in public parks and that, while people have the right to assemble peaceably
on the highways and to parade on streets, nevertheless the state may regulate the use of the
streets by requiring a permit (16 C. J. S., p. 642). In our government the state, through the
Charter of Manila, has conferred certain powers pertinent to the subject under consideration
upon the City Mayor, and upon the Municipal Board. Among these is the duty and power of
said Mayor "to grant and refuse municipal . . . permits of all classes . . . for any good reason
of general interest" (italics ours), and the power and duty of the Municipal Board "to regulate
the use . . . of street, . . . parks, . . . and other public places . . ." (italics ours), already above
discussed.
113. Plaza Miranda in a way is a public square or plaza, and in another sense, in view of
its more frequent public use, is a public place devoted to traffic between several streets
which empty into it within the district of Quiapo. It is a fact of common knowledge and within
the judicial notice of this Court that said plaza is one of the public places constantly used by
an usually great number of people during all hours of the day and up to late hours of the
night, both for vehicular and for pedestrian traffic. It is one of the centers of the city where a
heavy volume of traffic during those hours converges and from which it again proceeds in all
directions; and the holding during those hours of a meeting, assembly or rally of the size and
nature of that contemplated by petitioner and those belonging to the Coalesced Minority
Parties when the permit in question was requested from the City Mayor, must have been
expected to greatly inconvenience and interfere with the right of the public in general to
devote said plaza to the public uses for which it has been destined since time immemorial.
114. The rule may perhaps be more aptly stated by saying that the right of peaceful
assembly and petition is not absolute but subject to regulation as regards the time, place,
and manner of its exercise. As to time, it seems evident, for example, that the State, directly
or through the local government of the city or municipality, by way of regulation of the right of
free speech, may validly prohibit the delivery of speeches on public streets near private
residences between midnight and dawn. As to place, we have the example of the instant
case involving Plaza Miranda or any other public place. And as to manner, it is a familiar rule
that the freedom of speech does not authorize the speaker to commit slander or defamation,
and that laws and ordinances aimed at preventing such abuses are valid regulations of the
right. Among other cases which may be cited on the same point, we have that of Hague vs.
Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the majority
opinion and from which the following passage is copied from the quotation therefrom in the
said opinion:
115. ". . . The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied." (Italics ours.)
116. I construe this declaration of principles by the United States Supreme Court to imply
that where the regulatory action is predicated upon the "general comfort and convenience,"
and is "in consonance with peace and good order," as in the instant case, such action is
regulation and not "guise of regulation," and therefore does not abridge or deny the right.
117. (b) No constitutional right to use public places under government control, for exercise
of right of assembly and petition, etc. —
118. Indeed, carefully analyzed, the action taken by the City Mayor was not even a
regulation of the constitutional right of assembly and petition, or free speech, claimed by
petitioner, but rather of the use of a public place under the exclusive control of the city
government for the exercise of that right. This, I submit, is a distinction which must be clearly
maintained throughout this discussion. No political party or section of our people has any
constitutional right to freely and without government control make use of such a public place
as Plaza Miranda, particularly if such use is a deviation from those for which said public
places have been by their nature and purpose immemorially dedicated. In other words, the
City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or
the delivery of speeches thereat on the date desired at any place over which said mayor had
no control — his action was exclusively confined to the regulation of the use of Plaza
Miranda for such a purpose and at such a time. Chief Justice Hughes, speaking for a
unanimous court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
119. If a municipality has authority to control the uses of its public streets for parades or
processions, as it undoubtedly has, it can not be denied authority to give consideration,
without unfair discrimination, to time, place, and manner in relation to the other proper uses
of the streets. We find it impossible to say that the limited authority conferred by the licensing
provisions of the statute in question as thus construed by the state court contravened any
constituional right. (emphasis ours).
120. That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in
a municipal court in the State of New Hampshire for violation of a state statute prohibiting a
"parade or procession" upon a public street without a special license. The appellants invoked
the constitutional right of free speech and press, as well as that of the assembly. The
judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and
that of the latter was affirmed by the United States Supreme Court. Among other things, the
United States Supreme Court said that the appellants were not prosecuted for distributing
leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a
public meeting, or for holding a public meeting, of for maintaining or expressing religious
beliefs. Their right to do any of these things apart from engaging in a "parade or procession,"
upon a public street was not involved in the case. The question of the validity of a statute
addressed to any other sort of conduct than that complained of was declared not to be
before the court (85 Law. ed., 1052). By analogy, I may that in the instant case the
constitutional rights of free speech, assmebly, and petition are not before the court but
merely the privilege of petitioner and the Coalesced Minorities to exercise any or all of said
rights by using Plaza Miranda, a public place under the complete control of the city
government. In the same case of Cox vs. New Hampshire, supra, Chief Justice Hughes, in
his opinion, used the following eloquent language:.
121. "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the excesses of
unrestrained abuses. The authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need. Where a restriction of
the use of highways in that relation is designed to promote the public convenience in the
interest of all, it can not be disregarded by the attempted exercise of some civil right which in
other circumstances would be entitled to protectio. One would not be justified in ignoring the
familiar red lightbecause he thought it his religious duty to disobey the municipal command
or sought by that means to direct public attention to an announcement of his opinion...." (85
Law. ed., 1052-1053.).
122. In other words, when the use of public streets or places is involved, public
convenience, public safety and public order take precedence over even particular civil rights.
For if the citizen asserting the civil right were to override the right of the general public to the
use of such streets or places, just because it is guaranteed by the constitution, it would be
hard to conceive how upon the same principle that citizen be prevented from using the
private property of his neighbor for the exercise of the asserted right. The constitution, in
guaranteeing the right of peaceful assembly and petition, the right of free speech, etc., does
not guarantee their exercise upon public places, any more than upon private premises,
without government regulation in both cases, of the owners' consent in the second..
123. In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States
Supreme Court, in affirming the decision of the Supreme Judicial Court of Massachusetts
written by Justice Oliver Wendell Holmes, then of the latter tribunal, quoted from said
decision as follows:.
124. "...As representatives of the public it (legislature) may and does excercise control
over the use which the public may make of such places (public parks and streets), and it may
and does delegate more or less of such control to the city or town immediately concerned.
For the legislature absolutely or conditionally to forbid public speaking in a highway or public
park is no more an infringement of the rights of the member of the public than for the owner
of a private house to forbid it in his house. When no proprietary right interferes the legislature
may end the right of the public to enter upon the public place by putting an end to the
dedication to public uses. So it may take the lesser step of limiting the public use to certain
purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs.
Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....".
125. (c) Authorities cited.--.
126. I have examined the citations of authorities in the majority opinion. Most of the cases
therin cited are, I think, inapplicable to the oune under consideration, and those which may
have some application, I believe reinforce this dissent. None of them was for mandamus to
compel the granting of a permit for holding a meeting, assembly or the like, upon a public
place within the control of the general or local government..
127. The fact that a law or municipal ordinance under which a person had been
prosecuted for delivering a speech without the required permit, for example, was declared
unconstitutional or otherwise void for delegating an unfettered or arbitrary discretion upon the
lisencing authority, thus completely failing to confer the discretion, does not mean that such
person has the right by mandamus to force said authority to grant him the permit. If, in such
case, the law or ordinance, conferring the discretion, is unconstitutional or void,
the mandamus suit becomes entirely idle. Such a suit would involve self-contradictory
proposition, for the very idea of a permit is something which may be granted or witheld. He
who has the power to grant permission for the doing of an act necessarily has the correlative
power to deny the permission. A "permit" which under no conditions or circumstances and at
no time can be refused needs a different name..
128. Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute
of the State of New Hampshire which was construed by the Supreme Court of the same
State as not conferring upon the licensing board unfettered discretion to refuse the license,
and was held valid both by said Supreme Court and the Supreme Court of the United
States..
129. In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer
upon the Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to
grant or to refuse the permit is controlled and limited by the all important requirement of the
same section that whatever his determination, it should be "for any good reason of general
interest.".
130. In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois
held that the power of City councils under the state law to regulate the use of the public
streets could not be delegated by them, and therefore could not be delegated to the
superintendent of police. But in our case, the power of the City Mayor under the Revised
Administrative Code has not been delegated by the Municipal Board of Manila but has been
directly conferred by the State through its legislature. .
131. In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city
ordinance committing to the unrestrained will of public officer the power to determine the
rights of parties under the ordinance without anything (to guide or control his action.) In our
case, as already stated, the city mayor received his power from the State through the
Legislature which enacted the Revised Administrative Code, and moreover, his action
therein provided to be guided and controlled by the already mentioned requirement that
whether he grants or refuses a municipal premit of any class it shall be for some "good
reason of general interest," and not as his unfettered will may dictate..
132. The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared
unreasonable and void by the Supreme Court of Michigan, the ordinance prohibiting certain
uses of the public streets of the City of Grand Rapids "without having first obtained the
consent of the Mayor or Common Council of said City." The ordinance did not prescribe any
guide, control or limitation for, of, and to, the exercise of the power thus conferred upon the
