Chapter 13

Freedom of Expression

SUGGESTED READING

1. Terminiello v. City of Chicago 337 US 1

2. Abraham v. US 250 US 610
3. New York Times v. United States v. United States 403 US 713
4. Schenk v. United States 249 US 97
5. Navarro v. Villegas 31 SCRA 731
6. Reyes v. Bagatsing 125 SCRA 553
7. US v. Bustos 37 Phil 731
8. Rosenbloom v. Metromedia 403 US 29
9. Miller v. California 37 L. ed 2d 419
10. PBM Employees Association v. PBM 51 SCRA 189
11. NAACPA v. Alabama 357 US 449
12. In re Edillon 84 SCRA 554
13. Tanada v. Tuvera 146 SCRA 44
14. Non v. Dames 185 SCRA 523
15. National Press Club v. Commission on Elections. 207 SCRA 1

U.S. Supreme Court

Terminiello v. Chicago, 337 U.S. 1 (1949)

Terminiello v. Chicago

No. 272

Argued February 1, 1949

Decided May 16, 1949

337 U.S. 1

CERTIORARI TO THE SUPREME COURT OF ILLINOIS

Syllabus

In a meeting which attracted considerable public attention, petitioner addressed a large audience in an
auditorium outside of which was an angry and turbulent crowd protesting against the meeting. He
condemned the conduct of the crowd outside and vigorously criticized various political and racial groups.
Notwithstanding efforts of a cordon of police to maintain order, there were several disturbances in the
crowd. Petitioner was charged with violation of an ordinance forbidding any "breach of the peace," and
the trial court instructed the jury that any misbehavior which "stirs the public to anger, invites dispute,
brings about a condition of unrest, or creates a disturbance" violates the ordinance. Petitioner did not
except to that instruction, but he did maintain at all times that, as applied to his conduct, the ordinance
violated his right of free speech under the Federal Constitution. He was convicted on a general verdict,
and his conviction was affirmed by an intermediate appellate court and by the Supreme Court of the
State.
Held:

1. As construed by the trial court and applied to petitioner, the ordinance violates the right of free speech
guaranteed by the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp.
337 U. S. 4-5.

2. It is immaterial that petitioner took no exception to the instruction, and that, throughout the appellate
proceedings, the state courts assumed that the only conduct punishable and punished under the
ordinance was conduct constituting "fighting words," since the verdict was a general one, and it cannot be
said that petitioner's conviction was not based upon the instruction quoted above. Stromberg v. California,

400 Ill. 23, 79 N.E.2d 39, reversed.

Petitioner was convicted in a state court of violating a city ordinance forbidding any breach of the peace.
The Illinois Appellate Court affirmed. 332 Ill.App. 17, 74 N.E.2d 45. The Supreme Court of Illinois affirmed.
400 Ill. 23, 79 N.E.2d 39. This Court granted certiorari. 335 U.S. 890. Reversed, p. 337 U. S. 6.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago, *
and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices
of the Christian Veterans of America. The meeting commanded considerable public attention. The
auditorium was filled to capacity, with over eight hundred persons present. Others were turned away.
Outside of the auditorium, a crowd of about one thousand persons gathered to protest against the
meeting. A cordon of policemen was assigned to the meeting to maintain order, but they were not able to
prevent several disturbances. The crowd outside was angry and turbulent.

Petitioner, in his speech, condemned the conduct of the crowd outside and vigorously, if not viciously,
criticized various political and racial groups whose activities he denounced as inimical to the nation's
welfare.

The trial court charged that "breach of the peace" consists of any "misbehavior which violates the public
peace and decorum", and that the "misbehavior may constitute a breach of the peace if it stirs the public
to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the
inhabitants in the enjoyment of peace and quiet by arousing alarm."

Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance, as
applied to his conduct, violated his right of free speech under the Federal Constitution. The Judgment of
conviction was affirmed by the Illinois Appellate Court (332 Ill.App. 17, 74 N.E.2d 45) and by the Illinois
Supreme Court. 396 Ill. 41, 71 N.E.2d 2; 400 Ill. 23, 79 N.E.2d 39. The case is here on a petition for
certiorari, which we granted because of the importance of the question presented.

The argument here has been focused on the issue of whether the content of petitioner's speech was
composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees.
See Chaplinsky v. New Hampshire, 315 U. S. 568; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310.
We do not reach that question, for there is a preliminary question that is dispositive of the case.

As we have noted, the statutory words "breach of the peace" were defined in instructions to the jury to
include speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or
creates a disturbance. . . ." That construction of the ordinance is a ruling on a question of state law that is
as binding on us as though the precise words had been written into the ordinance. See Hebert v.
Louisiana, 272 U. S. 312, 272 U. S. 317; Winters v. New York, 333 U. S. 507, 333 U. S. 514.
The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice
Hughes wrote in De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365, it is only through free debate and
free exchange of ideas that government remains responsive to the will of the people and peaceful change
is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of
the chief distinctions that sets us apart from totalitarian regimes.

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed
best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at
prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an
idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 315
U. S. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252, 314 U. S. 262; Craig v.
Harney, 331 U. S. 367, 331 U. S. 373. There is no room under our Constitution for a more restrictive view.
For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant
political or community groups.

The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of
petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of
unrest. A conviction resting on any of those grounds may not stand.

The fact that petitioner took no exception to the instruction is immaterial. No exception to the instructions
was taken in Stromberg v. California, 283 U. S. 359. But a judgment of conviction based on a general
verdict under a state statute was set aside in that case because one part of the statute was
unconstitutional. The statute had been challenged as unconstitutional, and the instruction was framed in
its language. The Court held that the attack on the statute as a whole was equally an attack on each of its
individual parts. Since the verdict was a general one, and did not specify the ground upon which it rested,
it could not be sustained. For one part of the statute was unconstitutional, and it could not be determined
that the defendant was not convicted under that part.

The principle of that case controls this one. As we have said, the gloss which Illinois placed on the
ordinance gives it a meaning and application which are conclusive on us. We need not consider whether
as construed it is defective in its entirety. As construed and applied, it at least contains parts that are
unconstitutional. The verdict was a general one, and we do not know on this record but what it may rest
on the invalid clauses.

The statute, as construed in the charge to the jury, was passed on by the Illinois courts and sustained by
them over the objection that, as so read, it violated the Fourteenth Amendment. The fact that the parties
did not dispute its construction makes the adjudication no less ripe for our review, as the Stromberg
decision indicates. We can only take the statute as the state courts read it. From our point of view, it is
immaterial whether the state law question as to its meaning was controverted or accepted. The pinch of
the statute is in its application. It is that question which the petitioner has brought here. To say, therefore,
that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to
misconceive the issue.

But it is said that, throughout the appellate proceedings, the Illinois courts assumed that the only conduct
punishable and punished under the ordinance was conduct constituting "fighting words." That
emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not convicted
under a statute so narrowly construed. For all anyone knows, he was convicted under the parts of the
ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about
a condition of unrest. We cannot avoid that issue by saying that all Illinois did was to measure petitioner's
conduct, not the ordinance, against the Constitution. Petitioner raised both points -- that his speech was
protected by the Constitution; that the inclusion of his speech within the ordinance was a violation of the
Constitution. We would, therefore, strain at technicalities to conclude that the constitutionality of the
ordinance, as construed and applied to petitioner, was not before the Illinois courts. The record makes
clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied
to him.

