Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34836 November 29, 1989
LINDA TARUC, petitioner,
vs.
HON. VICENTE G. ERICTA, in his capacity as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII, and GEN. TAGUMPAY A. NANADIEGO, in his capacity as Judge Advocate General of the AFP, respondents.
Raul S. Roco for petitioner.
PARAS, J.:
This is a petition for certiorari with preliminary injunction seeking the annulment and setting aside of respondent Judge's
Resolution dated February 3, 1972 denying petitioner's motion to quash dated January 25, 1972 insofar as it questions the constitutionality of Republic Act No. 1700, otherwise known as the Anti-Subversion Act; and the issuance of a writ of preliminary injunction enjoining respondent judge from proceeding with the preliminary investigation of Criminal Case No. Q1623 with respect to herein petitioner.
Republic Act No. 1700 was approved on June 20,1957.
On November 13, 1971, herein petitioner was charged by Col. Tagumpay A. Nanadiego, Judge Advocate General in Criminal Case No. Q-1623 before the Court of First Instance of Rizal, Quezon City Branch (Rollo, p. 14), with 45 others, designated only as John Does, with violation of Section 4 of Republic Act No. 1700, which penalizes persons who, after the approval of the Act, are found, after trial, "knowingly, willfully and by overt acts" to have joined the Communist Party of the Philippines (CCP) or to have maintained their membership therein, Pursuant to Section 7 of the Act, a preliminary investigation was thereupon held by respondent Judge to whose sala the criminal complaint was assigned.
On January 25, 1972, petitioner filed a motion to quash (Rollo, p. 19) on the ground that the Act was unconstitutional and therefore the facts alleged in the complaint did not constitute a crime, and consequently the court did not have any jurisdiction over the offense charged.
The following day, January 26, 1972, respondent judge issued an order for the arrest of petitioner and of three others after finding them prima facie guilty of the charge. No bail was fixed for petitioner (Rollo, p. 65). Accordingly, a warrant of arrest was issued on the same date (Rollo, p. 29), but petitioner could not be located and to date remains at large (Rollo, p. 99).
On February 2, 1972, counsel for petitioner filed a motion for reconsideration of the order of arrest and in the alternative that she be released on bail (Rollo, p. 22).
Meantime, respondent judge issued his questioned order of February 3, 1972 (Rollo, p. 21), which reads as follows:
The motion to dismiss filed for and in behalf of respondent Carlos Jacinto dated February 1, 1972 which only repeats arguments adduced in the motion to dismiss filed by Senator Jose W. Diokno for and in behalf of respondents Teresito Sison, Angelo delos Reyes, by Atty, Crisostomo Ibarra filed for and in behalf of respondent Victor Felipe, by Atty. Amauri Tiglao for and in behalf of respondent Raquel Edralin, by Atty. Raul Roco for and in behalf of respondents Victor Magdaraog and Linda Taruc is hereby DENIED on the same ground that the Court denied similar motion to dismiss.
In an order dated February 4, 1972, respondent Judge denied Petitioner's motion for reconsideration of the order of arrest but granted her petition for bail in the amount of P30,000.00 (Rollo, p. 24).
On February 9, 1972, petitioner, again through counsel, filed a motion to reduce the bail from P30,000.00 to P10,000.00 (Rollo, p. 25) which was denied by respondent judge in an Order dated February 10, 1972 (Rollo, p. 28).
Instant petition was filed by petitioner on March 14, 1972 (Rollo, p. 1). The Solicitor General filed the Answer on behalf of Respondents on April 8,1972 (Rollo, p. 42).
Having practically terminated the preliminary investigation, on May 18, 1972, respondent Judge ordered the City Fiscal of Quezon City to file the information against petitioner and 55 others as officers or ranking leaders of the' Communist Party of the Philippines or of any subversive organization penalized by the first proviso of Section 4 of Republic Act 1700 with the penalty of prision mayor to death (Rollo, p. 70). The information was filed by the City Fiscal of Quezon City on June 14, 1972 (Rollo, p. 81).
The memorandum for the respondents was filed by the Solicitor General on June 30, 1972 (Rollo, p. 95); the memorandum for petitioner was filed on September 1, 1972 (Rollo, p. 144).