mayor or common council. The following passage from the quotation from the decision of the
Supreme Court of Michigan made in the majority opinion would seem to reinforce the stand
taken in this dissent..
133. "...We must therefore construe this Charter and the powers it assumes to grant, so
far as it is not plainly unconstitutional, as only conferring such power over the subjects
referred to as will enable the city to keep order, and suppress mischief, in accordance with
the limitations and conditions required by the rights of the people themselves, as secured by
the principles of law, which cannot be less careful of private rights under a constitution than
under the common law..
134. "It is quite possible that some things have a greater tendency to produce danger and
disorder in the cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose and no grant of absolute discretion to suppress
lawful action altogether can be granted at all...." (emphasis ours.)
135. The instant case is concerned with an "indignation rally" to be held at one of the
busiest and most frequented public places in this big cosmopolitan city, with a present
population estimated to be 150 per cent larger than its prewar population, and the public
officer who was being called upon to act on the petition for permit was the chief executive of
the city who was by reason of his office the officer most directly responsible for the keeping
and maintenance of peace and public order for the common good. And as stated elsewhere
in this dissent, his power in the premises was not without control, limitation or guide and,
lastly, the action taken by him was not an absolute suppression of the right claimed but was
merely a postponement of the use of a public place for the excercise of that right when
popular passions should have calmed down and public excitement cooled off sufficiently to
better insure the avoidance of public peace and order being undermined..
136. Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court
there held that when men in authority are permitted in their discretion to excercise "power so
arbitrary , liberty is subverted, and the spirit of our free institution violated." (Emphasis ours.)
This is not our case, as the power of the Manila Mayor now under consideration is not at all
arbitrary. It was further held in that case that where the granting of the permit is left to the
unregulated discretion of a small body of city alderman, th ordinance can not be other than
partial and discriminating in its practical operation. The case at bar is radically different for,
as already shown, the discretion of the City Mayor here is not unregulated, for the phrase
"any good reason of general interest" is certainly an effective regulatory condition precedent
to the exercise of the power one way or the other. And just as certainly the reasons alleged
by the respondent Mayor for his action stated in his letters dated November 15 and 17, 1947,
addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and well
taken, consideration being had of his grave responsibilities as the immediate keeper of
peace and public order in the city. Elsewhere in this dissent we quote from said documents
textually..
137. On page 13 of the majority opinion there is aquotation of anothe passage from the
case of Cox vs. New Hampshire, supra, which says:.
138. "As regualtion of the use of the streets for parades or processions is a traditional
exercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places.".
139. The above rule means that if the control exerted does not deny or unwarrantedly
abridge the right of assembly, such control is legally valid. This is precisely our case, since
the respondent Mayor neither denied not unwarrantedly abridged the right asserted by
petitioner and his companions. If the postponement of the granting of the permit should be
taken as a denial of the right, then we would practically be denying the discretion of the
proper official for it would be tantamount to compelling him to grant the permit outright, which
could necessarily mean that he can never refuse the permit, for one who cannot even
postpone the granting of such permit much less can altogether refuse it. .
140. Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423,
apart from being clearly distinguishable from the instant case as later demonstrated, contains
the passage quoted on page 7 of this dissent, which decidedly supports it. The distinction
between that case and this is that there "the ordinance deals only with the exercise of the
right of assembly for the purpose of communicating views entertained by speakers, and is
not a general measure to promote the public convenience in the use of the streets or parks"
(83 Law. ed., 1436); while in the instant case section 2434 (b)-(m) of the Revised
Administrative Code is not solely aimed at prhibition of any particular act for it likewise
provides permission, and in both cases is expressly aimed at promoting the "general
interest." .
141. Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in
solid support of this dissent as appears from No. 2 of the syllabus therein:.
142. "A statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgement of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of time, place, and manner, of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
licenses, but are required to exercise their discretion free from the improper or inappropriate
consideration and from unfair discrimination." (Emphasis ours.).
143. In empowering and directing the City Mayor to grant or refuse permits "for any...good
reason of general interest," the Revised Administrative Code plainly has in view only the
common good and excludes all "improper or inappropriate considerations" and "unfair
discrimination" in the exercise of the granted discretion.
144. Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox
vs. State of New Hampshire supra, the choice is obvious with regard to their authoritative
force, when it is considered that in the former out of the nine Justices of the United States
Supreme Court two did not take part and of the seven who dis only two, Justices Roberts
and Black, subscribed the opinion from which the majority here quote, while in the latter (Cox
vs. State of New Hampshire) the decision was unanimous..
145. (d) Mandamus unavailable.--- .
146. Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section
2714, expresses the rule obtaining in the United States that the immunity from judicial control
appertaining to the Office of the Governor of the State, or to the Presidency of the United
States, does not attach to the mayoralty of a city. But on page 878, section 2728, ha has the
following to say on the unavailability of mandamus to compel the granting of licenses and
permits by municipal officers:.
147. "SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the
license or permit is discretionary with the officer or municipal board, it is clear that it cannot
be compelled by mandamus. The cases rarely, if ever, depart from this well established rule,
and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the
remedy. As already stated, the fundamental condition is that the petition must show a clear
legal right to the writ and a plain neglect of duty on the part of the public officer to perform the
act sought to be enforced. For example, one who seeks to compel a city to issue to him a
permit for the erection of a buiding must show compliance with all valid requirements of the
building ordinances and regulations..
148. "The granting of licenses or permits by municipal or other public authorities, as
mentioned, is usually regarded as a discretionary duty, and hence, ordinarily mandamus will
not lie to compel them to grant a license or issue a permit to one claiming to be entitled
thereto, especially where it is not alleged and shown that the exercise of such discretion was
arbitrary. All the court can do is to see that the licensing authorities have proceeded
according to law. Their decision will not be reviewed on its merits. Where, however, refusal
to grant a license or to issue a permit, as said above, is arbitrary or
capricious mandamus will lie to compel the appropriate official action...." .
149. To my mind, the following reasons, alleged by the respondent mayor, negative all
element of arbitrariness in his official action:.
150. "...please be advised that upon reading the metropolitan newspapers this morning
wherein it appears that your meeting will be an indignation rally at which all the supposed
election frauds allegedly perpetrated in many parts of the Philippines for the purpose of
overriding the popular will, will be bared before the people, this office hereby revokes the
said permit..
151. "It is believed that public peace and order in Manila will be undermined at the
proposed rally considering the passions have not as yet subsided and tension remains high
as an aftermath of the last political contest..
152. "According to the same newspapers, delegates from the provinces and students from
local universities will particpate in the said rally which, in my opinion, would only precipitate
trouble since no guarantee can be given that only the opposition elements will be there. The
moment the crowd becomes mixed with people of different political colors which is most
likely to happen, public order is exposed to danger once the people are incited, as they will
be incited, considering the purposes for which the meeting will be held as reported in the
newspapers above mentioned..
153. "...." (Mayor's letter dated November 15, 1947.).
154. "I have the honor to acknowledge receipt of your letter of November 7, 1947,
requesting for a permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday,
November 22, 1947, for the purpose of denouncing the alleged fraudulent manner in which
the last elections have been conducted and the alleged nationwide flagrant violation of the
Election Law, and of seeking redress therefor. It is regretted that for the same reasons stated
in my letter of November 15, 1947, your request can not be granted for the present. This
Office has adopted the policy of not permitting meetings of this nature which are likely to
incite the people and disrupt the peace until the results of the elections shall have been
officially announced. After this announcement, requests similar to yours will be granted..
155. "...." (Mayor's letter dated November 17, 1947.).
156. "That according to Congressman Primicias, the meeting will be an indignation rally
for the purpose of denouncing the alleged fraudulent manner the said elections were
conducted and the nationwide falgrant violations of the Election Law;.
157. "2. That it is a fact that the returns of the last elections are still being recounted in the
City of Manila in the Commission on Elections, and pending the final announcement of the
results thereof, passions, especially on the part of the losing groups, remain bitter and high;.
158. "3. That allusions have been made in the metropolitan newspapers that in the case of
defeat, there will be minority resignations in Congress, rebellion and even revolution in the
country;.
159. "4. That I am sure that the crowd that will attend said meeting will be a multitude of
people of different and varied political sentiments;.
160. "5. ....... .
161. "6. That judging from the tenor of the request for permit and taking into consideration
the circumstances under which said meeting will be held, it is safe to state that once the
people are gathered thereat are incited, there will surely be trouble between the opposing
elements, commotion will follow, and then peace and order in Manila will be disrupted; and.
162. "7. That the denial of said request for permit has been made for no other reasons
except to perform my duty as Mayor of Manila to maintain and preserve peace and order in
this City..
163. 8. That I have assured Congressman Primicias that immediately after the election
returns shall have been officially announced, the Nacionalista Party or any party will be
granted permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1,
Answer.).
164. For these and other reasons which could be advanced in corroboration, I am of the
considered opinion that the respondent Mayor had under the law the requisite discretion to
grant or refuse the permit requested, and therefore to revoke that which had previously been
granted, and that the reasons for such revocation alleged in his letters dated November 15
and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last
action. And be it distinctly observed that this last action was not an absolute denial of the
permit, but a mere postponement of the time for holding the "rally" for good reasons "of
general interest" in the words of section 2434 (b)-(m) of the Revised Admninistrative Code..
165.