Reversed.

"All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance,
breach of the peace, or diversion tending to a breach of the peace, within the limits of the city . . . shall be
deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than
one dollar nor more than two hundred dollars for each offense."

Municipal Code of Chicago, 1939, 193-1.

Abrams v. United States, 250 U.S. 616 (1919), was a 7-2 decision of the United States Supreme Court
involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge
curtailment of production of the materials necessary to the war against Germany with intent to hinder the
progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the
Sedition Act of 1918.

The defendants were convicted on the basis of two leaflets they printed and threw from windows of a
building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops
to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the
Russian Revolution and advocated the cessation of the production of weapons to be used against Soviet
Russia.

The defendants were charged and convicted for inciting resistance to the war effort and for urging
curtailment of production of essential war material. They were sentenced to 20 years in prison. The
Supreme Court ruled 72 that the Act did not violate the freedom of speech protected by the First
Amendment. Justice John Hessin Clarke used a relatively restrictive speech test "bad tendency" to
uphold the conviction. Justices Oliver Wendell Holmes and Louis Brandeis dissented and said that the
more speech protective standard "clear and present danger" ought to be applied to overturn the
conviction. The case was ultimately overturned during the Vietnam War era in Brandenburg v. Ohio
(1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action"
standard a test even more speech protective than "clear and present danger."

Majority opinion

Writing for the majority, Justice John Hessin Clarke asserted that the leaflets were an appeal to violence
against the United States government as opposed to peaceful change. In quoting heavily from the leaflets
themselves, Clark wrote: "This is not an attempt to bring about a change of administration by candid
discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the
manifest purpose of such a publication was to create an attempt to defeat the war plans of the
government of the United States, by bringing upon the country the paralysis of a general strike, thereby
arresting the production of all munitions and other things essential to the conduct of the war."

Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the
immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien
anarchists, may have been resentment caused by our government sending troops into Russia as a
strategic operation against the Germans on the eastern battle front, yet the plain purpose of their
propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they
hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military
plans of the government in Europe."

Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in
violation of the Sedition Act of 1918. Although the distribution of the leaflets did not incite immediate
resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were
not protected by the First Amendment: "...the language of these circulars was obviously intended to
provoke and to encourage resistance to the United States in the war... and, the defendants, in terms,
plainly urged and advocated a resort to a general strike of workers in ammunition factories for the
purpose of curtailing the production of ordnance and munitions necessary and essential to the
prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence
was before the jury tending to prove that the defendants were guilty as charged...."

In his dissent, Holmes wrote that although the defendant's pamphlet called for a cease in weapons
production, it had not violated the Act of May 16, 1918 because they did not have the requisite intent "to
cripple or hinder the United States in the prosecution of the war." Holmes distinguishes Abrams's intent as
being only to minimize Russian casualties, with any harm to the United States war efforts being incidental
and unintended.[1]

Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and its
relationship with free speech, based on his conversations with Zechariah Chafee and other academics.
He argued that the First Amendment left no room for the government suppression of dangerous ideas,
except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left
the common law rule of seditious libel intact. Holmes felt that the founders' expansion of free speech was
"an experiment, as all life is an experiment" and he opined that a twenty year sentence against the
defendants was an unconstitutional punishment for their beliefs. Holmes wrote:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your
premises or your power and want a certain result with all your heart you naturally express your wishes in
law and sweep away all opposition...But when men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas.

[2]

New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision by the United
States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and
Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government
censorship or punishment.

President Richard Nixon had claimed executive authority to force the Times to suspend publication of
classified information in its possession. The question before the court was whether the constitutional
freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the
executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the
First Amendment did protect the right of the New York Times to print the materials.

Section 793 of the Espionage Act

Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell as cause for the United
States to sue to bar further publication of stories based upon the Pentagon Papers. The statute was
spread over three pages of the United States Code Annotated and the only part that appeared to apply to
the Times was 793(e), which made it criminal for:

Whoever having unauthorized possession of, access to, or control over any document, writing, code
book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully
retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
[1]

Based on this language, Alexander Bickel and Floyd Abrams felt there were three preliminary arguments
to raise. First, the wording of the statute was very broad. Was each article about foreign policy one
"relating to the national defense"? What was the significance of "reason to believe" that the Pentagon
Papers "could be used to the injury of the United States or the advantage of any foreign nation"? If the
motivation was to educate the public, was that a defense that served to help, not hinder, the country?
Would the public be "a person not entitled to receive" the information? Of equal import was what the
statute did not say: No references to "publication" (as Attorney General Mitchell's cease-and-desist order
referenced), no reference to classified information, and no support for Mitchell's reliance on the top secret
classification to justify restraint on publication. Additionally, there was no statutory language providing
authority for prior restraint on publication at all.

Second, was the relevance of Mitchell's reliance on a criminal statute in a civil proceeding seeking prior
restraint. There was Supreme Court precedent that lent support to the idea that bans on the publication of
information by the press to be unconstitutional. In 1907 Oliver Wendell Holmes wrote the "main purpose"
of the First Amendment" was "to prevent all such previous restraints upon publications as had been
practiced by other governments." In 1931 the Court wrote that only the narrowest circumstancessuch
as publication of the dates of departure of ships during wartimewere permissible. In 1969 John Marshall
Harlan II wrote the Supreme lama "rejected all manner of prior restraint on publication." This second line
of reasoning made it seem the statute should only be dealt with in passing, making the case a First
Amendment one and the relief the government wanteda bar on publicationunavailable.

The third possible approach was a very broad view of the First Amendment, one not focused on the
impact of a government victory on the life of a democratic society if prior restraint were granted; but that
the publication of just these sorts of materialsgovernmental misjudgments and misconducts of high
importis exactly why the First Amendment exists.

Restraining order sought

The government sought a restraining order that barred the Times from publishing any further articles
based upon the Pentagon Papers. In addition to The New York Times Company, the Justice Department
named the following defendants: Arthur Ochs Sulzberger, president and publisher; Harding Bancroft and
Ivan Veit, executive vice presidents; Francis Cox, James Goodale, Sydney Gruson, Walter Mattson, John
McCabe, John Mortimer and James Reston, vice presidents; John B. Oakes, editorial page editor; A. M.
Rosenthal, managing editor; Daniel Schwarz, Sunday editor; Clifton Daniel and Tom Wicker, associate
editors; Gerald Gold and Allan Siegal, assistant foreign editors; Neil Sheehan, Hedrick Smith, E. W.
Kenworthy and Fox Butterfield, reporters; and Samuel Abt, a foreign desk copy editor.

Federal judge Murray Gurfein heard arguments. Michael Hess, chief of the Civil Division of the United
States Attorneys Office, argued "serious injuries are being inflicted on our foreign relations, to the benefit
of other nations opposed to our foreign relations, to the benefit of other nations opposed to our form of
government."[2] Hess relied on Secretary of State William P. Rogers's statement reported earlier that day
that a number of nations were concerned about the Papers publication and an affidavit from general
counsel of the Navy that alleged irreparable injury if publication did not cease. Hess asked for a
temporary restraining order.