The legal issues raised by petitioner (Rollo, p. 145) for resolution of the Court are the following:
I. Whether or not R.A. 1700, otherwise known as the Anti-Subversion Law is unconstitutional;
II. Whether or not the lower court has jurisdiction to proceed with the complaint filed against petitioner under R.A. 1700 which petitioner claims to be patently unconstitutional.
It is evident that the main issue is the constitutionality of R.A. 1700. The Court has already resolved the issue in the case of People v. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382, where it upheld the constitutionality of the Act, declaring it not to be a bill of attainder, nor an infringement of the freedom of expression and freedom of association.
Acting on the petition, the Court RESOLVED to DISMISS the same for lack of merit.
Fernan, C.J., Melencio-Herrera, Feliciano, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Gutierrez, Jr., J., in the result.
Narvasa, J., is on leave.
Separate Opinions
SARMIENTO, J., dissenting:
I find that subsequent to People v. Ferrer 1 decided almost sixteen years ago, the odyssey to odyssey from which the nation has since journeyed, commenced by the treacherous imposition of one-man rule, the glorious revolution of February, 1986 that ended it, and the adoption of a new Constitution founded avowedly on a truly democratic framework, is a lesson that to my mind has significantly mitigated the teaching of Ferrer. Notwithstanding the authoritativeness. Ferrer has since commanded and the threat its reexamination will pose, arguably, to judicial stability, I am of the opinion, nevertheless, that in the midst of the dramatic changes ushered in by "EDSA", the question of whether or not Republic Act No. 1700 (Anti-Subversion Law) is unconstitutional is a question that has not been laid to rest.
I likewise do so in the light of the reenactment of Republic Act No. 1700 as Executive Order No. 167 (REPEALING PRESIDENTIAL DECREES NOS. 1835 and 1975, AND REVIVING REPUBLIC ACT NO. 1700 ENTITLED "AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND SIMILAR ASSOCIATIONS, PENALIZING MEMBERSHIP THEREIN AND FOR OTHER PURPOSES"), promulgated on May 5, 1987, a development that, I submit, "re-enacts" the controversy that had beleaguered the Anti-Subversion Law Ferrer had purportedly put to rest.
I find reason, then, for a second look at the statute, its implications, in particular, as a revived law, to contemporary realities.
People v. Ferrer was decided amid challenges that Republic Act No. 1700: (1) was a bill of attainder (2) that, consequently, it offended due process; and that (3) it was an abridgment of freedom of expression and association enshrined in the Constitution (1935 vintage). Mr. Justice Castro, speaking for the majority, disagreed that it was a bill of attainder because "guilt still has to be established ... that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power." 2 In his opinion, however, Mr. Justice Fernando said that "the mere fact that a criminal case would have to be instituted would not save the statute." 3
Like Fernando, I agree that the fact that an accused "Communist" has to be in any case haled into court to determine whether he had joined the Communist movement "knowingly, willfully and by overt acts" 4
will not rescue the Act from its infirmity. The Act has declared the Communist Party of the Philippines (CPP) "an organized conspiracy to overthrow the Government of the Republic of the Philippines," 5 and if it is so, it follows that the members running it are co-conspirators in the same unlawful activity. Otherwise, they would not be members. Membership, especially in an organization espousing revolutionary change, cannot rationally be involuntary. One made to join the movement against his will is no member but a captive. And obviously, what the law penalizes is membership, not captivity. To be sure, a mere captive or hostage for that matter, faces an acquittal under the Act but in that event, he would have been declared innocent not because he was not a knowing member but because he was no member at all. A judicial trial then, would serve no meaningful purpose other than to declare the accused member's guilt, a guilt pre-determined by statute. That the accused's guilt "still has to be established" judicially is a plain effort to rationalize what Pimlott would call "lapses from high standards where the cause seems to ... good."
By calling the CPP "an organized conspiracy to overthrow the Government of the Republic of the Philippines" 6 the Act declares in fact the CPP "and similar associations 7 illegal organizations without obviously, the benefit of trial. It does not, please note, make punishable the "overthrow of the Government" 8 (by force) (since, at any rate, rebellion is an offense already penalized by the Revised Penal Code). What it condemns, ultimately is simple membership in the CPP and allied groups because the CPP and such allied groups are, precisely, "an organized conspiracy" out to topple the existing Government.
