INTERNAL MEMORANDUM

To: Head of the City Legal Office

Date: December 10, 2018

Re: Juan Dela Cruz case – Anti-Profanity Ordinance

____________________________________________________

STATEMENT OF FACTS

The City of Waka is an independent component city in the

Republic of the Philippines. In December 5, 2017, the City Mayor
ratified an ordinance which is referred to as the Anti-Profanity
Ordinance. This ordinance was published and copies were also
posted in three conspicuous places in the city. The ordinance
became effective January 5, 2018.

With the intention of curbing the revolting habit of cursing

and being oblivious to its repercussions; a habit which is often
observed in computer shops and employed by children who
engage in war games and feudal battles who insult each other in
indecent and profane languages. The Sangguniang Panlungsod
believes that this habit of cursing causes the very fabric of morals
and human decency to deteriorate to such a degree that it must
be prevented before any irreparable damage may happen.

The Ordinance specifically states that “computer shops and

arcades found without an Anti-Profanity sign, after the approval of
this ordinance, and having been informed of the Ordinance’s
effectivity shall be apprehended by the Permits and Licensing
Division of the City Government for their non-compliance.” It
obligates computer shops and arcades to cause the hanging or
posting of signs and signages in their business establishments to
announce the observance of the Anti-Profanity Ordinance, in
words such as “Cursing is NOT allowed”, “Profanity prohibited”,
“Bawal Mag-mura”.

Juan Dela Cruz is the owner of several computer shops in

the City of Waka. He is a law-abiding citizen and makes sure that
all licenses and permits are secured the start of every year. He is
considered one of the top 100 taxpayers in the City of Waka.

In November 1, 2018, Juan Dela Cruz received a notice of

cancellation of his Mayor’s Permit and other licenses on the
ground that he failed to post the required notices in his computer
shop. His refusal to do so was intentional because he believed
that the ordinance is unconstitutional. Following the suspension of
his license, he filed a suit before the Regional Trial Court of Waka
to question the constitutionality of the said ordinance claiming that
it violates his and his patrons right under Sec. 4, Article III of the
1987 Constitution. He filed his suit as a taxpayer.

STATEMENT OF ISSUES:

a) Is the Anti-Profanity Ordinance in the City of Waka

Constitutional?

b) Is the procedure in making the Anti-Profanity Ordinance

valid?

c) Does Juan Dela Cruz have a proper standing to file a suit?

DISCUSSION:

The Anti-Profanity Ordinance in the City of Waka may

be against the Constitution, it may not pass the constitutional test
when this will be raised before the courts, this ordinance banning
profanity may go against freedom of speech, which is guaranteed
under the 1987 Philippine Constitution specifically in Article III:

Sec.4. No law shall be passed abridging the freedom

of speech, of expression, or of the press or the right of the
people peaceably to assemble and petition the government
for redress of grievances.1

As stated in the above provision the word “speech” and

“expression” include any form of expression whether oral or
written it may be violated by this ordinance by limiting all the
persons inside the computer shops who play internet games and
in order to express themselves they tend to shout their emotions.

In the case at bar where the license of the computer shop of

Juan Dela Cruz will be cancelled on the ground that he failed to
post the required notices in his computer shop can be questioned
as in the dissenting opinion of Justice Carpio the case of Soriano
vs. Laguardia2 he stated that:

“The three-month suspension cannot be passed off merely

as a preventive suspension that does not partake of a penalty.
The actual and real effect of the three-month suspension is a prior
restraint on expression in violation of a fundamental constitutional
right. Even Congress cannot validly pass a law imposing a three-
month preventive suspension on freedom of expression for
offensive or vulgar language uttered in the past. Congress may
punish such offensive or vulgar language after their utterance,
with damages, fine, or imprisonment; but Congress has no power
to suspend or suppress the people's right to speak freely because
of such utterances. In short, Congress may pass a law punishing
defamation or tortious speech but the punishment cannot be the
suspension or suppression of the constitutional right to freedom of
1
CONSTITUTION, Art. III, Sec. 4
2
Soriano v. Laguardia, G.R. No. 164785 and 165636, March 15, 2010
expression. Otherwise, such law would be abridging the
freedom of speech, of expression, or of the press. If Congress
cannot pass such a law, neither can respondent MTRCB
promulgate a rule or a decision suspending for three months
petitioner's constitutional right to freedom of speech. And of
course, neither can this Court give its stamp of imprimatur to such
an unconstitutional MTRCB rule or decision.

I end this dissenting opinion with a reminder from Justice

Oliver Wendell Holmes that the market place of ideas is still the
best alternative to censorship.3 The market place of ideas makes
freedom of speech robust and allows people to be more tolerant
of opposing views. It has been said that freedom of speech is not
only to freely express oneself within the context of the law but
also to hear what others say, that all may be enlightened,
regardless of how obnoxious or erroneous the opposing views
may be.” 4

If the Congress itself cannot validly pass a law imposing a

three-month preventive suspension on freedom of expression for
offensive or vulgar language uttered in the past the local
government unit cannot suspend the license of the computer shop
of Juan Dela Cruz because of failure to comply with the
requirements of ant-profanity ordinance which can be a violation
of expression for offensive language that can be uttered by the
children who play war games inside.

On the other hand this ordinance may also be constitutional

by the presence of other jurisprudence that allows anti-profanity
not just as a local ordinance but as a law of their state, for
instances a 1962 South Carolina law prohibits cursing on a public
3
Dissenting Opinion of Justice Holmes in Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173
(1919).