Bickel argued that the separation of powers barred the court from issuing the restraining order, since
there was no statute authorizing such relief. He further argued that there was no exception to the general
unavailability of prior restraint that applied in this case. Gurfein called all counsel to his chambers and
asked Bickel and Abrams to have the Times cease publication of the Papers until he could review them.
Bickel responded that Gurfein would be the first judge in American history to enter a prior restraint
enjoining publication of news if he granted the government's request. The Times refused to cease
publication. Gurfein granted the request and set a hearing for June 18.

The New York Times agreed to abide by the restraining order.

By 1971, the US had been overtly at war with North Vietnam for six years. At this point, 59,000 American
soldiers had died and the administration was facing widespread dissent from large portions of the
American public. In 1967 Secretary of Defense Robert S. McNamara commissioned a massive top-
secret history of the United States role in Indochina. The resulting 2.5 million word classified work was
obtained by the New York Times within three years, which immediately began publishing articles outlining
the findings.

The first article appeared in the Times' Sunday edition, June 13, 1971. By the following Tuesday, the
Times received an order to cease further publication from a District Court judge, at the request of the
administration. The government claimed it would cause "irreparable injury to the defense interests of the
United States" and wanted to "enjoin the New York Times and the Washington Post from publishing the
contents of a classified study entitled History of U.S. Decision-Making Process on the Vietnam Policy.
Seen from a constitutional perspective, the Government was expressing its intent to enforce prior restraint
upon a newspaper with regards to publishing the findings of a study that the Government itself had made.

On the 19th, the District Court rejected the administrations request for an injunction. After several battles
within numerous courts with no clear victory for any party, both the Times and the government appealed
to the Supreme Court.

Along with the issue of how the Times obtained the documents (which was being investigated by a federal
grand jury elsewhere) the real issue for the Court was whether there was a sufficient justification for prior
restraint, which would be a suspension of the newspapers First Amendment rights to freedom of the
press. The First Amendment states that no federal law can be made abridging the freedom of the press,
but a few landmark cases in the 20th century had established precedents creating exceptions to that rule.

The most recent incarnation of the exception was the grave and probable danger rule, established in
Dennis v. United States, 341 U.S. 494 (1951). During this case, the wording was changed to the grave
and irreparable danger standard. The idea behind the numerous versions of the rule is that if a certain
message will likely cause a grave and irreparable danger to the American public when expressed, then
the messages prior restraint could be considered an acceptable infringement of civil liberties. The
Supreme Court was therefore charged with determining if the Government had sufficiently met the
burden of showing justification for the imposition of such a restraint .

The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and the Justice
Department on June 25 and 26 1971. On June 30, with six Justices concurring and three dissenting, the
Supreme Court upheld the right of the two newspapers to publish the material.

In its decision, the court first established the legal question with the use of precedents. It first stated that
Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity. The purpose of this statement was to make the presence of the inherent conflict
between the Governments efforts and the First Amendment clear. The decision then stated that the
Government thus carries a heavy burden of showing justification for the imposition of such a restraint.
This reinforced the idea that it was the Nixon Administration's responsibility to show sufficient evidence
that the newspapers actions would cause a grave and irreparable danger. [3]

Decision

In a 6-3 decision, the Supreme Court agreed with the two lower courts which had originally decided that
the government had not met its "heavy burden" of showing a justification for a prior restraint. The Court
issued a very brief per curiam opinion, stating only that the Court concurred with the decisions of the two
lower courts to reject the Governments request for an injunction. [4]

The Justices' opinions included different degrees of support for the clear superiority of the First
Amendment and no Justice fully supported the governments case. Because of these factors, no clear
and exclusive verdict appears to have come out of this case. Nevertheless, the significance of the case
and the wording of the Justices opinions have added important statements to the history of precedents
for exceptions to the First Amendment, which have been cited in numerous Supreme Court cases since.

Concurring opinions

Justice Hugo Black wrote an opinion that elaborated on his view of the absolute superiority of the First
Amendment. He was against any interference with freedom of expression and largely found the content
and source of the documents to be immaterial.[5] Justice William O. Douglas largely concurred with Black,
arguing that the need for a free press as a check on government prevents any governmental restraint on
the press.[6]

Justice William J. Brennan, Jr. wrote separately to explain that the publication of the documents did not
qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota
(1931).[7]

Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to
ensure national security through the protection of its information. However, in areas of national defense
and international affairs, the President of United States possesses great constitutional independence that
is virtually unchecked by the Legislative and Judicial branch. "In absence of governmental checks and
balances", per Justice Stewart, "the only effective restraint upon executive policy and power in [these two
areas] may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here
protect the values of democratic government."[8]

Justice Thurgood Marshall argued that the term "national security" was too broad to legitimize prior
restraint, and also argued that it is not the Courts job to create laws where the Congress had not spoken.
[9]

Dissenting opinions

Chief Justice Warren E. Burger, dissenting, argued that "the imperative of a free and unfettered press
comes into collision with another imperative, the effective functioning of a complex modern government",
that there should be a detailed study on the effects of these actions. He argued that in the haste of the
proceedings, and given the size of the documents, the Court was unable to gather enough information to
make a decision. He also argued that the Times should have discussed the possible societal
repercussions with the Government prior to publication of the material. The Chief Justice did not argue
that the Government had met the aforementioned standard, but rather that the decision should not have
been made so hastily.[10]
Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the
proceedings, and the lack of attention towards national security and the rights of the Executive. [11]

U.S. Supreme Court

Schenck v. United States, 249 U.S. 47 (1919)
Schenck v. United States
Nos. 437, 438
Argued January 9, 10, 1919
Decided March 3, 1919
249 U.S. 47

ERROR TO THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a
conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15,
1917. P 249 U. S. 49.

Page 249 U. S. 48

Incriminating document seized under a search warrant directed against a Socialist headquarters, held
admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution
against the general secretary of a Socialist party, who had charge of the office. P. 249 U. S. 50.

Words which, ordinarily and in many places, would be within the freedom of speech protected by the First
Amendment may become subject to prohibition when of such a nature and used in such circumstances a
to create a clear and present danger that they will bring about the substantive evils which Congress has a
right to prevent. The character of every act depends upon the circumstances in which it is done. P. 249 U.
S. 51.

A conspiracy to circulate among men called and accepted for military service under the Selective Service
Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that
result, and followed by the sending of such circulars, is within the power of Congress to punish, and is
punishable under the Espionage Act, 4, although unsuccessful. P. 249 U. S. 52.

The word "recruiting," as used in the Espionage Act, 3, means the gaining of fresh supplies of men for
the military forces, as well by draft a otherwise. P. 249 U. S. 52

The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the
prosecution of offenses under the former. P. 249 U. S. 53.

Affirmed.

The case is stated in the opinion.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June
15, 1917, c. 30, 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the
military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the
United States, when the United States was at war with the German Empire, to-wit, that the defendants
willfully conspired to have printed and circulated to men who had been called and accepted for military
service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such
insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in
the distribution of the document set forth. The second count alleges a conspiracy to commit an offence
against the United States, to-wit, to use the mails for the transmission of matter declared to be
nonmailable by Title XII, 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an
averment of the same overt acts. The third count charges an unlawful use of the mails for the
transmission of the same matter and otherwise as above. The defendants were found guilty on all the
counts. They set up the First Amendment to the Constitution forbidding Congress to make any law
abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued
some other points also of which we must dispose.