Accordingly, the Anti-Subversion Law is not directed against conduct (the takeover of the Government by the CPP through violent means) but rather, against a specific group or members thereof it has "found" guilty of plotting to seize State power by means of force. I submit that makes the Act a bill of attainder as it is defined in Constitutional adjudication, that is, "a legislative act which inflicts punishment without trial." 9 This dissent does not profess to deny the State its basic right to defend itself against assaults upon its security and integrity. But as Fernando cautioned, "our remedies ... must not be repugnant to the Constitution." 10 We would be no better than the "evil" we precisely seek to suppress.
I likewise find that Republic Act No. 1700 offensive to intellectual liberty. Purportedly, the Anti-Subversion Law 'is aimed against conspiracies to overthrow the Government by force, violence or other illegal means." 11 Yet because it singles out the CPP, what it in fact bans is "Communist" thought (Marxism-Leninism- Maoism) or advocacy, since Communism rests supposedly on a credo of "armed struggle" preliminary to the establishment of a "communist form of government." 12 (It would not apparently apply to right-wing cabals [that have since increasingly made their presence felt] in spite likewise of the violent character of the war they are waging because precisely of the anti-communist complexion of their cause.) This to me treads perilously close to abridgment of freedom of thought and expression the very bedrock of a democratic regime the law is in fact supposed to preserve and protect.
I also find it to be bare intolerance to dissent or other non-conformist Ideas, the right to which the Constitution not only protects but encourages even more vigorously. "Even those who oppose a democratic form of government cannot be silenced," 13 said Fernando. Indeed, it has been stated and restated, in Holmesian fashion, that democracy means freedom not only for the thought we agree with but for the thought that we hate. So also has it been said, Communism is an Idea that can only be defeated with a better Idea. To many, it is the supreme irony of the democratic structure that anti-democratic forces should be allowed to hold sway, one way or another, yet, the structure is democratic because of its tolerance of opponents.
It is beside the point that this Court itself has, since 1932, 14 recognized the Communist Party [then, the Partido Komunista ng Pilipinas (PKP), precursor of the CPP] as a serious threat to free society. If that were the case, I do not think that the Government is, or has been, wanting in resources in confronting challenges to its authority. The provisions on treason, rebellion, sedition, and other crimes against national security 15 and public order 16 are in my view formidable safeguards against actual acts of aggression against the duly constituted leadership, not only from the CPP-NPA-NDF "or similar associations" but even from armed right-wing elements. 17
In registering this dissent I hasten to state furthermore that I am not advocating the cause of Communism, much less am I speaking on behalf of the underground National-Democratic movement. According to Fernando, Communism is an Ideology fundamentally at war with our cherished values and traditions. 18 Fernando of course, is entitled to his opinion, but let the matter be, in any event, tested in the democratic marketplace of Ideas, and may the better debater win.
The shadow the Anti-Subversion Act has cast upon the so-called "legal Left" is particularly ominous. As it is worded, the Act applies to "similar associations", meaning to say groups akin to the CPP which is supposed to stand for a violent takeover of government power. To be sure, it is a matter of opinion whether the legal Left is a "similar association" since like the CPP, it subscribes to radical change, but as it (the Left) would put it, unlike the clandestine organization, it seeks change by the ways of peace (mainly, protest and related mass actions). But let me reiterate, it is a matter of opinion, and opinions, frequently, differ. What is a legitimate protest movement to one may well be a Communist front to another.
In airing this concern, I do not think I can be accused of raising some imagined fear. Arguably, Leftism (and/or genuine Nationalism) and Communism are half- brothers in the sense that both advocate radical change in society, and advocate it passionately. It is true that what Republic Act No. 1700 punishes is Communism, or in its own language, the Communist conspiracy, and not Leftism or Nationalism, but the question is, where does one draw the line? Apparently, the Act has not drawn one, although one exists somewhere. And there lies the rub, especially with a conservative military establishment alleged to be hostile to the Left.
The reenactment of Republic Act No. 1700 (as Executive Order No. 167) did not, of course, cure its defect but as I put it, "reenacted" it. My personal opinion is that we ought to have known better. The nightmarish years of one-man rule are hopefully behind us, but let not their painful lessons be lost on us.