166. TUASON, J., dissenting:.


167. I join in Mr. Hilado's dissent and wish to add a few remarks..
168. As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble
assemblage, is only an incidental issue in this case. No one will contest the proposition that
the mayor or the Congress itself may stop the petitioner and his men from meeting peacebly
and venting their grievances in a private place. The main issue rather is the extent of the
right of any group of people to use a public street or a public plaza for a purpose other than
that for which it is dedicated..
169. The constitutional guaranty of free speech does not prevent the government from
regulating the use of places within its control. A law or ordinance may forbid the delivery of
addresses on the public parks, or on the streets as a valid exrcise of police power. (12 C. J.,
954) Rights of assembly and of petition are not absolute rights and are to be construed with
regard to the general law. (16 C.J.S., 640) Indeed, "the privileges of a citizen of the United
States to use the streets and parks for the communication of views on national
questions...must be exercised in subordination to the general comfort and convenience."
(Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed., 1433) And so
long as the municpal authorities act within the legitimate scope of their police power their
discretion is not subject to outside interference or judicial revsion or reversal (14 C. J., 931.).
170. The mayor did not act capriciously or arbitrarily in withholding or postponing the
permit applied for by the petitioner. His reasons were real, based on contemporary events of
public knowledge, and his temporary refusal was reasonably calculated to avoid possible
disturbances as well as to adavance and protect the public in the proper use of the most
congested streets and public plaza in an overcrowded city. There was reason to fear
disturbances, not from the petitioner and his men but from elements who had no connection
with the holding of the meeting but who, having gripes, might be easily excited to violence by
inflammatory harangues when nerves were on edge. The fact that no untoward incident
occurred does not prove the judiciousness of this Court's resolution. The court is not dealing
with an isolated case; it is laying down a rule of transcendental importance and far-reaching
consequences, in the administration of cities and towns. If nothing happened, it is well to
remember that, according to newspapers, 500 policemen were detailed to prevent possible
disorder at the gathering. It should also be borne in mind that vehicular traffic in the vicinity of
Plaza Miranda had to be suspended and vehicles had to be rerouted, during and after the
meeting. All of which entailed enormous expense by the city and discomforts to the general
public..
171. No individual citizen or group of citizens certainly has a right to claim the use of a
public plaza or public streets at such great expense and sacrifice on the part of the city and
of the rest of the community. Yet, by virtue of this Court's resolution any person or group of
persons invoking political, civil or religious freedom under the constitution is at liberty to
stage a rally or parade or a religious procession, with the mayor powerless to do anything
beyond seeing to it that no two meetings or parades were held in the same place or close to
each other. No precedent in the United States, after whose institutions ours are modelled,
approaches this Court's resolution in its disregard of the government's authority to control
public streets and to maintain peace and order. In an infant republic where the state of peace
and order is still far from normal, where the forces of law are far from adequate to cope with
lawlessness; in a city where conditions of traffic are among the worst if not the worst on
earth, this Court sets down a principle that outstrips its prototype in "liberality", forgetting that
personal rights can only exist in a properly regulated society. As Mr. Chief Justice Hughes
said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized society maintaining public order without
which liberty itself would be lsot in the excesses of unrestrained abuses. The authority of the
municipality to impose regulations in order to assure the safety and convenience of the
people in the use public highways has never been regarded as inconsistent with civil
liberties, but rather as one of the means of safeguarding the good order upon which they
ultimately depend." To be logical, peddlers and merchants should be given, as a matter of
right, the freedom to use public streets and public squares to ply their trade, for the freedom
of expression and of assemblage is no more sacred than the freedom to make a living. Yet
no one has dared make such a claim..
172. The cases cited in the resolution are not applicable. It will be seen that each of these
cases involved the legality of a law and municipal ordinance. And if in some of said cases a
law or an ordinance was declared void, the grounds of invalidation were either discrimination
or lack of authority of the Legislature or the municipal council under the state constitution or
under the law to adopt the contested measure..
173. As applied to Manila, there are both a law and an ordiance regulating the use of
public places and the holding of meetings and parades in such places. As long as this law
and this ordinance are in force the mayor does not only have the power but it is his sworn
duty to grant or refuse a permit according to what he believes is in consonance with peace
and order or is proper to promote the general comfort and convenience of the inhabitants..
174. The Court says that section 2434 (m) of the Revised Administrative Code "is not a
specific of substantive power independent from the corresponding municipal ordinance which
the Mayor, as Chief Executive of the City, is required to enforceunder the same section
2434." The Court advances the opinion that because section 2444 confers upon the
municipal board "the police power to regulates the use of streets and othe public places," "It
is to be presumed that the Legislature has not, in the same breath, conferred upon the Mayor
in section 2434 (m), the same power, specially if we take into account that its exercise may
be in conflict with the exercise of the same power by the municipal board.".
175. Section 2434 (m) is written in the plainest language for any casual reader to
understand, and it is presumed that it means what it says. This provision certainly was not
inserted in the city charter, which must have been drawn with painstaking care, for nothing.
And I am aware of no constitutional provision or constitutional maxim which prohibits the
delegation by the Legislature of part of its police power affacting local matters, directly upon
the mayor instead of through the municipal board. Nor is there incompatibilty between
section 2434 (m) and section 2444 or the ordinance enacted under the latter. At any rate,
section 2434 (m) is of special character while section 2444 is general, so that, if there is any
conflict between section 2434 (m) and the ordinance passed under section 2444, the former
is to prevail..
176. This Court has already set at rest the validity, meaning any scope of section 2434
(m) in a unanimous decision with all the nine members voting, when it sustained the mayor's
refusal to grant a permit for a public meeting on a public plaza to be followed by a parade on
public streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434 (m) in
that decision was not an obiter dictum as the majority say. The sole question presented
there, as we gather from the facts disclosed, was the legality of the mayor's action, and the
court pointed to section 2434 (m) as the mayor's authority for his refusal. The fact that the
mayor could have denied the petitioner's application under the general power to prohibit a
meeting for unlawful purposes did not make the disposition of the case on the strength of
section 2434 (m) obiter dictum. An adjudication on any point within the issues presented by
the case cannot be considered a dictum; and this rule applies as to all pertinent questions,
although only incidentally involved, which are presented and decided in the regular course of
the consideration of the case, and lead up to the final conclusion, and to any statement in the
opinion as to a matter on which the decision is predicated. Accordingly, a point expressly
decided does not lose its value as a precedent because the disposition of the case is or
might have been on some other ground, or even though, by reason of other points in the
case, the result reached might have been the same if the court had held, on the particular
point, otherwise than it did. (1 C. J. S. 314-315.).
177. But the Court asserts that if the meaning of section 2434 (m) is what this Court said
in Evangelista-Earnshaw case, then section is void. I do not think that that provision is void--
at least not yet. Until it is invalidated in the proper case and in the proper manner, the
mayor's authority in respect of the issuance of permits is to be measured by section 2434
(m) and by the municipal ordinance in so far as the ordinance does not conflict with the law.
The validity of that provision is not challenged and is nowhere in issue. It is highly improper,
contrary to the elementary rules of practice and procedure for this Court to say or declare
that the provision is void. Moreover, Article VIII, section 10, of the Constitution provides that
"all cases involving the constitutionality of a treaty or a law shall be heard and decided by the
Supreme Court in banc, and no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the court." Only seven voted in favor of the
resolution...
178. 1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal
Auxiliar de Manila D. Julio Villamor, en representacion del recurrido..
179. 2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se
celebro en la noche del 22 de Noviembre en virtud de nuestra resolucion concediendo el
presente recurso de mandamus-- el mas grande que se ghaya celebrado jamas en Manila,
segun la prensa, y al cual se calcula que assistieron unas 80,000 personas--fue
completamente pacifico y ordenado, no registrandose el menor incidente desagradable.
Segun los periodicos, el mitin fue un magnifico acto de ciudadania militante y responsable,
vindicatoria de la fe de todos aquellos que jamas habian dudado de la sensatez y cultura del
pueblo de Manila. .
180. 3 Madame Roland..
181. 4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los
que conocen Mejico aseguran que, merced a esta consigna, la era de las convulsiones y
guerras civiles en aquella republica ha pasado definitivamente a la historia. .
182. 5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el
Gobierno de Roma; fue la de los censores. Hacian el censo del pueblo, y, ademas, como la
fuerza de la republica consistia en la disciplina, la austeridad de las costumbres y la
observacion constante de ciertos ritos, los censores corregian los abusos que la ley no habia
previsto o que el magistrado ordinario no podia castigar.....
183. "El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el
espiritu del pueblo, la fuerza del Senado o la autoridad de ciertos magistrados, estaba
constituido de tal modo, que todo abuso de poder pudo ser siempre corregido. .
184. "El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de
examinarlo continuamente y de examinarse a si mismo; sus errores son de suerte que
nunca se prolongan, y por el espiritu de atencion que despiertan en el pais, son a menudo
utiles. .
185. "En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es
por sus propias leyes capaz de corregirse." ("Grandeza y decadencia de los romanos," por
Montesquieu, pags. 74, 76 y 77.) .
186.
The Lawphil Project - Arellano Law Foundation
187.
188.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-25246 September 12, 1974

BENJAMIN VICTORIANO, plaintiff-appellee,


vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC., defendants,
ELIZALDE ROPE WORKERS' UNION, defendant-appellant.

Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.

Cipriano Cid & Associates for defendant-appellant.

ZALDIVAR, J.:p

Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil Case No. 58894.

The undisputed facts that spawned the instant case follow:


Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as
the "Iglesia ni Cristo", had been in the employ of the Elizalde Rope Factory, Inc. (hereinafter referred
to as Company) since 1958. As such employee, he was a member of the Elizalde Rope Workers'
Union (hereinafter referred to as Union) which had with the Company a collective bargaining
agreement containing a closed shop provision which reads as follows:

Membership in the Union shall be required as a condition of employment for all


permanent employees workers covered by this Agreement.

The collective bargaining agreement expired on March 3, 1964 but was renewed the following day,
March 4, 1964.

Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act
No. 3350, the employer was not precluded "from making an agreement with a labor organization to
require as a condition of employment membership therein, if such labor organization is the
representative of the employees." On June 18, 1961, however, Republic Act No. 3350 was enacted,
introducing an amendment to — paragraph (4) subsection (a) of section 4 of Republic Act No. 875,
as follows: ... "but such agreement shall not cover members of any religious sects which prohibit
affiliation of their members in any such labor organization".

Being a member of a religious sect that prohibits the affiliation of its members with any labor
organization, Appellee presented his resignation to appellant Union in 1962, and when no action was
taken thereon, he reiterated his resignation on September 3, 1974. Thereupon, the Union wrote a
formal letter to the Company asking the latter to separate Appellee from the service in view of the
fact that he was resigning from the Union as a member. The management of the Company in turn
notified Appellee and his counsel that unless the Appellee could achieve a satisfactory arrangement
with the Union, the Company would be constrained to dismiss him from the service. This prompted
Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First
Instance of Manila to enjoin the Company and the Union from dismissing Appellee.1 In its answer,
the Union invoked the "union security clause" of the collective bargaining agreement; assailed the
constitutionality of Republic Act No. 3350; and contended that the Court had no jurisdiction over the
case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and (e).2 Upon the facts agreed upon
by the parties during the pre-trial conference, the Court a quo rendered its decision on August 26,
1965, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant


Elizalde Rope Factory, Inc. from dismissing the plaintiff from his present employment
and sentencing the defendant Elizalde Rope Workers' Union to pay the plaintiff P500
for attorney's fees and the costs of this action.3

From this decision, the Union appealed directly to this Court on purely questions of law, assigning
the following errors:

I. That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.

II. That the lower court erred when it sentenced appellant herein to pay plaintiff the
sum of P500 as attorney's fees and the cost thereof.

In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly,
that the Act infringes on the fundamental right to form lawful associations; that "the very phraseology
of said Republic Act 3350, that membership in a labor organization is banned to all those belonging
to such religious sect prohibiting affiliation with any labor organization"4 , "prohibits all the members
of a given religious sect from joining any labor union if such sect prohibits affiliations of their
members thereto"5 ; and, consequently, deprives said members of their constitutional right to form or
join lawful associations or organizations guaranteed by the Bill of Rights, and thus becomes
obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6

Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the
obligation of contracts in that, while the Union is obliged to comply with its collective bargaining
agreement containing a "closed shop provision," the Act relieves the employer from its reciprocal
obligation of cooperating in the maintenance of union membership as a condition of employment;
and that said Act, furthermore, impairs the Union's rights as it deprives the union of dues from
members who, under the Act, are relieved from the obligation to continue as such members.7

Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects
which ban their members from joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935
Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or
protection to labor organizations.8

Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no
religious test shall be required for the exercise of a civil right," in that the laborer's exercise of his civil
right to join associations for purposes not contrary to law has to be determined under the Act by his
affiliation with a religious sect; that conversely, if a worker has to sever his religious connection with
a sect that prohibits membership in a labor organization in order to be able to join a labor
organization, said Act would violate religious freedom.9

Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws"
clause of the Constitution, it being a discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni Cristo", it has granted said
members undue advantages over their fellow workers, for while the Act exempts them from union
obligation and liability, it nevertheless entitles them at the same time to the enjoyment of all
concessions, benefits and other emoluments that the union might secure from the employer. 10

Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision
regarding the promotion of social justice. 11

Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining
agreement cannot be considered violative of religious freedom, as to call for the amendment
introduced by Republic Act No. 3350; 12and that unless Republic Act No. 3350 is declared
unconstitutional, trade unionism in this country would be wiped out as employers would prefer to hire
or employ members of the Iglesia ni Cristo in order to do away with labor organizations. 13

Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate
the right to form lawful associations, for the right to join associations includes the right not to join or
to resign from a labor organization, if one's conscience does not allow his membership therein, and
the Act has given substance to such right by prohibiting the compulsion of workers to join labor
organizations; 14 that said Act does not impair the obligation of contracts for said law formed part of,
and was incorporated into, the terms of the closed shop agreement; 15 that the Act does not violate
the establishment of religion clause or separation of Church and State, for Congress, in enacting
said law, merely accommodated the religious needs of those workers whose religion prohibits its
members from joining labor unions, and balanced the collective rights of organized labor with the
constitutional right of an individual to freely exercise his chosen religion; that the constitutional right
to the free exercise of one's religion has primacy and preference over union security measures
which are merely contractual 16; that said Act does not violate the constitutional provision of equal
protection, for the classification of workers under the Act depending on their religious tenets is based
on substantial distinction, is germane to the purpose of the law, and applies to all the members of a
given class; 17 that said Act, finally, does not violate the social justice policy of the Constitution, for
said Act was enacted precisely to equalize employment opportunities for all citizens in the midst of
the diversities of their religious beliefs." 18

I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that
there are some thoroughly established principles which must be followed in all cases where
questions of constitutionality as obtains in the instant case are involved. All presumptions are
indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be
upheld, and the challenger must negate all possible bases; that the courts are not concerned with
the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be adopted. 19

1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such
religious sects that forbid affiliation of their members with labor unions from joining labor unions
appears nowhere in the wording of Republic Act No. 3350; neither can the same be deduced by
necessary implication therefrom. It is not surprising, therefore, that appellant, having thus misread
the Act, committed the error of contending that said Act is obnoxious to the constitutional provision
on freedom of association.

Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of
Article III of the Constitution of 1935, as well as Section 7 of Article IV of the Constitution of 1973,
provide that the right to form associations or societies for purposes not contrary to law shall not be
abridged. Section 3 of Republic Act No. 875 provides that employees shall have the right to self-
organization and to form, join of assist labor organizations of their own choosing for the purpose of
collective bargaining and to engage in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize and
guarantee is the "right" to form or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it
can be safely said that whatever theory one subscribes to, a right comprehends at least two broad
notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee
may act for himself without being prevented by law; and second, power, whereby an employee may,
as he pleases, join or refrain from Joining an association. It is, therefore, the employee who should
decide for himself whether he should join or not an association; and should he choose to join, he
himself makes up his mind as to which association he would join; and even after he has joined, he
still retains the liberty and the power to leave and cancel his membership with said organization at
any time. 20 It is clear, therefore, that the right to join a union includes the right to abstain from joining
any union. 21 Inasmuch as what both the Constitution and the Industrial Peace Act have recognized,
and guaranteed to the employee, is the "right" to join associations of his choice, it would be absurd
to say that the law also imposes, in the same breath, upon the employee the duty to join
associations. The law does not enjoin an employee to sign up with any association.

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace
Act is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn
by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue
of which the employer may employ only member of the collective bargaining union, and the
employees must continue to be members of the union for the duration of the contract in order to
keep their jobs. Thus Section 4 (a) (4) of the Industrial Peace Act, before its amendment by Republic
Act No. 3350, provides that although it would be an unfair labor practice for an employer "to
discriminate in regard to hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization" the employer is, however, not
precluded "from making an agreement with a labor organization to require as a condition of
employment membership therein, if such labor organization is the representative of the employees".
By virtue, therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if
any person, regardless of his religious beliefs, wishes to be employed or to keep his employment, he
must become a member of the collective bargaining union. Hence, the right of said employee not to
join the labor union is curtailed and withdrawn.