It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was
concerned in sending the documents. According to the testimony, Schenck said he was general secretary
of the Socialist party, and had charge of the Socialist headquarters from which the documents were sent.
He identified a book found there as the minutes of the Executive Committee of the party. The book
showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of
them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck
personally attended to the printing. On August 20, the general secretary's report said "Obtained new
leaflets from printer and started work addressing envelopes" &c., and there was a resolve that Comrade
Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or
sixteen thousand printed. There were files of the circular in question in the inner office which he said were
printed on the other side of the one sided circular, and were there for distribution. Other copies were
proved to have been sent through the mails to drafted men. Without going into confirmatory details that
were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in
sending the circulars about. As to the defendant Baer, there was evidence that she was a member of the
Executive Board, and that the minutes of its transactions were hers. The argument as to the sufficiency of
the evidence that the defendants conspired to send the documents only impairs the seriousness of the
real defence.

It is objected that the documentary evidence was not admissible because obtained upon a search
warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U. S. 585; Weeks
v. United States, 232 U. S. 383, 232 U. S. 395, 232 U. S. 396. The search warrant did not issue against
the defendant, but against the Socialist headquarters at 1326 Arch Street, and it would seem that the
documents technically were not even in the defendants' possession. See Johnson v. United States, 228
U. S. 457. Notwithstanding some protest in argument, the notion that evidence even directly proceeding
from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly
unsound. Holt v. United States, 218 U. S. 245, 218 U. S. 252, 218 U. S. 253.

The document in question, upon its first printed side, recited the first section of the Thirteenth
Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is
little better than a

Page 249 U. S. 51

convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a
monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to
intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of
the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons
for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your
opposition to the draft," and went on
"If you do not assert and support your rights, you are helping to deny or disparage rights which it is the
solemn duty of all citizens and residents of the United States to retain."

It described the arguments on the other side as coming from cunning politicians and a mercenary
capitalist press, and even silent consent to the conscription law as helping to support an infamous
conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of
other lands, and added that words could not express the condemnation such cold-blooded ruthlessness
deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the
people of this country." Of course, the document would not have been sent unless it had been intended to
have some effect, and we do not see what effect it could be expected to have upon persons subject to the
draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury
might find against them on this point.

But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to
the Constitution. Two of the strongest expressions are said to be quoted respectively from well known
public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to
previous restraints, although to prevent them may have been the

Page 249 U. S. 52

main purpose, as intimated in Patterson v. Colorado, 205 U. S. 454, 205 U. S. 462. We admit that, in
many places and in ordinary times, the defendants, in saying all that was said in the circular, would have
been within their constitutional rights. But the character of every act depends upon the circumstances in
which it is done. Aikens v. Wisconsin, 195 U. S. 194, 195 U. S. 205, 195 U. S. 206. The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
It does not even protect a man from an injunction against uttering words that may have all the effect of
force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439. The question in every case is
whether the words used are used in such circumstances and 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. When a nation is at war, many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and
that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an
actual obstruction of the recruiting service were proved, liability for words that produced that effect might
be enforced. The statute of 1917, in 4, punishes conspiracies to obstruct, as well as actual obstruction.
If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same,
we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United
States, 245 U. S. 474, 245 U. S. 477. Indeed, that case might be said to dispose of the present contention
if the precedent covers all media concludendi. But, as the right to free speech was not referred to
specially, we have thought fit to add a few words.

It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The

Page 249 U. S. 53

words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to
making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting
volunteers, the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies
for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment
in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40
Stat. 553, of course, does not affect the present indictment, and would not even if the former act had been
repealed. Rev.Stats., 13.

Judgments affirmed.
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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.

REYES VS. BAGATSING [125 SCRA 553; L-65366; 9 NOV 1983]

Sunday, February 08, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Petitioner sought a permit from the City of Manila to hold a peaceful march and rally on October
26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta to the gates of the United States
Embassy. Once there, and in an open space of public property, a short program would be held. The
march would be attended by the local and foreign participants of such conference. That would be followed
by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases
Coalition. There was likewise an assurance in the petition that in the exercise of the constitutional rights to
free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and
rally. However the request was denied. Reference was made to persistent intelligence reports affirming
the plans of subversive/criminal elements to infiltrate or disrupt any assembly or congregations where a
large number of people is expected to attend. Respondent suggested that a permit may be issued if it is
to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants
themselves and the general public may be ensured. An oral argument was heard and the mandatory
injunction was granted on the ground that there was no showing of the existence of a clear and present
danger of a substantive evil that could justify the denial of a permit. However Justice Aquino dissented
that the rally is violative of Ordinance No. 7295 of the City of Manila prohibiting the holding of rallies within
a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Hence
the Court resolves.

Issue: Whether or Not the freedom of expression and the right to peaceably assemble violated.

Held: Yes. The invocation of the right to freedom of peaceable assembly carries with it the implication that
the right to free speech has likewise been disregarded. It is settled law that as to public places, especially
so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant
for the permit, whether an individual or a group. There can be no legal objection, absent the existence of
a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace
rally would start. Time immemorial Luneta has been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.

Such use of the public places has from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens.

With regard to the ordinance, there was no showing that there was violation and even if it could be shown
that such a condition is satisfied it does not follow that respondent could legally act the way he did. The
validity of his denial of the permit sought could still be challenged.

A summary of the application for permit for rally: The applicants for a permit to hold an assembly should
inform the licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession is required.
Such application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public place.
It is an indispensable condition to such refusal or modification that the clear and present danger test be
the standard for the decision reached. Notice is given to applicants for the denial.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

DECISION

March 8, 1918

G.R. No. L-12592

THE UNITED STATES, plaintiff-appellee,
vs.
FELIPE BUSTOS, ET AL., defendants-appellants.

Kincaid and Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

Malcolm, J.:

This appeal presents the specific question of whether or not the defendants and appellants are guilty of a
libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of Pampanga. The
appeal also submits the larger question of the attitude which the judiciary should take interpreting and
enforcing the Libel Law in connection with the basic prerogatives of freedom of speech and press, and of
assembly and petition. For a better understanding, the facts in the present appeal are the first narrated in
the order of their occurrence, then certain suggestive aspects relative to the rights of freedom of speech
and press and of assembly and petition are interpolated, then the facts are tested by these principles,
and, finally, judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and
prepared and signed a petition to the Executive Secretary through the law office of Crossfield and
OBrien, and five individuals signed affidavits, charging Roman Punsalan, justice of the peace of
Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal. Crossfield
and OBrien submitted this petition and these affidavits with a complaint to the Executive Secretary. The
petition transmitted by these attorneys was signed by thirty-four citizens apparently of considerable
standing, including councilors and property owners (now the defendants), and contained the statements
set out in the information as libelous. Briefly stated the specific charges against the justice of the peace
were.

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of
the peace, who first told her that he would draw up complaint for P5; afterwards he said he would take P3
which she paid; also kept her in the house for four days as a servant and took from her two chickens and
twelve gandus;

2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of
the peace, went to see the justice of the peace to ascertain the result of the trial, and was told by the
justice of the peace that if he wished to win he must give him P50. Not having this amount, Sunga gave
the justice nothing, and a few days later was informed that he had lost the case. Returning again to the
office of the justice of the peace in order to appeal, the justice told him that he could still win if he would
pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the
trial the justice called him over to his house, where he secretly gave him (Quiambao) P30; and the
complaint was thereupon shelved.