The dictatorial regime rose to power primarily on a premise of a Communist bloodbath that allegedly awaited the Filipino people, while it unleashed its own brand of terror. It is a story that has been recounted over and over, not only here but worldwide, but I cannot perhaps put it any better than Claudio Teehankee, former Chief Justice of this Court, in his brilliant valedictorian and reminiscences on the dark, martial law years: y
These substantial checks by the legislature as well as by the judiciary on the Chief Executive's power to proclaim martial law or to suspend the privilege of the writ of habeas corpus were meant to forestall a recurrence of the long and horrible nightmare of the past regime when one single clause, the Commander-in-Chief clause of the Constitution then in force that authorized the President to declare martial law was held to have nullified the entire Constitution and the Bill of Rights and justified the then President's taking over "absolute command" of the nation and that the people could "only trust and pray that, giving him their own loyalty with utmost patriotism, (he) will not fail them." Thus, persons held under Presidential Commitment or Detention Orders were detained indefinitely without charges, yet had no recourse to the courts. Even if they were acquitted in court, the military would not release them until and unless the then President lifted the preventive detention order. It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the President-dictator's perpetuation in office and the security of his relatives and some officials in high positions and their protection from public accountability of their acts of venality and deception in government many of which were of public knowledge.
Draconian decrees were issued whereby many were locked up indefinitely for "rumor-mongering", "unlawful use of means of publication" and unlawful utterances and alarms and scandals. While the people for the most part suffered in silence and waited, others never gave up the struggle for truth, freedom, justice and democracy a common commitment which is what makes a people a nation instead of a gathering of self seeking individuals. The national will was systematically undermined to the point of national mockery that the day of imposition of martial law was proclaimed as 'National Thanksgiving Day.' As the Court observed through Mr. Justice Gutierrez in Animas vs. Minister of National Defense the era of martial law when military tribunals against all tenets of due process, were conferred jurisdiction over common crimes and civilians their glorification with the downgrading of judicial prestige and "the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure."
5. The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr. within minutes of his arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience of the nation. After three years of exile following almost eight years of detention since martial law, Aquino although facing the military commission's predetermined death sentence, supra, yet refused proper travel documents, was returning home "to strive for genuine national reconciliation founded on justice." Me late Senator Jose W. Diokno who passed away this year was among the first victims of the martial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their homes. Their wives visitation privileges were suspended and they lost all contact for over a month. It turned out that Aquino had smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of them were flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in September, 1974 after almost two years of detention. No charges of any kind were ever filed against him. His only fault was that he was a possible rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the Development Academy of the Philippines, was among the hard-working government functionaries who bad been radicalized and gave up their government positions. Morales went underground on the night he was supposed to receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government, serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering and misery to the broad masses of the Filipino people. (I) refuse to take any more part of this. I have had enough of this regimes tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court pricked the conscience of many as he asked on the front page of the college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He was locked up in the military camp and released only when he was near death from a severe attack of asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the gut issue in 1971-he pressed for a "non- partisan Constitutional Convention and demanded that the then president soon to turn dictator "put down in writing" that he was not going to manipulate the Constitution to remove his disqualification to run for a thrid term or perpetuate himself in office and was called down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel movement in Mindanao. Another activist honor student leader, Emmanuel Yap, son of another eminent member of the Court, was to disappear on Valentine's Day in 19-16 at the young age of 24, reportedly picked up by military agents from of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles (the standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building. This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs. Comelec, through Mr. Justice Cruz, "said these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession; the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, 'swifter than eagles and stronger than lions.
6. The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble sacrifices of the countless brave and patriotic men and women who fell as martyrs and victims during the long dark years of the deposed regime. In vacating the death sentence imposed on the petitioner who survived the holocaust, we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for the restoration of truth, decency, justice and freedom in our beloved land. Due recognition must be given also that 85'7c, of the Armed Forces of the Philippines readily joined the EDSA revolt and redeemed the honor of the military by recognizing civilian supremacy and the supreme mandate given by the people to the winners of the election. ... 19
I am aware of the doctrine of long standing that "[i]n the interpretation of reenacted statutes the court will follow the construction which they received when previously in force, 20 but I trust that this is not an iron-clad rule. In many cases, we have not hesitated in reversing ourselves whenever warranted. 21 I am likewise aware that the issue herein is not the constitutionally of Executive Order No. 167 but so also am I aware that whatever pronouncement we make on Republic Act No. 1700 herein will have its own implications on the validity of the reenacting statute.
