EN BANC
G.R. No. L-32432 September 11, 1970
MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for respondents.
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty, however, in accepting the conclusion that there is no basis for the challenge hurled against the validity of this provision: "No candidate for delegate to the Convention shall represent or allow himself to be represented as being a candidate of any political party or any other organization, and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in the nomination of any such candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: ..."1 It is with regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not be abridged.2 The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society."3 Such is indeed the case, for five years earlier the American Supreme Court had already declared: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could elaborate further on the scope of the right of association as including "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means, Association in that context is a form of expression of opinion; and while it is not extremely included in the First Amendment its existence is necessary in making the express guarantees fully meaningful."5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the instrument" and the guarantee and the bright consummate flower of all liberty"6 and, for Justice Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom."7
2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to annul the challenged provision. There is much to be said for the point emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that there is nothing unlawful in a candidate for delegate to the Convention representing or allowing himself to be represented as such of any political party or any other organization as well as of such political party, political group, political committee, civic, religious, professional or other organization or organized group intervening in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I find the conclusion inescapabe therefore, that what the constitutional provisions in question allow, more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent on its face.
There is, to my mind, another avenue of approach that leads to the same conclusion. The final proviso in the same section of the Act forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organizations or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention."8 It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v. Commission on Elections.9 As repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For "[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 society." Justice Black would go further. He would require that the substantive evil be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of a clear and present danger of debasing the electoral process. With due respect, I find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present danger of a grave substantive evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice then of the national interest involved. The Convention might not be able to live up to the high hopes entertained for an improvement of the fundamental law. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant role in the political life of the nation. The thought is entertained that otherwise, we will not have a Convention truly responsive to the needs of the hour and of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in national elections for senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the prevailing dominant political party would continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can, if so minded, make their wishes prevail.ℒαwρhi৷ There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such a ban is called for, still no such danger is presented by allowing civil, professional or any other organization or organized group of whatever nature to field its own candidates or give aid or support, directly or indirectly material or otherwise, to anyone running for the Convention. From such a source, no such misgivings or apprehension need arise. Nor it the fear that organizations could hastily be assembled or put up to camouflage their true colors as satellites of the political parties be valid. The electorate can see through such schemes and can emphatically register its reaction. There is, moreover, the further safeguard that whatever work the Convention may propose is ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present. What causes me grave concern is that to guard against such undesirable eventuality, which may not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief Justice Hughes: "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." 11 It is to carry this essential process one step farther to recognize and to implement the right of every political party or group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups making their influence felt in the task of constitution framing, the result of which has momentuous implications for the nation? What is decisive of this aspect of the matter is not the character of the association or organized group as such but the essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in Congress to attain a desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in extending sympathy and understanding to such legislative determination. This is merely to stress that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or other organizations or organized group is concerned, but not necessarily so in the case of political party, political group or political committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their individual capacity, could continue to assert their influence. It could very well happen, then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the probability of its success may be assumed. It is an entirely different matter to cut down the exercise of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie expectations. Considering the well-settled principle that even though the governmental process be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to preclude political parties or other groups or associations from lending aid and support to the candidates of men in whom they can repose their trust is consistent with the constitutional rights of freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be offensive to constitutional standards, magnified by the probability that the result would be the failure and not success of the statutory scheme, cautions against the affixing of the imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the validity of this challenged provision. What survived the test of constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding election and for any other public office earlier than 90 days immediately preceding such election. 13 A corollary to the above limitation, the provision making it unlawful for any person, whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the above periods successfully hurdled, the constitutional test, although the restrictions as to the making of speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office or the publishing or distributing of campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan political activity would limit or restrict the formation, of organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short of preventing the political parties from the choice of their candidates and thereafter working for them in effect were considered by this Court as not violative of the constitutional freedoms of speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales v. Commission on Elections which already was indicative of the cautious and hesitant judicial approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of association lends support to the decision reached by the majority insofar as this challenged provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that the Chief Justice is in agreement with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
Footnotes
1 Sec. 8(a), Republic Act No. 6132 (1970).
2 The Constitution provides: "The right to form associations or societies for purposes not contrary to law shall not be abridged." Art. III, Sec. 1, par. 6.
3 Douglas, The Right of Association, 63 Col. Law Rev. 1363 (1963).
4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958) per Harlan, J. Cf. Bates v. Little Rock, 361 US 516 (1960); Shelton v. Tucker, 364 US 479. (1960); Louisiana ex rel. Gremillon v. NAACP, 366 US. 293 (1961); Communist Party v. Subversive Activities Control Board, 367 US 1 (1961); Scales v. United States, 367 US 203 (1961); NAACP v. Button, 371 US 415 (1963); Gibson v. Florida Legislative Investigation, Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel. State Bar 377 US 1 (1964); NAACP v. Alabama, 377 US 288 (1964).
5 Griswold v. Connecticut, 381 US 479, 483 (1965). In Elfbrandt v. Russel, 384 US 11, 18 (1966) he spoke of this right as a "cherished freedom." Cf. Keyishan v. Board of Regents, 385 US 589 (1967).
6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting Wendell Philipps.
7 Palko v. Connecticut, 302 US 319, 323 (1937).
8 Section 8(a), Republic Act No. 6132 (1970).
9 L-27833, April 18, 1969, 27 SCRA 835.
10 Ibid., pp. 859-860.
11 De Jonge v. Oregon, 299 US 353, 365 (1937).
12 L-27833, April 18, 1969, 27 SCRA -835.
13 Sec. 50(a) of Republic Act 4880 (1967).
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