The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District
requesting investigation, proper action, and report. The justice of the peace was notified and denied the
charges. The judge of first instance found the first count not proved and counts 2 and 3 established. In
view of this result, the judge, the Honorable Percy M. Moir, was of the opinion that it must be, and it is
hereby, recommended to the Governor-General that the respondent be removed from his position as
justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that the
proceedings had in this case be transmitted to the Executive Secretary.

Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion
and reopened the hearing; documents were introduced, including a letter sent by the municipal president
and six councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of
prosecution, and that one Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for
personal reasons; and the judge of first instance ordered a suppression of the charges against Punsalan
and acquitted him the same. Attorneys for complainants thereupon appealed to the Governor-General,
but whether the papers were forwarded to the Governor-General as requested the record does not
disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916,
by virtue of the following information:

That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the
said accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr.
Roman Punsalan Serrano who was at said time and place justice of the peace of Macabebe and
Masantol of this province, wrote, signed, and published a writing which was false, scandalous, malicious,
defamatory, and libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing
appear among other things the following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the
conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to
be a public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and
consequently unworthy of the office.

That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so
serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less
serious, but which the undersigned refrain from citing herein for the sake of brevity and in order not to
bother too much the attention of your Honor and due to lack of sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this town to continue in his office,
the protection of the rights and interests of its inhabitants will be illusory and utopic; rights and interest
solemnly guaranteed by the Philippine Bill of Rights, and justice in this town will not be administered in
accordance with law.

That on account of the wrongful discharge of his office and of his bad conducts as such justice of the
peace, previous to this time, some respectable citizens of this town of Macabebe were compelled to
present an administrative case against the said Roman Punsalan Serrano before the judge of first
instance of Pampanga, in which case there were made against him various charges which were true and
certain and of different characters.

That after the said administrative case was over, the said justice of the peace, far from charging his bad
and despicable conduct, which has roused the indignation of this town of Macabebe, subsequently
performed the acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock
at the people and to show his mistaken valor and heroism.

All of this has been written and published by the accused with deliberate purpose of attacking the virtue,
honor, and reputation of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to
public hatred contempt, and ridicule. All contrary to law.

It should be noted that the information omits paragraphs of the petition mentioning the investigation
before the judge of first instance, the affidavits upon which based and concluding words, To the
Executive Secretary, through the office of Crossfield and OBrien.

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S.
Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and
one thirty-second part of the costs, or to suffer subsidiary imprisonment in case of insolvency. New
attorneys for the defense, coming into the case, after the handing down of the decision, file on December
16, 1916, a motion for a new trial, the principal purpose of which was to retire the objection interposed by
the then counsel for the defendants to the admission of Exhibit A consisting of the entire administrative
proceedings. The trial court denied the motion. All the defendants, except Melecio S. Sabado and
Fortunato Macalino appealed making the following assignments of error:

1. The court erred in overruling the motion of the convicted defendants for a new trial.

2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by
their counsel to the admission in evidence of the expediente administrativo out of which the accusation in
this case arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the
accused of the affidavits upon which the petition forming the basis of the libelous charge was based.

4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged.

5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that
the alleged libelous statements were true and free from malice.

6. The court erred in not acquitting the defendants.

7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is
especially true of all the defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.

We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly
before this court. As a matter of fact counsel for defendants in the lower court made an improvident
objection to the admission of the administrative proceedings on the ground that the signatures were not
identified and that the same was immaterial, which objection was partially sustained by the trial court.
Notwithstanding this curious situation by reason of which the attorney for the defense attempted to
destroy through his objection the very foundation for the justification of his clients, we shall continue to
consider all the proceedings as before us. Not indicating specifically the reason for this action, let the
following be stated: The administrative proceedings were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered.
The prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could
be imagined than to pick out certain words which standing by themselves and unexplained are libelous
and then by shutting off all knowledge of facts which would justify these words, to convict the accused.
The records in question are attached to the rollo, and either on the ground that the attorneys for the
defense retired the objection to the introduction of the administrative proceedings by the prosecution, or
that a new trial should have been had because under section 42 of the Code of Criminal Procedure a
case may be reopened on account of errors at law committed at the trial, or because of the right of this
court to call in such records as are sufficiently incorporated into the complaint and are essential to a
determination of the case, or finally, because of our conceded right to take judicial notice of official action
in administrative cases and of judicial proceedings supplemental to the basis action, we examine the
record as before us, containing not alone the trial for libel, but the proceedings previous to that trial giving
rise to it. To this action, the Government can not explain for it was the prosecution which tried to
incorporate Exhibit A into the record.

With these facts pleading justification, before testing them by certain principles which make up the law of
libel and slander, we feel warranted in seizing the opportunity to intrude an introductory and general
discussion of freedom of speech and press and assembly and petition in the Philippine Islands. We
conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to place these
basic rights in their proper light.
Turning to the pages of history, we state nothing new when we set down that freedom of speech as
cherished in democratic countries was unknown in the Philippine Islands before 1900. A prime cause for
revolt was consequently ready made. Jose Rizal in Filipinas Despues de Cien Aos (The Philippines a
Century Hence, pages 62 et seq.) describing the reforms sine quibus non, which the Filipinos insist
upon, said:

The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the
Philippines free and by instituting Filipinos delegates.

The Filipino patriots in Spain, through the columns of La Solidaridad and by other means invariably in
exposing the wants of the Filipino people demanded liberty of the press, of cults, and associations. (See
Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary Congress, in its
Bill of Rights, zealously guarded freedom of speech and press and assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the
people of these Islands and won at so dear a cost, should now be protected and carried forward as one
would protect and preserve the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and
the State constitutions guarantee to the right of freedom of speech and press and the right of assembly
and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of Philippine
Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900, laying down the inviolable
rule That no law shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for a redress of grievances.

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August
29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are
not unfamiliar to students of Constitutional Law, for they are the counterpart of the first amendment to the
Constitution of the United States, which the American people demanded before giving their approval to
the Constitution.

We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the
guaranties mentioned are part and parcel of the Organic Law of the Constitution of the Philippine
Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries
with all the applicable jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S.
[1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes
would inadequately answer. But included are the following:

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism does not
authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be
born for the common good. Rising superior to any official or set of officials, to the Chief of Executive, to
the Legislature, to the Judiciary to any or all the agencies of Government public opinion should be the
constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4
Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The
administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is,
therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge
the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of
public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in
the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as
a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to
society or to the State to assist in the investigation of any alleged misconduct. It is further the duty of all
who know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to
bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr.
Justice Gayner, who contributed so largely to the law of libel. The people are not obliged to speak of the
conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.
(Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet peaceably
for consultation in respect to public affairs. Petition means that any person or group of persons can apply,
without fear of penalty, to the appropriate branch or office of the government for a redress of grievances.
The persons assembling and petitioning must, of course, assume responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have demanded
protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.

The doctrine of privileged communications rests upon public policy, which looks to the free and unfettered
administration of justice, though, as an incidental result, it may in some instances afford an immunity to
the evil-disposed and malignant slanderer. (Abbott vs. National Bank of Commerce, Tacoma [1899], 175
U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified
privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule
is thus stated by Lord Campbell, C. J.