To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced
an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso:
"but such agreement shall not cover members of any religious sects which prohibit affiliation of their
members in any such labor organization". Republic Act No. 3350 merely excludes ipso jure from the
application and coverage of the closed shop agreement the employees belonging to any religious
sects which prohibit affiliation of their members with any labor organization. What the exception
provides, therefore, is that members of said religious sects cannot be compelled or coerced to join
labor unions even when said unions have closed shop agreements with the employers; that in spite
of any closed shop agreement, members of said religious sects cannot be refused employment or
dismissed from their jobs on the sole ground that they are not members of the collective bargaining
union. It is clear, therefore, that the assailed Act, far from infringing the constitutional provision on
freedom of association, upholds and reinforces it. It does not prohibit the members of said religious
sects from affiliating with labor unions. It still leaves to said members the liberty and the power to
affiliate, or not to affiliate, with labor unions. If, notwithstanding their religious beliefs, the members of
said religious sects prefer to sign up with the labor union, they can do so. If in deference and fealty
to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join;
neither does the law prohibit them from joining; and neither may the employer or labor union compel
them to join. Republic Act No. 3350, therefore, does not violate the constitutional provision on
freedom of association.

2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its
contract, specifically, the "union security clause" embodied in its Collective Bargaining Agreement
with the Company, by virtue of which "membership in the union was required as a condition for
employment for all permanent employees workers". This agreement was already in existence at the
time Republic Act No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to
have been incorporated into the agreement. But by reason of this amendment, Appellee, as well as
others similarly situated, could no longer be dismissed from his job even if he should cease to be a
member, or disaffiliate from the Union, and the Company could continue employing him
notwithstanding his disaffiliation from the Union. The Act, therefore, introduced a change into the
express terms of the union security clause; the Company was partly absolved by law from the
contractual obligation it had with the Union of employing only Union members in permanent
positions, It cannot be denied, therefore, that there was indeed an impairment of said union security
clause.

According to Black, any statute which introduces a change into the express terms of the contract, or
its legal construction, or its validity, or its discharge, or the remedy for its enforcement, impairs the
contract. The extent of the change is not material. It is not a question of degree or manner or cause,
but of encroaching in any respect on its obligation or dispensing with any part of its force. There is
an impairment of the contract if either party is absolved by law from its performance. 22 Impairment
has also been predicated on laws which, without destroying contracts, derogate from substantial
contractual rights. 23

It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not
absolute and unqualified. The prohibition is general, affording a broad outline and requiring
construction to fill in the details. The prohibition is not to be read with literal exactness like a
mathematical formula, for it prohibits unreasonable impairment only. 24 In spite of the constitutional
prohibition, the State continues to possess authority to safeguard the vital interests of its people.
Legislation appropriate to safeguarding said interests may modify or abrogate contracts already in
effect. 25 For not only are existing laws read into contracts in order to fix the obligations as between
the parties, but the reservation of essential attributes of sovereign power is also read into contracts
as a postulate of the legal order. All contracts made with reference to any matter that is subject to
regulation under the police power must be understood as made in reference to the possible exercise
of that power. 26 Otherwise, important and valuable reforms may be precluded by the simple device
of entering into contracts for the purpose of doing that which otherwise may be prohibited. The policy
of protecting contracts against impairment presupposes the maintenance of a government by virtue
of which contractual relations are worthwhile a government which retains adequate authority to
secure the peace and good order of society. The contract clause of the Constitution must, therefore,
be not only in harmony with, but also in subordination to, in appropriate instances, the reserved
power of the state to safeguard the vital interests of the people. It follows that not all legislations,
which have the effect of impairing a contract, are obnoxious to the constitutional prohibition as to
impairment, and a statute passed in the legitimate exercise of police power, although it incidentally
destroys existing contract rights, must be upheld by the courts. This has special application to
contracts regulating relations between capital and labor which are not merely contractual, and said
labor contracts, for being impressed with public interest, must yield to the common good. 27

In several occasions this Court declared that the prohibition against impairing the obligations of
contracts has no application to statutes relating to public subjects within the domain of the general
legislative powers of the state involving public welfare. 28 Thus, this Court also held that the Blue
Sunday Law was not an infringement of the obligation of a contract that required the employer to
furnish work on Sundays to his employees, the law having been enacted to secure the well-being
and happiness of the laboring class, and being, furthermore, a legitimate exercise of the police
power. 29

In order to determine whether legislation unconstitutionally impairs contract obligations, no


unchanging yardstick, applicable at all times and under all circumstances, by which the validity of
each statute may be measured or determined, has been fashioned, but every case must be
determined upon its own circumstances. Legislation impairing the obligation of contracts can be
sustained when it is enacted for the promotion of the general good of the people, and when the
means adopted to secure that end are reasonable. Both the end sought and the means adopted
must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony
with the constitutional limitation of that power. 30

What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to
insure freedom of belief and religion, and to promote the general welfare by preventing
discrimination against those members of religious sects which prohibit their members from joining
labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of
which work are usually the only means whereby they can maintain their own life and the life of their
dependents. It cannot be gainsaid that said purpose is legitimate.

The questioned Act also provides protection to members of said religious sects against two
aggregates of group strength from which the individual needs protection. The individual employee, at
various times in his working life, is confronted by two aggregates of power — collective labor,
directed by a union, and collective capital, directed by management. The union, an institution
developed to organize labor into a collective force and thus protect the individual employee from the
power of collective capital, is, paradoxically, both the champion of employee rights, and a new
source of their frustration. Moreover, when the Union interacts with management, it produces yet a
third aggregate of group strength from which the individual also needs protection — the collective
bargaining relationship. 31

The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House
Bill No. 5859, which later became Republic Act No. 3350, as follows:

It would be unthinkable indeed to refuse employing a person who, on account of his


religious beliefs and convictions, cannot accept membership in a labor organization
although he possesses all the qualifications for the job. This is tantamount to
punishing such person for believing in a doctrine he has a right under the law to
believe in. The law would not allow discrimination to flourish to the detriment of those
whose religion discards membership in any labor organization. Likewise, the law
would not commend the deprivation of their right to work and pursue a modest
means of livelihood, without in any manner violating their religious faith and/or
belief. 32

It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose —
exempting the members of said religious sects from coverage of union security agreements — is
reasonable.

It may not be amiss to point out here that the free exercise of religious profession or belief is superior
to contract rights. In case of conflict, the latter must, therefore, yield to the former. The Supreme
Court of the United States has also declared on several occasions that the rights in the First
Amendment, which include freedom of religion, enjoy a preferred position in the constitutional
system. 33 Religious freedom, although not unlimited, is a fundamental personal right and
liberty, 34 and has a preferred position in the hierarchy of values. Contractual rights, therefore, must
yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent necessary to avoid the danger.

3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union
averred that said Act discriminates in favor of members of said religious sects in violation of Section
1 (7) of Article Ill of the 1935 Constitution, and which is now Section 8 of Article IV of the 1973
Constitution, which provides:

No law shall be made respecting an establishment of religion, or prohibiting the free


exercise thereof, and the free exercise and enjoyment of religious profession and
worship, without discrimination and preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.

The constitutional provision into only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or
the practice of any form of worship, 35 but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution
are all designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good. 36 Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to discriminate invidiously between
the religions, is invalid, even though the burden may be characterized as being only indirect. 37 But if
the stage regulates conduct by enacting, within its power, a general law which has for its purpose
and effect to advance the state's secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose without imposing such burden. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the government should not be precluded
from pursuing valid objectives secular in character even if the incidental result would be favorable to
a religion or sect. It has likewise been held that the statute, in order to withstand the strictures of
constitutional prohibition, must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. 40 Assessed by these criteria, Republic Act No. 3350 cannot be said to
violate the constitutional inhibition of the "no-establishment" (of religion) clause of the Constitution.

The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or
holy and eternal. It was intended to serve the secular purpose of advancing the constitutional right to
the free exercise of religion, by averting that certain persons be refused work, or be dismissed from
work, or be dispossessed of their right to work and of being impeded to pursue a modest means of
livelihood, by reason of union security agreements. To help its citizens to find gainful employment
whereby they can make a living to support themselves and their families is a valid objective of the
state. In fact, the state is enjoined, in the 1935 Constitution, to afford protection to labor, and
regulate the relations between labor and capital and industry. 41 More so now in the 1973 Constitution
where it is mandated that "the State shall afford protection to labor, promote full employment and
equality in employment, ensure equal work opportunities regardless of sex, race or creed and
regulate the relation between workers and employers. 42

The primary effects of the exemption from closed shop agreements in favor of members of religious
sects that prohibit their members from affiliating with a labor organization, is the protection of said
employees against the aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic
insecurity due to unemployment, which is a serious menace to the health, morals, and welfare of the
people of the State, the Act also promotes the well-being of society. It is our view that the exemption
from the effects of closed shop agreement does not directly advance, or diminish, the interests of
any particular religion. Although the exemption may benefit those who are members of religious
sects that prohibit their members from joining labor unions, the benefit upon the religious sects is
merely incidental and indirect. The "establishment clause" (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or
all religions. 43 The free exercise clause of the Constitution has been interpreted to require that
religious exercise be preferentially aided. 44

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the
constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a
burden that is imposed by union security agreements. It was Congress itself that imposed that
burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it so
deems advisable, could take away the same burden. It is certain that not every conscience can be
accommodated by all the laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some "compelling state interest" intervenes. 45 In
the instant case, We see no such compelling state interest to withhold exemption.

Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it
leaves no right to, and is silent as to the protection of, labor organizations. The purpose of Republic
Act No. 3350 was not to grant rights to labor unions. The rights of labor unions are amply provided
for in Republic Act No. 875 and the new Labor Code. As to the lamented silence of the Act regarding
the rights and protection of labor unions, suffice it to say, first, that the validity of a statute is
determined by its provisions, not by its silence 46 ; and, second, the fact that the law may work
hardship does not render it unconstitutional. 47

It would not be amiss to state, regarding this matter, that to compel persons to join and remain
members of a union to keep their jobs in violation of their religious scrupples, would hurt, rather than
help, labor unions, Congress has seen it fit to exempt religious objectors lest their resistance spread
to other workers, for religious objections have contagious potentialities more than political and
philosophic objections.

Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a
labor — union assuming that such unity and loyalty can be attained through coercion — is not a goal
that is constitutionally obtainable at the expense of religious liberty. 48 A desirable end cannot be
promoted by prohibited means.

4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition
against requiring a religious test for the exercise of a civil right or a political right, is not well taken.
The Act does not require as a qualification, or condition, for joining any lawful association
membership in any particular religion or in any religious sect; neither does the Act require affiliation
with a religious sect that prohibits its members from joining a labor union as a condition or
qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires a
positive act. Republic Act No. 3350 only exempts members with such religious affiliation from the
coverage of closed shop agreements. So, under this Act, a religious objector is not required to do a
positive act — to exercise the right to join or to resign from the union. He is exempted ipso
jure without need of any positive act on his part. A conscientious religious objector need not perform
a positive act or exercise the right of resigning from the labor union — he is exempted from the
coverage of any closed shop agreement that a labor union may have entered into. How then can
there be a religious test required for the exercise of a right when no right need be exercised?

We have said that it was within the police power of the State to enact Republic Act No. 3350, and
that its purpose was legal and in consonance with the Constitution. It is never an illegal evasion of a
constitutional provision or prohibition to accomplish a desired result, which is lawful in itself, by
discovering or following a legal way to do it. 49

5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation,
inasmuch as it grants to the members of certain religious sects undue advantages over other
workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids the denial to any
person of the equal protection of the laws. 50

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. 51 It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. 52 The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. 53 All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. 54 This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. 55

In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. 56 It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. 57 Neither is it necessary that the classification be made with mathematical nicety. 58 Hence
legislative classification may in many cases properly rest on narrow distinctions, 59 for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.

We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies
employees and workers, as to the effect and coverage of union shop security agreements, into those
who by reason of their religious beliefs and convictions cannot sign up with a labor union, and those
whose religion does not prohibit membership in labor unions. Tile classification rests on real or
substantial, not merely imaginary or whimsical, distinctions. There is such real distinction in the
beliefs, feelings and sentiments of employees. Employees do not believe in the same religious faith
and different religions differ in their dogmas and cannons. Religious beliefs, manifestations and
practices, though they are found in all places, and in all times, take so many varied forms as to be
almost beyond imagination. There are many views that comprise the broad spectrum of religious
beliefs among the people. There are diverse manners in which beliefs, equally paramount in the
lives of their possessors, may be articulated. Today the country is far more heterogenous in religion
than before, differences in religion do exist, and these differences are important and should not be
ignored.

Even from the phychological point of view, the classification is based on real and important
differences. Religious beliefs are not mere beliefs, mere ideas existing only in the mind, for they
carry with them practical consequences and are the motives of certain rules. of human conduct and
the justification of certain acts. 60 Religious sentiment makes a man view things and events in their
relation to his God. It gives to human life its distinctive character, its tone, its happiness or
unhappiness its enjoyment or irksomeness. Usually, a strong and passionate desire is involved in a
religious belief. To certain persons, no single factor of their experience is more important to them
than their religion, or their not having any religion. Because of differences in religious belief and
sentiments, a very poor person may consider himself better than the rich, and the man who even
lacks the necessities of life may be more cheerful than the one who has all possible luxuries. Due to
their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted
cheerfully even the most painful and excruciating pains. Because of differences in religious beliefs,
the world has witnessed turmoil, civil strife, persecution, hatred, bloodshed and war, generated to a
large extent by members of sects who were intolerant of other religious beliefs. The classification,
introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.

The classification introduced by said Act is also germane to its purpose. The purpose of the law is
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being
deprived of their right to work and from being dismissed from their work because of union shop
security agreements.

Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time
of its enactment. The law does not provide that it is to be effective for a certain period of time only. It
is intended to apply for all times as long as the conditions to which the law is applicable exist. As
long as there are closed shop agreements between an employer and a labor union, and there are
employees who are prohibited by their religion from affiliating with labor unions, their exemption from
the coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident from its
provision. The fact that the law grants a privilege to members of said religious sects cannot by itself
render the Act unconstitutional, for as We have adverted to, the Act only restores to them their
freedom of association which closed shop agreements have taken away, and puts them in the same
plane as the other workers who are not prohibited by their religion from joining labor unions. The
circumstance, that the other employees, because they are differently situated, are not granted the
same privilege, does not render the law unconstitutional, for every classification allowed by the
Constitution by its nature involves inequality.

The mere fact that the legislative classification may result in actual inequality is not violative of the
right to equal protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it results in some
inequality. 61 Anent this matter, it has been said that whenever it is apparent from the scope of the
law that its object is for the benefit of the public and the means by which the benefit is to be obtained
are of public character, the law will be upheld even though incidental advantage may occur to
individuals beyond those enjoyed by the general public. 62

6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on
social justice is also baseless. Social justice is intended to promote the welfare of all the
people. 63 Republic Act No. 3350 promotes that welfare insofar as it looks after the welfare of those
who, because of their religious belief, cannot join labor unions; the Act prevents their being deprived
of work and of the means of livelihood. In determining whether any particular measure is for public
advantage, it is not necessary that the entire state be directly benefited — it is sufficient that a
portion of the state be benefited thereby.

Social justice also means the adoption by the Government of measures calculated to insure
economic stability of all component elements of society, through the maintenance of a proper
economic and social equilibrium in the inter-relations of the members of the community. 64 Republic
Act No. 3350 insures economic stability to the members of a religious sect, like the Iglesia ni Cristo,
who are also component elements of society, for it insures security in their employment,
notwithstanding their failure to join a labor union having a closed shop agreement with the employer.
The Act also advances the proper economic and social equilibrium between labor unions and
employees who cannot join labor unions, for it exempts the latter from the compelling necessity of
joining labor unions that have closed shop agreements and equalizes, in so far as opportunity to
work is concerned, those whose religion prohibits membership in labor unions with those whose
religion does not prohibit said membership. Social justice does not imply social equality, because
social inequality will always exist as long as social relations depend on personal or subjective
proclivities. Social justice does not require legal equality because legal equality, being a relative
term, is necessarily premised on differentiations based on personal or natural conditions. 65 Social
justice guarantees equality of opportunity 66 , and this is precisely what Republic Act No. 3350
proposes to accomplish — it gives laborers, irrespective of their religious scrupples, equal
opportunity for work.

7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is
not called for — in other words, the Act is not proper, necessary or desirable. Anent this matter, it
has been held that a statute which is not necessary is not, for that reason, unconstitutional; that in
determining the constitutional validity of legislation, the courts are unconcerned with issues as to the
necessity for the enactment of the legislation in question. 67 Courts do inquire into the wisdom of
laws. 68 Moreover, legislatures, being chosen by the people, are presumed to understand and
correctly appreciate the needs of the people, and it may change the laws accordingly. 69 The fear is
entertained by appellant that unless the Act is declared unconstitutional, employers will prefer
employing members of religious sects that prohibit their members from joining labor unions, and thus
be a fatal blow to unionism. We do not agree. The threat to unionism will depend on the number of
employees who are members of the religious sects that control the demands of the labor market. But
there is really no occasion now to go further and anticipate problems We cannot judge with the
material now before Us. At any rate, the validity of a statute is to be determined from its general
purpose and its efficacy to accomplish the end desired, not from its effects on a particular
case. 70 The essential basis for the exercise of power, and not a mere incidental result arising from its
exertion, is the criterion by which the validity of a statute is to be measured. 71

II. We now pass on the second assignment of error, in support of which the Union argued that the
decision of the trial court ordering the Union to pay P500 for attorney's fees directly contravenes
Section 24 of Republic Act No. 875, for the instant action involves an industrial dispute wherein the
Union was a party, and said Union merely acted in the exercise of its rights under the union shop
provision of its existing collective bargaining contract with the Company; that said order also
contravenes Article 2208 of the Civil Code; that, furthermore, Appellee was never actually dismissed
by the defendant Company and did not therefore suffer any damage at all . 72

In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no
industrial dispute involved in the attempt to compel Appellee to maintain its membership in the union
under pain of dismissal, and that the Union, by its act, inflicted intentional harm on Appellee; that
since Appellee was compelled to institute an action to protect his right to work, appellant could
legally be ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant
provides that:

No suit, action or other proceedings shall be maintainable in any court against a


labor organization or any officer or member thereof for any act done by or on behalf
of such organization in furtherance of an industrial dispute to which it is a party, on
the ground only that such act induces some other person to break a contract of
employment or that it is in restraint of trade or interferes with the trade, business or
employment of some other person or with the right of some other person to dispose
of his capital or labor. (Emphasis supplied)

That there was a labor dispute in the instant case cannot be disputed for appellant sought the
discharge of respondent by virtue of the closed shop agreement and under Section 2 (j) of Republic
Act No. 875 a question involving tenure of employment is included in the term "labor dispute". 74 The
discharge or the act of seeking it is the labor dispute itself. It being the labor dispute itself, that very
same act of the Union in asking the employer to dismiss Appellee cannot be "an act done ... in
furtherance of an industrial dispute". The mere fact that appellant is a labor union does not
necessarily mean that all its acts are in furtherance of an industrial dispute. 75 Appellant Union,
therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined
with any unfair labor practice case existing at the time when Appellee filed his complaint before the
lower court.