In addition to my own opinion expressed above, I find the law repugnant, as well, to the new Constitution's guaranties on the "ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS." I quote:
Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with Identifiable leadership, membership, and structure. 22
Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. 23
The existing Constitution is an effort not only to correct the excesses of dictatorial rule but to institutionalize the Ideals of people's power upon which the Charter rests and from which this very regime was birthed. As Teehankee observed, whereas the Marcos Constitution 24 assured the concentration of all essential powers of government: executive, legislative (through its Transitory Provisions and later, Amendment No. 6), and judicial (through military tribunals the Transitory Provisions had allegedly sanctioned), in one man, its 1987 counterpart promises a pluralistic society 25 and assures better opportunities for a meaningful participation by the people in the charting of the national destiny. 26
In brief, we are once more, an open society, 27 where the majority rules, but the rights of the minority are respected, and its voice not only tolerated, but heard. Let us exorcise, finally, the spectre of Communism that has long haunted the national psyche. We have better things to do, like meeting the challenges of development, progress, and prosperity for our long-suffering nation. I find that this is a serious concern that ought to head the national agenda.
Cruz, J., I join in Mr. Justice Sarmiento in his excellent dissent.
Separate Opinions
SARMIENTO, J., dissenting:
I find that subsequent to People v. Ferrer 1 decided almost sixteen years ago, the odyssey to odyssey from which the nation has since journeyed, commenced by the treacherous imposition of one-man rule, the glorious revolution of February, 1986 that ended it, and the adoption of a new Constitution founded avowedly on a truly democratic framework, is a lesson that to my mind has significantly mitigated the teaching of Ferrer. Notwithstanding the authoritativeness. Ferrer has since commanded and the threat its reexamination will pose, arguably, to judicial stability, I am of the opinion, nevertheless, that in the midst of the dramatic changes ushered in by "EDSA", the question of whether or not Republic Act No. 1700 (Anti-Subversion Law) is unconstitutional is a question that has not been laid to rest.
I likewise do so in the light of the reenactment of Republic Act No. 1700 as Executive Order No. 167 (REPEALING PRESIDENTIAL DECREES NOS. 1835 and 1975, AND REVIVING REPUBLIC ACT NO. 1700 ENTITLED "AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND SIMILAR ASSOCIATIONS, PENALIZING MEMBERSHIP THEREIN AND FOR OTHER PURPOSES"), promulgated on May 5, 1987, a development that, I submit, "re-enacts" the controversy that had beleaguered the Anti-Subversion Law Ferrer had purportedly put to rest.
I find reason, then, for a second look at the statute, its implications, in particular, as a revived law, to contemporary realities.
People v. Ferrer was decided amid challenges that Republic Act No. 1700: (1) was a bill of attainder (2) that, consequently, it offended due process; and that (3) it was an abridgment of freedom of expression and association enshrined in the Constitution (1935 vintage). Mr. Justice Castro, speaking for the majority, disagreed that it was a bill of attainder because "guilt still has to be established ... that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power." 2 In his opinion, however, Mr. Justice Fernando said that "the mere fact that a criminal case would have to be instituted would not save the statute." 3
Like Fernando, I agree that the fact that an accused "Communist" has to be in any case haled into court to determine whether he had joined the Communist movement "knowingly, willfully and by overt acts" 4
will not rescue the Act from its infirmity. The Act has declared the Communist Party of the Philippines (CPP) "an organized conspiracy to overthrow the Government of the Republic of the Philippines," 5 and if it is so, it follows that the members running it are co-conspirators in the same unlawful activity. Otherwise, they would not be members. Membership, especially in an organization espousing revolutionary change, cannot rationally be involuntary. One made to join the movement against his will is no member but a captive. And obviously, what the law penalizes is membership, not captivity. To be sure, a mere captive or hostage for that matter, faces an acquittal under the Act but in that event, he would have been declared innocent not because he was not a knowing member but because he was no member at all. A judicial trial then, would serve no meaningful purpose other than to declare the accused member's guilt, a guilt pre-determined by statute. That the accused's guilt "still has to be established" judicially is a plain effort to rationalize what Pimlott would call "lapses from high standards where the cause seems to ... good."