A communication made bona fide upon any subject-matter in which the party communicating has an
interest, or in reference to which has a duty, is privileged, if made to a person having a corresponding
interest or duty, although it contained criminatory matter which without this privilege would be slanderous
and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85
E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without
malice in regard to the character or conduct of a public official when addressed to an officer or a board
having some interest or duty in the matter. Even when the statements are found to be false, if there is
probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege
may still cover the mistake of the individual. But the statements must be made under an honest sense of
duty; a self-seeking motive is destructive. Personal injury is not necessary. All persons have an interest in
the pure and efficient administration of justice and of public affairs. The duty under which a party is
privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting
in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that
the communication is made in intemperate terms. A further element of the law of privilege concerns the
person to whom the complaint should be made. The rule is that if a party applies to the wrong person
through some natural and honest mistake as to the respective functions of various officials such
unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption.
The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the
existence of malice as the true motive of his conduct. Falsehood and the absence of probable cause will
amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.)

A privileged communication should not be subjected to microscopic examination to discover grounds of

malice or falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3 How., 266;
Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations
of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et
seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom of
speech and press and of assembly and petition, having emphasized the point that our Libel Law as a
statute must be construed with reference to the guaranties of our Organic Law, and having sketched the
doctrine of privilege, we are in a position to test the facts of this case with these principles.

It is true that the particular words set out in the information, if said of a private person, might well be
considered libelous per se. The charges might also under certain conceivable conditions convict one of a
libel of a government official. As a general rule words imputing to a judge or a justice of the peace
dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But as
suggested in the beginning we do not have present a simple case of direct and vicious accusations
published in the press, but of charges predicated on affidavits made to the proper official and thus
qualifiedly privileged. Express malice has not been proved by the prosecution. Further, although the
charges are probably not true as to the justice of the peace, they were believed to be true by the
petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or
misfeasance in office existed is apparent. The ends and the motives of these citizens- to secure the
removal from office of a person thought to be venal were justifiable. In no way did they abuse the
privilege. These respectable citizens did not eagerly seize on a frivolous matter but on instances which
not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of
first instance to convince him of their seriousness. No undue publicity was given to the petition. The
manner of commenting on the conduct of the justice of the peace was proper. And finally the charges and
the petition were submitted through reputable attorneys to the proper functionary, the Executive
Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the
Governor-General, that they may be removed by the Governor-General upon the recommendation of a
Judge of First Instance, or on the Governor-Generals own motion, and that at the time this action took
place the Executive Bureau was the office through which the Governor-General acted in such matter.
(See Administrative Code of 1917, secs. 203 and 229, in connection with the cases of U. S. vs. Galesa
[1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was
subject to removal by the sovereign, a communication to the Secretary of State was privileged.)

The present facts are further essentially different from those established in other cases in which private
individuals have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against
the man and not the officer, have been the causes of the verdict of guilty. (See U. S. vs. Senado [1909],
14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United States vs.
Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says, is identical with the
Felipe Bustos case, with the exception that there has been more publicity in the present instance and that
the person to whom the charge was made had less jurisdiction than had the Secretary of Justice in the
Julio Bustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged
communication. Moreover, in the Julio Bustos case we find wild statements, with no basis in fact, made
against reputable members of the judiciary, to persons who could not furnish protection. Malicious and
untrue communications are not privileged. A later case and one more directly in point to which we invite
especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs.
Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege,
growing out of constitutional guaranties in our bill of rights. Instead of punishing citizens for an honest
endeavor to improve the public service, we should rather commend them for their good citizenship. The
defendants and appellants are acquitted with the costs de officio. So ordered.

Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I concur. I think it proper to observe, however, that in my opinion the Attorney-General is entirely correct
when he says that this case is substantially identical with the former Bustos case (The United States vs.
Bustos, 13 Phil. Rep., 690). I believe that a careful reading of our decisions in these cases is sufficient to
demonstrate that fact. The truth is that the doctrine of the prevailing opinion in the former Bustos case has
long since been abandoned by this court; and in my opinion it would make for the more efficient
administration of the Libel Law in these Islands to say so, in so many words. (Cf. U. S. vs. Sedano,
[1909], 14 Phil. Rep., 338, 339; U. S. vs. Contreras [1912], 23 Phil. Rep., 513; U. S. vs. Montalvo [1915],
29 Phil. Rep., 595; and U. S. vs. Galeza [1915], 31 Phil. Rep., 365

SUPREME COURT OF THE UNITED STATES

403 U.S. 29

Rosenbloom v. Metromedia

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 66 Argued: December 7, 1970 --- Decided: June 7, 1971

Respondent's radio station, which broadcast news reports every half hour, broadcast news stories of
petitioner's arrest for possession of obscene literature and the police seizure of "obscene books," and
stories concerning petitioner's lawsuit against certain officials alleging that the magazines he distributed
were not obscene and seeking injunctive relief from police interference with his business. These latter
stories did not mention petitioner's name, but used the terms "smut literature racket" and "girlie-book
peddlers." Following petitioner's acquittal of criminal obscenity charges, he filed this diversity action in
District Court seeking damages under Pennsylvania's libel law. The jury found for petitioner and awarded
$25,000 in general damages; and $725,000 in punitive damages, which was reduced by the court on
remittitur to $250,000. The Court of Appeals reversed, holding that the New York Times Co. v. Sullivan,
376 U.S. 254, standard applied, and "the fact that plaintiff was not a public figure cannot be accorded
decisive significance."

Held: The judgment is affirmed. Pp. 40-62.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, concluded
that the New York Times standard of knowing or reckless falsity applies in a state civil libel action brought
by a private individual for a defamatory falsehood uttered in a radio news broadcast about the individual's
involvement in an event of public or general interest. Pp. 40-57.

MR. JUSTICE BLACK concluded that the First Amendment protects the news media from libel
judgments even when statements are made with knowledge that they are false. P. 57.

MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined in New York Times,
supra, the First Amendment gives the news media a privilege to report and comment upon the official
actions of public servants in full detail, without sparing from public view the reputation or privacy of an
individual involved in or affected by any official action. Pp. 59-62. [p30]

BRENNAN, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and
BLACKMUN, J., joined. BLACK, J., post, p. 57, and WHITE, J., post, p. 57, filed opinions concurring in
the judgment. HARLAN, J., filed a dissenting opinion, post, p. 62. MARSHALL, J., filed a dissenting
opinion in which STEWART, J., joined, post, p. 78. DOUGLAS, J., took no part in the consideration or
decision of this case.

413 U.S. 15

Miller v. California (No. 70-73)

Argued: January 18-19, 1972

Decided: June 21, 1973

___

Syllabus
Opinion, Burger
Dissent, Douglas
Dissent, Brennan

Syllabus

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute
that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S.
413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the
contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of
the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476,
reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the
prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific
value. Pp. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying
contemporary community standards" would find that the work, taken as a whole, appeals to the prurient
interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited,
First Amendment values are adequately protected by ultimate independent appellate review of
constitutional claims when necessary. Pp. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the
standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34.

Vacated and remanded. [p16]

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a
dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 47.

TOP

Opinion

BURGER, C.J., Opinion of the Court

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination
of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable
obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring and
dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically
called "adult" material. After a jury trial, he was convicted of violating California Penal Code 311.2(a), a
misdemeanor, by knowingly distributing obscene matter, [n1] [p17] and the Appellate Department, Superior
Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's
conviction was specifically [p18] based on his conduct in causing five unsolicited advertising brochures to
be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The
envelope was opened by the manager of the restaurant and his mother. They had not requested the
brochures; they complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and
"An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures
contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly
depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals
often prominently displayed.