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article
provides that attorney's fees and expenses of litigation may be awarded "when the defendant's act
or omission has compelled the plaintiff ... to incur expenses to protect his interest"; and "in any other
case where the court deems it just and equitable that attorney's fees and expenses of litigation
should be recovered". In the instant case, it cannot be gainsaid that appellant Union's act in
demanding Appellee's dismissal caused Appellee to incur expenses to prevent his being dismissed
from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be allowed as a
matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the
Court of First Instance of Manila, in its Civil Case No. 58894, appealed from is affirmed, with costs
against appellant Union. It is so ordered.

Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma and
Aquino, JJ., concur.

Separate Opinions

FERNANDO, J, concurring:

The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the
constitutional infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the
learned, scholarly, and comprehensive opinion so typical of the efforts of the ponente, Justice
Zaldivar. Like the rest of my brethren, I concur fully. Considering moreover, the detailed attention
paid to each and every objection raised as to its validity and the clarity and persuasiveness with
which it was shown to be devoid of support in authoritative doctrines, it would appear that the last
word has been written on this particular subject. Nonetheless, I deem it proper to submit this brief
expression of my views on the transcendent character of religious freedom1 and its primacy even as
against the claims of protection to labor,2 also one of the fundamental principles of the Constitution.

1. Religious freedom is identified with the liberty every individual possesses to worship or not a
Supreme Being, and if a devotee of any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that "profession of faith to an active power
that binds and elevates man to his Creator ...."3 The choice of what a man wishes to believe in is his
and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to which the
law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills reigns supreme.
The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of rational
foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It
suffices that for him such a concept holds undisputed sway. That is a recognition of man's freedom.
That for him is one of the ways of self- realization. It would be to disregard the dignity that attaches
to every human being to deprive him of such an attribute. The "fixed star on our constitutional
constellation," to borrow the felicitous phrase of Justice Jackson, is that no official, not excluding the
highest, has it in his power to prescribe what shall be orthodox in matters of conscience — or to
mundane affairs, for that matter.

Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belief
and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal standards."5 There was this qualification though: "But between the
freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with
the established institutions of society and with the law, then the former must yield and give way to the latter. The Government steps in and
either restrains said exercise or even prosecutes the one exercising it."6 It was on that basis that the daily compulsory flag ceremony in
accordance with a statute7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose
members alleged that their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of
Education v. Barnette,8 the American Supreme Court reached a contrary conclusion. Justice Jackson's eloquent opinion is, for this writer,
highly persuasive. Thus: "The case is made difficult not because the principles of its decision are obscure but because the flag involved is
our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even
contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have
intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and
abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to
differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order."9

There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious
freedom in the forum of conscience even as against the command of the State itself: "Much has
been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it
conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain
of power, for government may enforce obedience to laws regardless of scruples. When one's belief
collides with the power of the state, the latter is supreme within its sphere and submission or
punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has
always been maintained. The reservation of that supreme obligation, as a matter of principle, would
unquestionably be made by many of our conscientious and law-abiding citizens. The essence of
religion is belief in a relation to God involving duties superior to those arising from any human
relation." 10 The American Chief Justice spoke in dissent, it is true, but with him in agreement were
three of the foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.

2. As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is
wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a message
that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase Cardozo, a
fundamental principle that drowns all weaker sounds. The labored effort to cast doubt on the validity
of the statutory provision in question is far from persuasive. It is attended by futility. It is not for this
Court, as I conceive of the judicial function, to restrict the scope of a preferred freedom.

3. There is, however, the question of whether such an exception possesses an implication that
lessens the effectiveness of state efforts to protect labor, likewise, as noted, constitutionally
ordained. Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis, it
cannot stand scrutiny. Thought must be given to the freedom of association, likewise an aspect of
intellectual liberty. For the late Professor Howe a constitutionalist and in his lifetime the biographer of
the great Holmes, it even partakes of the political theory of pluralistic sovereignty. So great is the
respect for the autonomy accorded voluntary societies. 11 Such a right implies at the very least that
one can determine for himself whether or not he should join or refrain from joining a labor
organization, an institutional device for promoting the welfare of the working man. A closed shop, on
the other hand, is inherently coercive. That is why, as is unmistakably reflected in our decisions, the
latest of which is Guijarno v. Court of Industrial Relations, 12 it is far from being a favorite of the law.
For a statutory provision then to further curtail its operation, is precisely to follow the dictates of
sound public policy.

The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of
constitutional tradition. That, for me, is the channel to follow.

Separate Opinions

FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic Act No. 3350 is free from the
constitutional infirmities imputed to it was demonstrated in a manner wellnigh conclusive in the
learned, scholarly, and comprehensive opinion so typical of the efforts of the ponente, Justice
Zaldivar. Like the rest of my brethren, I concur fully. Considering moreover, the detailed attention
paid to each and every objection raised as to its validity and the clarity and persuasiveness with
which it was shown to be devoid of support in authoritative doctrines, it would appear that the last
word has been written on this particular subject. Nonetheless, I deem it proper to submit this brief
expression of my views on the transcendent character of religious freedom1 and its primacy even as
against the claims of protection to labor,2 also one of the fundamental principles of the Constitution.

1. Religious freedom is identified with the liberty every individual possesses to worship or not a
Supreme Being, and if a devotee of any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that "profession of faith to an active power
that binds and elevates man to his Creator ...."3 The choice of what a man wishes to believe in is his
and his alone. That is a domain left untouched, where intrusion is not allowed, a citadel to which the
law is denied entry, whatever be his thoughts or hopes. In that sphere, what he wills reigns supreme.
The doctrine to which he pays fealty may for some be unsupported by evidence, devoid of rational
foundation. No matter. There is no requirement as to its conformity to what has found acceptance. It
suffices that for him such a concept holds undisputed sway. That is a recognition of man's freedom.
That for him is one of the ways of self- realization. It would be to disregard the dignity that attaches
to every human being to deprive him of such an attribute. The "fixed star on our constitutional
constellation," to borrow the felicitous phrase of Justice Jackson, is that no official, not excluding the
highest, has it in his power to prescribe what shall be orthodox in matters of conscience — or to
mundane affairs, for that matter.

Gerona v. Secretary of Education 4 speaks similarly. In the language of its ponente, Justice Montemayor: "The realm of belief
and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal standards."5 There was this qualification though: "But between the
freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with
the established institutions of society and with the law, then the former must yield and give way to the latter. The Government steps in and
either restrains said exercise or even prosecutes the one exercising it."6 It was on that basis that the daily compulsory flag ceremony in
accordance with a statute7 was found free from the constitutional objection on the part of a religious sect, the Jehovah's Witnesses, whose
members alleged that their participation would be offensive to their religious beliefs. In a case not dissimilar, West Virginia State Board of
Education v. Barnette,8 the American Supreme Court reached a contrary conclusion. Justice Jackson's eloquent opinion is, for this writer,
highly persuasive. Thus: "The case is made difficult not because the principles of its decision are obscure but because the flag involved is
our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even
contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have
intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and
abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to
differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order."9

There is moreover this ringing affirmation by Chief Justice Hughes of the primacy of religious
freedom in the forum of conscience even as against the command of the State itself: "Much has
been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it
conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain
of power, for government may enforce obedience to laws regardless of scruples. When one's belief
collides with the power of the state, the latter is supreme within its sphere and submission or
punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has
always been maintained. The reservation of that supreme obligation, as a matter of principle, would
unquestionably be made by many of our conscientious and law-abiding citizens. The essence of
religion is belief in a relation to God involving duties superior to those arising from any human
relation." 10 The American Chief Justice spoke in dissent, it is true, but with him in agreement were
three of the foremost jurists who ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.
2. As I view Justice Zaldivar's opinion in that light, my concurrence, as set forth earlier, is
wholehearted and entire. With such a cardinal postulate as the basis of our polity, it has a message
that cannot be misread. Thus is intoned with a reverberating clang, to paraphrase Cardozo, a
fundamental principle that drowns all weaker sounds. The labored effort to cast doubt on the validity
of the statutory provision in question is far from persuasive. It is attended by futility. It is not for this
Court, as I conceive of the judicial function, to restrict the scope of a preferred freedom.