By calling the CPP "an organized conspiracy to overthrow the Government of the Republic of the Philippines" 6 the Act declares in fact the CPP "and similar associations 7 illegal organizations without obviously, the benefit of trial. It does not, please note, make punishable the "overthrow of the Government" 8 (by force) (since, at any rate, rebellion is an offense already penalized by the Revised Penal Code). What it condemns, ultimately is simple membership in the CPP and allied groups because the CPP and such allied groups are, precisely, "an organized conspiracy" out to topple the existing Government.
Accordingly, the Anti-Subversion Law is not directed against conduct (the takeover of the Government by the CPP through violent means) but rather, against a specific group or members thereof it has "found" guilty of plotting to seize State power by means of force. I submit that makes the Act a bill of attainder as it is defined in Constitutional adjudication, that is, "a legislative act which inflicts punishment without trial." 9 This dissent does not profess to deny the State its basic right to defend itself against assaults upon its security and integrity. But as Fernando cautioned, "our remedies ... must not be repugnant to the Constitution." 10 We would be no better than the "evil" we precisely seek to suppress.
I likewise find that Republic Act No. 1700 offensive to intellectual liberty. Purportedly, the Anti-Subversion Law 'is aimed against conspiracies to overthrow the Government by force, violence or other illegal means." 11 Yet because it singles out the CPP, what it in fact bans is "Communist" thought (Marxism-Leninism- Maoism) or advocacy, since Communism rests supposedly on a credo of "armed struggle" preliminary to the establishment of a "communist form of government." 12 (It would not apparently apply to right-wing cabals [that have since increasingly made their presence felt] in spite likewise of the violent character of the war they are waging because precisely of the anti-communist complexion of their cause.) This to me treads perilously close to abridgment of freedom of thought and expression the very bedrock of a democratic regime the law is in fact supposed to preserve and protect.
I also find it to be bare intolerance to dissent or other non-conformist Ideas, the right to which the Constitution not only protects but encourages even more vigorously. "Even those who oppose a democratic form of government cannot be silenced," 13 said Fernando. Indeed, it has been stated and restated, in Holmesian fashion, that democracy means freedom not only for the thought we agree with but for the thought that we hate. So also has it been said, Communism is an Idea that can only be defeated with a better Idea. To many, it is the supreme irony of the democratic structure that anti-democratic forces should be allowed to hold sway, one way or another, yet, the structure is democratic because of its tolerance of opponents.
It is beside the point that this Court itself has, since 1932, 14 recognized the Communist Party [then, the Partido Komunista ng Pilipinas (PKP), precursor of the CPP] as a serious threat to free society. If that were the case, I do not think that the Government is, or has been, wanting in resources in confronting challenges to its authority. The provisions on treason, rebellion, sedition, and other crimes against national security 15 and public order 16 are in my view formidable safeguards against actual acts of aggression against the duly constituted leadership, not only from the CPP-NPA-NDF "or similar associations" but even from armed right-wing elements. 17
In registering this dissent I hasten to state furthermore that I am not advocating the cause of Communism, much less am I speaking on behalf of the underground National-Democratic movement. According to Fernando, Communism is an Ideology fundamentally at war with our cherished values and traditions. 18 Fernando of course, is entitled to his opinion, but let the matter be, in any event, tested in the democratic marketplace of Ideas, and may the better debater win.
The shadow the Anti-Subversion Act has cast upon the so-called "legal Left" is particularly ominous. As it is worded, the Act applies to "similar associations", meaning to say groups akin to the CPP which is supposed to stand for a violent takeover of government power. To be sure, it is a matter of opinion whether the legal Left is a "similar association" since like the CPP, it subscribes to radical change, but as it (the Left) would put it, unlike the clandestine organization, it seeks change by the ways of peace (mainly, protest and related mass actions). But let me reiterate, it is a matter of opinion, and opinions, frequently, differ. What is a legitimate protest movement to one may well be a Communist front to another.
In airing this concern, I do not think I can be accused of raising some imagined fear. Arguably, Leftism (and/or genuine Nationalism) and Communism are half- brothers in the sense that both advocate radical change in society, and advocate it passionately. It is true that what Republic Act No. 1700 punishes is Communism, or in its own language, the Communist conspiracy, and not Leftism or Nationalism, but the question is, where does one draw the line? Apparently, the Act has not drawn one, although one exists somewhere. And there lies the rub, especially with a conservative military establishment alleged to be hostile to the Left.