This case involves the application of a State's criminal obscenity statute to a situation in which sexually
explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no
way indicated any desire to receive such materials. This Court has recognized that the States have a
legitimate interest in prohibiting dissemination or exhibition of obscene material [n2] [p19] when the mode
of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or
of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S.
629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, 386 U.S. 767,
769 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195 (1964). See Rabe v. Washington, 405 U.S. 313, 317
(1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U.S. 351, 360-362 (1971) (opinion of
MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); Breard v. Alexandria, 341 U.S.
622, 644 645 (1951); Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949); Prince v. Massachusetts, 321 U.S.
158, 169-170 (1944). Cf. Butler v. Michigan, 32 U.S. 380, 382-383 (1957); Public Utilities Comm'n v.
Pollak, 343 U.S. 451, 464-465 (1952) It is in this context that we are called [p20] on to define the
standards which must be used to identify obscene material that a State may regulate without infringing on
the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the
Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to
focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In
Roth v. United States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute
punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the
Court's rejection of the claim that obscene materials were protected by the First Amendment. Five
Justices joined in the opinion stating:

All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas,
even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment]
guaranties, unless excludable because they encroach upon the limited area of more important interests.
But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming
social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-572:

. . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem. These include the lewd and
obscene. . . . It has been well observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social [p21] value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality. . . .

[Emphasis by Court in Roth opinion.]

We hold that obscenity is not within the area of constitutionally protected speech or press.

354 U.S. at 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from
the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity.
The plurality held that, under the Roth definition,

as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the
dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is
patently offensive because it affronts contemporary community standards relating to the description or
representation of sexual matters; and (c) the material is utterly without redeeming social value.

Id. at 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test
and emphasized by MR. JUSTICE WHITE's dissent, id. at 460-462, was further underscored when the
Memoirs plurality went on to state:

The Supreme Judicial Court erred in holding that a book need not be "unqualifiedly worthless before it
can be deemed obscene." A book cannot be proscribed unless it is found to be utterly without redeeming
social value.
Id. at 419 (emphasis in original).

While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required
[p22] that to prove obscenity it must be affirmatively established that the material is "utterly without
redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced
a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was
"utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal
standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without
redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 459 (Harlan,
J., dissenting). See also id. at 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581
(CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been
able to agree on a standard to determine what constitutes obscene, pornographic material subject to
regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 770-771. We have
seen "a variety of views among the members of the Court unmatched in any other course of constitutional
adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 704-705 (Harlan, J., concurring and dissenting)
(footnote omitted). [n3] This is not remarkable, for in the area [p23] of freedom of speech and press the
courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or
scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code 311 approximately
incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as
unworkable by its author, [n4] and no Member of the Court today supports the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First
Amendment. Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S. at 354; Roth v.
United States, supra, at 485. [n5] "The First and Fourteenth Amendments have never been treated as
absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 642, and cases cited. See Times Film
Corp. v. Chicago, 365 U.S. 43, 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 502. We
acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State
statutes designed to regulate obscene materials must be [p24] carefully limited. See Interstate Circuit,
Inc. v. Dallas, supra, at 682-685. As a result, we now confine the permissible scope of such regulation to
works which depict or describe sexual conduct. That conduct must be specifically defined by the
applicable state law, as written or authoritatively construed. [n6] A state offense must also be limited to
works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a
patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or
scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary
community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v.
Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do
not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v.
Massachusetts, [p25] 383 U.S. at 419; that concept has never commanded the adherence of more than
three Justices at one time. [n7] See supra at 21. If a state law that regulates obscene material is thus
limited, as written or construed, the First Amendment values applicable to the States through the
Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an
independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232;
Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204
(Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (1964); Roth v. United
States, supra, at 497-498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose regulatory schemes for the States. That must await
their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state
statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual
or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public
accommodation any more than live sex and nudity can [p26] be exhibited or sold without limit in such
public places. [n8] At a minimum, prurient, patently offensive depiction or description of sexual conduct
must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See
Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v. Alabama, 310 U.S.
88, 101-102 (1940). For example, medical books for the education of physicians and related personnel
necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably
sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the
safeguards that judges, rules of evidence, presumption of innocence, and other protective features
provide, as we do with rape, murder, and a host of other offenses against society and its individual
members. [n9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United
States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United [p27] States, 383 U.S. 463 (1966), Mishkin v.
New York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former
position and now maintains that no formulation of this Court, the Congress, or the States can adequately
distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult
Theatre I v. Slaton, post, p. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN
indicates that suppression of unprotected obscene material is permissible to avoid exposure to
unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division
between protected and nonprotected materials may be drawn with greater precision for these purposes
than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the
Constitution he finds the authority to distinguish between a willing "adult" one month past the state law
age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct
specifically defined by the regulating state law, as written or construed. We are satisfied that these
specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial
activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf. Ginsberg v. New York,
390 U.S. at 643. [n10] If [p28] the inability to define regulated materials with ultimate, god-like precision
altogether removes the power of the States or the Congress to regulate, then "hard core" pornography
may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed,
MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-
seven Photographs, 402 U.S. 363, 379-380 (1971) (Black, J., joined by DOUGLAS, J., dissenting);
Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v.
Ohio, supra, at 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 508-514 (DOUGLAS,
J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view.
Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has
been placed upon this Court," he quite rightly remarks that the examination of contested materials "is
hardly a source of edification to the members of this Court." Paris Adult [p29] Theatre I v. Slaton, post, at
92, 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of
tension between state and federal courts. . . ."
The problem is . . . that one cannot say with certainty that material is obscene until at least five members
of this Court, applying inevitably obscure standards, have pronounced it so.

Id. at 93, 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper
standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first
time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate
"hard core" pornography from expression protected by the First Amendment. Now we may abandon the
casual practice of Redrup v. New York, 386 U.S. 767 (1967), and attempt to provide positive guidance to
federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a
convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment --
because it will lighten our burdens. [n11] "Such an abnegation of judicial supervision in this field would be
inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 187-188
(opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily
depriving the States of a power reserved to them under the Constitution, a power which they have
enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See
Roth v. United States, supra, at 482-485.

Our duty admits of no "substitute for facing up [p30] to the tough individual problems of constitutional
judgment involved in every obscenity case." [Roth v. United States, supra, at 498]; see Manual
Enterprises, Inc. v. Day, 370 U.S. 478, 488 (opinion of Harlan, J.) [footnote omitted].

Jacobellis v. Ohio, supra, at 188 (opinion of BRENNAN, J.).