3. There is, however, the question of whether such an exception possesses an implication that
lessens the effectiveness of state efforts to protect labor, likewise, as noted, constitutionally
ordained. Such a view, on the surface, may not be lacking in plausibility, but upon closer analysis, it
cannot stand scrutiny. Thought must be given to the freedom of association, likewise an aspect of
intellectual liberty. For the late Professor Howe a constitutionalist and in his lifetime the biographer of
the great Holmes, it even partakes of the political theory of pluralistic sovereignty. So great is the
respect for the autonomy accorded voluntary societies. 11 Such a right implies at the very least that
one can determine for himself whether or not he should join or refrain from joining a labor
organization, an institutional device for promoting the welfare of the working man. A closed shop, on
the other hand, is inherently coercive. That is why, as is unmistakably reflected in our decisions, the
latest of which is Guijarno v. Court of Industrial Relations, 12 it is far from being a favorite of the law.
For a statutory provision then to further curtail its operation, is precisely to follow the dictates of
sound public policy.

The exhaustive and well-researched opinion of Justice Zaldivar thus is in the mainstream of
constitutional tradition. That, for me, is the channel to follow.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-46863 November 18, 1939

IRINEO MOYA, petitioner,


vs.
AGRIPINO GA. DEL FIERO, respondent.

Elpidio Quirino for petitioner.


Claro M. Recto for respondent.

LAUREL, J.:

This is a petition for review by certiorari of the judgment of the Court of Appeals in the above entitled
case declaring the respondent, Agripino Ga. del Fierro, the candidate-elect for the office of mayor of
the municipality of Paracale, Province of Camarines Norte, with a majority of three votes over his
rival, Irineo Moya. In the general elections held on December 14, 1937, the parties herein were
contending candidates for the aforesaid office. After canvass of the returns the municipal council of
Paracale, acting as board of canvassers, proclaimed the petitioner as the elected mayor of said
municipality with a majority of 102 votes. On December 27, 1937, the respondent field a motion of
protest in the Court of First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939
rendered the judgment hereinbefore mentioned which is sought by the petitioner to be reviewed and
reversed upon the errors alleged to have been committed by the Court of Appeals:

1. In admitting and counting in favor of the respondent, 8 ballots either inadvertently or


contrary to the controlling decisions of this Honorable Court.

2. In admitting and counting in favor of the respondent, 3 ballots marked "R. del Fierro."

3. In admitting and counting in favor of the respondent, 7 ballots marked "Rufino del Firro."

4. In admitting and counting in favor of the respondent, 72 ballots marked "P. del Fierro."

Taking up seriatim the alleged errors, we come to the first assignment involving the eight (8) ballots
now to be mentioned. (1) With reference to ballot Exhibit F-175 in precinct No. 2, alleged to have
been inadvertently admitted in favor of the respondent, such inadvertence raises a question of fact
which could have been corrected by the Court of Appeals and which could we are not in a position to
determine in this proceeding for review by certiorari. Upon the other hand, if the error attributed to
the Court of Appeals consisted in having admitted ballot Exhibit F-175 in precinct No. 2 instead of
the ballot bearing the same number corresponding to precinct No. 1, and this latter ballot clearly
appears admissible for the respondent because the name written on the space for mayor is "Primo
del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty consideration. (2)
Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted for the respondent by the Court of
Appeals, the name written on the space for mayor being "G.T. Krandes." It is true that on the fourth
line for the councilor "Alcalde Pinong del Fierro": appears; but the intention of the elector is rendered
vague and incapable of ascertaining and the ballot was improperly counted for the respondent. As to
this ballot, the contention of the petitioner is sustained (3) Ballot Exhibit F-77 in precinct No. 2 should
also have been rejected by the Court of Appeals. The ballot bears the distinguishing mark "O. K."
placed after the name "M. Lopis" written on space for vice-mayor. The contention of the petitioner in
this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No. 2 was properly admitted for
respondent. On this ballot the elector wrote within the space for mayor the name of Regino Guinto, a
candidate for the provincial board and wrote the respondent's name immediately below the line for
mayor but immediately above the name "M. Lopez" voted by him for vice-mayor. The intention of the
elector to vote for the respondent for the office of the mayor is clear under the circumstances. (5)
Ballot F-131 in precinct No. 1 was also properly counted for the respondent. On this ballot the elector
wrote the respondent's name on the space for vice-mayor, but, apparently realizing his mistake, he
placed an arrow connecting the name of the respondent to the word "Mayor" (Alcalde) printed on the
left side of the ballot. The intention of the elector to vote for the respondent for the office of mayor is
thus evident, in the absence of proof showing that the ballot had been tampered with. (6) Ballot F-7
in precinct No. 5 is admissible for the respondent and the Court of Appeals committed no error in so
adjudicating. Although the name of the respondent is written on the first space for member of the
provincial board, said name is followed in the next line by "Bice" Culastico Palma, which latter name
is followed in the next line by word "consehal" and the name of a candidate for this position. The
intention of the elector to vote for the respondent for the office of mayor being manifest, the objection
of the petitioner to the admission of this ballot is overruled. (7) Ballot F-1 in precinct No. 2 is valid for
the respondent. On this ballot the Christian name of the respondent was written on the second
space for member of the provincial board, but his surname was written on the proper space for
mayor with no other accompanying name or names. The intention of the elector being manifest, the
same should be given effect in favor of the respondent. (8) Ballot F-44 in precinct No. 2 wherein
"Agripino F. Garcia" appears written on the proper space, is valid for the respondent. In his certificate
of candidacy the respondent gave his name as "Agripino Ga. del Fierro." The conclusion of the trial
court, upheld by the Court of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the
contraction "Ga." is not without justification and, by liberal construction, the ballot in question was
properly admitted for the respondent.

The second error assigned by the petitioner refers to three ballots, namely, Exhibit F-119 in precinct
No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in precinct No. 4. These three ballots appear to
be among the 75 ballots found by the Court of Appeals as acceptable for the respondent on the
ground that the initial letter "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned in
the certificate of candidacy of the respondent. The petitioner contends that the initial "R" and not "P".
Even if we could reverse this finding, we do not feel justified in doing so after examining the
photostatic copies of these ballots attached to the herein petition for certiorari. The second
assignment of error is accordingly overruled.

Upon the third assignment of error, the petitioner questions the correctness of the judgment of the
Court of Appeals in adjudicating to the respondent the seven ballots wherein "Rufino del Fierro" was
voted for the office of mayor. We are of the opinion that the position taken by the Court of Appeals is
correct. There was no other candidate for the office of mayor with the name of "Rufino" or similar
name and, as the respondent was districtly identified by his surname on these ballots, the intention
of the voters in preparing the same was undoubtedly to vote for the respondent of the office for
which he was a candidate. lawphi 1.net

The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro" was voted for the
office of mayor, and it is the contention of the petitioner that said ballots should not have been
counted by the Court of Appeals in favor of the respondent. For the identical reason indicated under
the discussion of petitioner's second assignment of error, namely, that "P" stands for "Pino" in "Pino
del Fierro" which is a name mentioned in the certificate of candidacy of the respondent, we hold that
there was no error in the action of the Court of Appeals in awarding the said ballots to the
respondent.

With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot marked as Exhibit F-
77 in precinct No. 2, we are inclined to accept the rest of the disputed ballots for the respondent not
only for the specific reasons already given but also and principally for the more fundamental reason
now to be stated. As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to be the manes by which
the great reservoir of power must be emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and the common weal. Republicanism,
in so far as it implies the adoption of a representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the
established authority. He has a voice in his Government and whenever called upon to act in
justifiable cases, to give it efficacy and not to stifle it. This, fundamentally, is the reason for the rule
that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. Counsel
for both parties have called our attention to the different and divergent rules laid down by this Court
on the appreciation of ballots. It will serve no good and useful purpose for us to engage in the task of
reconciliation or harmonization of these rules, although this may perhaps be undertaken, as no two
cases will be found to be exactly the same in factual or legal environment. It is sufficient to observe,
however, in this connection that whatever might have been said in cases heretofore decided, no
technical rule or rules should be permitted to defeat the intention of the voter, if that intention is
discoverable from the ballot itself, not from evidence aliunde. This rule of interpretation goes to the
very root of the system. Rationally, also, this must be the justification for the suggested liberalization
of the rules on appreciation of ballots which are now incorporated in section 144 of the Election
Code (Commonwealth Act No. 357).
It results that, crediting the petitioner with the two ballots herein held to have been erroneously
admitted by the Court of Appeals for the respondent, the latter still wins by one vote. In view whereof
it becomes unnecessary to consider the counter-assignment of errors of the respondent.

With the modification of the decision of the Court of Appeals, the petition for the writ of certiorari is
hereby dismissed, without pronouncement regarding costs.

Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.