The reenactment of Republic Act No. 1700 (as Executive Order No. 167) did not, of course, cure its defect but as I put it, "reenacted" it. My personal opinion is that we ought to have known better. The nightmarish years of one-man rule are hopefully behind us, but let not their painful lessons be lost on us.
The dictatorial regime rose to power primarily on a premise of a Communist bloodbath that allegedly awaited the Filipino people, while it unleashed its own brand of terror. It is a story that has been recounted over and over, not only here but worldwide, but I cannot perhaps put it any better than Claudio Teehankee, former Chief Justice of this Court, in his brilliant valedictorian and reminiscences on the dark, martial law years: y
These substantial checks by the legislature as well as by the judiciary on the Chief Executive's power to proclaim martial law or to suspend the privilege of the writ of habeas corpus were meant to forestall a recurrence of the long and horrible nightmare of the past regime when one single clause, the Commander-in-Chief clause of the Constitution then in force that authorized the President to declare martial law was held to have nullified the entire Constitution and the Bill of Rights and justified the then President's taking over "absolute command" of the nation and that the people could "only trust and pray that, giving him their own loyalty with utmost patriotism, (he) will not fail them." Thus, persons held under Presidential Commitment or Detention Orders were detained indefinitely without charges, yet had no recourse to the courts. Even if they were acquitted in court, the military would not release them until and unless the then President lifted the preventive detention order. It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the President-dictator's perpetuation in office and the security of his relatives and some officials in high positions and their protection from public accountability of their acts of venality and deception in government many of which were of public knowledge.
Draconian decrees were issued whereby many were locked up indefinitely for "rumor-mongering", "unlawful use of means of publication" and unlawful utterances and alarms and scandals. While the people for the most part suffered in silence and waited, others never gave up the struggle for truth, freedom, justice and democracy a common commitment which is what makes a people a nation instead of a gathering of self seeking individuals. The national will was systematically undermined to the point of national mockery that the day of imposition of martial law was proclaimed as 'National Thanksgiving Day.' As the Court observed through Mr. Justice Gutierrez in Animas vs. Minister of National Defense the era of martial law when military tribunals against all tenets of due process, were conferred jurisdiction over common crimes and civilians their glorification with the downgrading of judicial prestige and "the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure."
5. The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr. within minutes of his arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience of the nation. After three years of exile following almost eight years of detention since martial law, Aquino although facing the military commission's predetermined death sentence, supra, yet refused proper travel documents, was returning home "to strive for genuine national reconciliation founded on justice." Me late Senator Jose W. Diokno who passed away this year was among the first victims of the martial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their homes. Their wives visitation privileges were suspended and they lost all contact for over a month. It turned out that Aquino had smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of them were flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in September, 1974 after almost two years of detention. No charges of any kind were ever filed against him. His only fault was that he was a possible rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the Development Academy of the Philippines, was among the hard-working government functionaries who bad been radicalized and gave up their government positions. Morales went underground on the night he was supposed to receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government, serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering and misery to the broad masses of the Filipino people. (I) refuse to take any more part of this. I have had enough of this regimes tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court pricked the conscience of many as he asked on the front page of the college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He was locked up in the military camp and released only when he was near death from a severe attack of asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the gut issue in 1971-he pressed for a "non- partisan Constitutional Convention and demanded that the then president soon to turn dictator "put down in writing" that he was not going to manipulate the Constitution to remove his disqualification to run for a thrid term or perpetuate himself in office and was called down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel movement in Mindanao. Another activist honor student leader, Emmanuel Yap, son of another eminent member of the Court, was to disappear on Valentine's Day in 19-16 at the young age of 24, reportedly picked up by military agents from of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles (the standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building. This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs. Comelec, through Mr. Justice Cruz, "said these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession; the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, 'swifter than eagles and stronger than lions.
6. The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble sacrifices of the countless brave and patriotic men and women who fell as martyrs and victims during the long dark years of the deposed regime. In vacating the death sentence imposed on the petitioner who survived the holocaust, we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for the restoration of truth, decency, justice and freedom in our beloved land. Due recognition must be given also that 85'7c, of the Armed Forces of the Philippines readily joined the EDSA revolt and redeemed the honor of the military by recognizing civilian supremacy and the supreme mandate given by the people to the winners of the election. ... 19
I am aware of the doctrine of long standing that "[i]n the interpretation of reenacted statutes the court will follow the construction which they received when previously in force, 20 but I trust that this is not an iron-clad rule. In many cases, we have not hesitated in reversing ourselves whenever warranted. 21 I am likewise aware that the issue herein is not the constitutionally of Executive Order No. 167 but so also am I aware that whatever pronouncement we make on Republic Act No. 1700 herein will have its own implications on the validity of the reenacting statute.