4
RUBEN AGPALO, PHILIPPINE CONSTITUTIONAL LAW, 2006, p. 330.
highway or within hearing distance of a church or school. A
Mississippi law, passed in 1848, prohibits using profane or vulgar
language in the presence of two or more people. Those in
violation can receive a $100 fine or up to 30 days in county jail. A
Rhode Island law, enacted in 1896, provides that: “Every person
who shall be guilty of profane swearing and cursing shall be fined
not exceeding five dollars ($5.00).” This law can be argued to be
constitutional because of the fighting word doctrine which in some
lower courts of other countries are still being used, In Chaplinsky
v. New Hampshire this doctrine was defined as the words which
by their very utterance inflict injury or cause an immediate breach
of the peace. 5

There is no law in the Philippines prohibiting such anti-

profanity ordinance, as long as it is not proven that it violates a
certain right of a person it can still validly exist, 6 we cannot say
that the ground which is it is a violation of freedom of speech or
expression is enough for it to become unconstitutional because
the it is always presumed that an ordinance is passed for the
benefit and welfare of the constituents, in case of doubt in the
interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail. 7 This will
enhance the discipline of the people, this is also a good way to
prevent the society on becoming too much liberal that will
degrade their morale.

Also it shall be noted that the state values the dignity of

every human person and guarantees full respect for human

5
David Hudson on fighting words and anti-profanity laws in the US, March 30,2018 < https://-
www.thefire.org/david-hudson-on-fighting-words-and-anti-profanity-laws-in-the-us/>
(visited December 10, 2018)
6
Municipal Ordinances, Local Government Online, Division of Community and Regional
Affairs, December 3,2014 < https://www.commerce.alaska.gov/web/dcra/-
LocalGovernmentOnline/Ordinances/MunicipalOrdinances.aspx> (visited December 10,
2018)
7
CIVIL CODE, Art. 10
rights8, that this ordinance id passed for the protection of every
constituent from being cursed by others and for the maintenance
of public peace and order.

The procedure in making the Anti-Profanity Ordinance

in the city of waka is not valid. The City of Waka is an
independent component city being of such character it should
have an additional publication requirement.

Under the Local Government Code, the main features of the

ordinance shall be published once in a local newspaper. In the
absence of local newspaper, it shall be published in any
newspaper of general circulation. The same shall take effect 10
days from the date a copy is posted in a bulletin board at the
entrance of the Provincial Capitol or City, Municipality or
Barangay hall, and not just posting in three conspicuous places in
the city.9

As stated in Section 59 of the Local Government Code of the

Philippines:

SEC. 59. Effectivity of Ordinances or Resolutions.

(a) Unless otherwise stated in the ordinance or the

resolution approving the local development plan and
public investment program, the same shall take effect
after ten (10) days from the date a copy thereof is
posted in a bulletin board at the entrance of the
provincial capitol or city, municipal, or barangay hall, as
the case may be, and in at least two (2) other
conspicuous places in the local government unit
concerned.

8
CONSTITUTION, Art. II, Sec. 11
9
LOCAL GOVERNMENT CODE, Book I, Title I, Chapter 3, Sec. 59
 In the case at bar the procedural requirements in order for a
City Ordinance to be valid is not met by the Local government
Unit of the City of Waka.

If you will examine carefully Section 59 of the Local

Government Code it shall be noted the word “and” that posting in
a bulletin board and in at least two (2) other conspicuous places
must be done together.

In the same manner in cases involving lack of publication

requirement the Supreme Court held that an ordinance adopted
without such publication is rendered null and void.10

Juan Dela Cruz being a good taxpayer is not exempt from

complying with the ordinance that their city implemented. The
cancellation of his Mayor’s Permit and other licenses on the
ground that he failed to post the required notices in his computer
shop cause him a direct injury that made it proper for him to file a
suit against the local government of the City of Waka, Legal
standing has been defines as a personal and substantial interest
in a case such that the party has sustained direct injury as a result
of the governmental act that is being challenged.11

Because he believes that this ordinance is unconstitutional

he refuses to comply to the requirements of posting notices about
anti-profanity in his computer shop, in this case he puts the law on
his own hands which is not proper, every constituent is bound to
abide to the ordinances promulgated by their local government
unit, this is for compliance in basic rules and regulations that they
have been implemented.

10
Rodriguez v. City of Manila, G.R. No. 22206, September 13, 1924
11
Remulla v. Maliksi, G.R. No171633, September 11, 2013
 CONCLUSION

In the case at bar, the Anti-Profanity Ordinance of the City of

Waka is unconstitutional because prior to its adoption this
ordinance as proposed was not posted in the bulletin board of the
City Hall, this publication requirements are mandatory and not
merely directory, that the publication in excerpt form of a
ordinance is defective and is neither in compliance with the law
nor does it fulfill its purpose because the signage for noticing the
public must be mandatory for all establishments not only in
computer shops where we can find children playing and cursing, it
should be a notice to all the public for the elders to be warned as
well and set as an example for the younger ones if this is to be
done it will be for the better achievement of the intention of
curbing the revolting habit of cursing and being oblivious to its
repercussions. The primary right and duty of the parents in the
rearing of the youth for civic efficiency and the development of
moral character12 shall be observed by the elders, they must be
the model for their children.

Juan Dela Cruz as a taxpayer is not exempt in complying

with the law, he cannot put the law in his hands and decide by his
own although in the present case he has still the proper standing
to file a suit because he has a personal and substantial interest in
the case at bar, he will personally suffer some actual injury
because of the ordinance passed by the City government of
Waka.

RECOMMENDATION

As a result of this analysis, the City of Waka must stick to the

provisions of declaration of principles and state policies in the
1987 Constitution because this will enhance his arguments that

12
CONSTITUTION, Art. II, Sec.12
the ordinance was implemented for the welfare of the people and
for the best interest of the youth.

Also, the laws and the jurisprudence cited must be carefully

examined if it can really support the defense and if it is really
relevant to the case.