In addition to my own opinion expressed above, I find the law repugnant, as well, to the new Constitution's guaranties on the "ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS." I quote:
Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with Identifiable leadership, membership, and structure. 22
Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. 23
The existing Constitution is an effort not only to correct the excesses of dictatorial rule but to institutionalize the Ideals of people's power upon which the Charter rests and from which this very regime was birthed. As Teehankee observed, whereas the Marcos Constitution 24 assured the concentration of all essential powers of government: executive, legislative (through its Transitory Provisions and later, Amendment No. 6), and judicial (through military tribunals the Transitory Provisions had allegedly sanctioned), in one man, its 1987 counterpart promises a pluralistic society 25 and assures better opportunities for a meaningful participation by the people in the charting of the national destiny. 26
In brief, we are once more, an open society, 27 where the majority rules, but the rights of the minority are respected, and its voice not only tolerated, but heard. Let us exorcise, finally, the spectre of Communism that has long haunted the national psyche. We have better things to do, like meeting the challenges of development, progress, and prosperity for our long-suffering nation. I find that this is a serious concern that ought to head the national agenda.
Cruz, J., I join in Mr. Justice Sarmiento in his excellent dissent.
Footnotes
1 Nos. L-32613-14, December 27,1972, 48 SCRA 382.
2 Supra, 401.
3 Supra, 426; Fernando, J., Dissenting.
4 Rep. Act No. 1700, sec.
5 Supra, sec. 1.
6 Supra.
7 Supra.
8 Supra.
9 People v. Ferrer, supra, citing Cummings v. United States, 4 Wall, 277 (1867).
10 Supra, 426.
11 Supra, 412.
12 Exec. Ord. No. 167.
13 People v. Ferrer, supra, 427.
14 See supra, 405.
15 REV. PEN. CODE, art. 114, et seq., as amended.
16 Supra, art. 134, et seq., as amended.
17 See U.S. v. Robel, 389 U.S. 258 (1967).
18 See People v. Ferrer, supra, 430-431.
19 Olaguer v. Military Commission No. 34, Nos. L-54558, 69882, May 22,1987,150 SCRA 144,174-178, Teehankee, C.J., Concurring.
20 In re McCulloch Dick, 38 Phil. 41, 77 (1918).
21 See, e.g., Tanada v. Tuvera No. L-63915, April 24, 1985, 136 SCRA 27; December 29,1986,146 SCRA 446; Manotok u. National Housing Authority, Nos. 55166-7, May 21, 1987, 150 SCRA 89. In Lansang v. Garcia, Nos. L-33964-5, 33973, 33982, 34004, 34013, 34039, 34265, 34339, December 11, 1971, 42 SCRA 448, we made a dramatic turnaround in relation to Barcelon v. Baker, 5 Phil. 87 (1905), and Montenegro v. Castaneda, 91 Phil. 882 (1952). See also Stonehill v. Diokno, No. L-19550, June 19, 1967, 20 SCRA 383, in relation to Moncado v. People's Court, 80 Phil. 1 (1948).
22 CONST., art. XIII, sec. 15.
23 Supra, sec. 16.
24 As distinguished from the 1973 draft document framed by the 1971 Constitutional Convention. Since it was submitted to "citizens' assemblies" for "ratification" on January 17, 1973, it had suffered amendments after amendments numbering, by 1985, not less than 147, which had transformed it drastically and truly, into a "Marcos Constitution." As a delegate to and Vice-President of the Convention, I cannot therefore claim credit as a co-author of that paper after Mr. Marcos had rewritten it.
25 See CONST., supra, art. VI, see. 5, pars. (1) and (2) providing for a party-list system and abolishing, to all intents and purposes, the two-party structure.
26 Supra, sec. 32, providing for a system of initiative and referendum; art. XVII, sec. 2, allowing Constitutional amendments by initiative; art. II, sec. 26, guaranteeing "equal access" to political opportunities. See also art. XIII secs. 15 and 16, supra.
27 See Tanada v. Tuvera, supra, 456, Cruz, J.
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