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do
not vary from community to community, but this does not mean that there are, or should or can be, fixed,
uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive."
These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to
reasonably expect that such standards could be articulated for all 50 States in a single formulation, even
assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average
person, applying contemporary community standards" would consider certain materials "prurient," it would
be unrealistic to require that the answer be based on some abstract formulation. The adversary system,
with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of
fact to draw on the standards of their community, guided always by limiting instructions on the law. To
require a State to structure obscenity proceedings around evidence of a national "community standard"
would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to
incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection
enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state
prosecution under the controlling case [p31] law. The jury, however, was explicitly instructed that, in
determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest,"
and, in determining whether the material "goes substantially beyond customary limits of candor and
affronts contemporary community standards of decency," it was to apply "contemporary community
standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards"
in making the factual determination of obscenity were those of the State of California, not some
hypothetical standard of the entire United States of America. Defense counsel at trial never objected to
the testimony of the State's expert on community standards [n12] or to the instructions of the trial judge on
"state-wide" standards. On appeal to the Appellate Department, Superior Court of California, County of
Orange, appellant for the first time contended that application of state, rather than national, standards
violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial
court's charge that the jury consider state community standards, were constitutional errors. Nothing in the
First Amendment requires that a jury must consider hypothetical and unascertainable "national standards"
when attempting to determine whether certain materials are obscene as a matter [p32] of fact. Mr. Chief
Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200:

It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to "community
standards," it meant community standards -- not a national standard, as is sometimes argued. I believe
that there is no provable "national standard." . . . At all events, this Court has not been able to enunciate
one, and it would be unreasonable to expect local courts to divine one.

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of
Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.
[n13]
[p33] See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v.
Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v.
Kentucky, 397 U.S. 319 (1970) (BURGER, C.J., dissenting); id. at 319-320 (Harlan, J., dissenting); United
States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on
Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at
458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United
States, supra, at 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their
tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As
the Court made clear in Mishkin v. New York, 383 U.S. at 508-509, the primary concern with requiring a
jury to apply the standard of "the average person, applying contemporary community standards" is to be
certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an
average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive
one. See Roth v. United States, supra, at 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L.R.
3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to
"contemporary [p34] standards of the State of California" serves this protective purpose and is
constitutionally adequate. [n14]

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust
exchange of ideas and political debate with commercial exploitation of obscene material demeans the
grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a
"misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 645.
The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or
scientific value, regardless of whether the government or a majority of the people approve of the ideas
these works represent.

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the
bringing about of [p35] political and social changes desired by the people,

Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 230-232;
Thornhill v. Alabama, 310 U.S. at 101-102. But the public portrayal of hard-core sexual conduct for its own
sake, and for the ensuing commercial gain, is a different matter. [n15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of public
distribution and display of material relating to sex, see Roth v. United States, supra, at 482-485, in any
way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary,
it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an
"extraordinarily vigorous period" not just in economics and politics, but in belles lettres and in "the outlying
fields of social and political philosophies." [n16] We do not see the harsh hand [p36] of censorship of ideas
-- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of
commercial exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever
be forestalled." Paris Adult Theatre I v. Slaton, post, at 110 (BRENNAN, J., dissenting). These doleful
anticipations assume that courts cannot distinguish commerce in ideas, protected by the First
Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core
pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds
constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid
enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v.
Dallas, 390 U.S. at 690. [n17] One can concede that the "sexual revolution" of recent years may have had
useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation.
But it does not follow that no regulation of patently offensive "hard core" materials is needed or
permissible; civilized people do not allow unregulated access to heroin because it is a derivative of
medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment;
(b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated
[p37] above, without a showing that the material is "utterly without redeeming social value"; and (c) hold
that obscenity is to be determined by applying "contemporary community standards," see Kois v.
Wisconsin, supra, at 230, and Roth v. United States, supra, at 489, not "national standards." The
judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and
the case remanded to that court for further proceedings not inconsistent with the First Amendment
standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 130 n. 7.

Vacated and remanded.

1.

At the time of the commission of the alleged offense, which was prior to June 25, 1969, 311.2(a) and
311 of the California Penal Code read in relevant part:

311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or
possessing within state

(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this
state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to
distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene
matter is guilty of a misdemeanor. . . .

311. Definitions

As used in this chapter:

(a) "Obscene" means that to the average person, applying contemporary standards, the predominant
appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity,
sex, or excretion, which goes substantially beyond customary limits of candor in description or
representation of such matters and is matter which is utterly without redeeming social importance.
(b) "Matter" means any book, magazine, newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any
recording, transcription or mechanical, chemical or electrical reproduction or any other articles,
equipment, machines or materials.

(c) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.

(d) "Distribute" means to transfer possession of, whether with or without consideration.

(e) "Knowingly" means having knowledge that the matter is obscene.

Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:

(e) "Knowingly" means being aware of the character of the matter.

Cal. Amended Stats.1969, c. 249, 1, p. 598. Despite appellant's contentions to the contrary, the record
indicates that the new 311(e) was not applied ex post facto to his case, but only the old 311(e) as
construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256
Cal.App.2d 941, 948-950, 63 Cal.Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967);
People v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct., San Diego,
1966). Cf. Bouie v. City of Columbia, 378 U.S. 347 (1964). Nor did 311.2, supra, as applied, create any
"direct, immediate burden on the performance of the postal functions," or infringe on congressional
commerce powers under Art. I, 8, cl. 3. Roth v. United States, 354 U.S. 476, 494 (1957), quoting
Railway Mail Assn. v. Corsi, 326 U.S. 88, 96 (1945). See also Mishkin v. New York, 383 U.S. 502, 506
(1966); Smith v. California, 361 U.S. 147, 150-152 (1959).

2.

This Court has defined "obscene material" as "material which deals with sex in a manner appealing to
prurient interest," Roth v. United States, supra, at 487, but the Roth definition does not reflect the precise
meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus ob,
to, plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary
(Unabridged 1969) as

1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is
appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle.

The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste
or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."

The material we are discussing in this case is more accurately defined as "pornography" or "pornographic
material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now
means

1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or

lewdness: a portrayal of erotic behavior designed to cause sexual excitement.

Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-
group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in our
language. We note, therefore, that the words "obscene material," as used in this case, have a specific
judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth,
supra, at 487. See also ALI Model Penal Code 251.4(1) "Obscene Defined." (Official Draft 1962.)
3.

In the absence of a majority view, this Court was compelled to embark on the practice of summarily
reversing convictions for the dissemination of materials that, at least five members of the Court, applying
their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U.S. 767
(1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances,
however, no justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398
U.S. at 434-435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure
has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each
piece of material brought before us.

4.

See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 73.

5.

As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U.S. 184, 200 (1964):

For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe
that we should try to live with it -- at least until a more satisfactory definition is evolved. No government --
be it federal, state, or local -- should be forced to choose between repressing all material, including that
within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile.
There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth
case to provide such a rule.

6.

See, e.g., Oregon Laws 1971, c. 743, Art. 29, 255-262, and Hawaii Penal Code, Tit. 37, 1210-1216,
1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at
depiction of defined physical conduct, as opposed to expression. Other state formulations could be
equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be
understood as approving of them in all other respects nor as establishing their limits as the extent of state
power.

We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact
new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be
adequate. See United States v. 12 200-ft. Reel of Film, post, at 130 n. 7.

7.

"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene
publication. . . ." Kois v. Wisconsin, 408 U.S. 229, 231 (1972). See Memoirs v. Massachusetts, 383 U.S.
413, 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous
concept of "social importance." See id. at 462 (WHITE, J., dissenting).

8.

Although we are not presented here with the problem of regulating lewd public conduct itself, the States
have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of
the same behavior. In United States v. O'Brien, 391 U.S. 367, 377 (1968), a case not dealing with
obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech
elements to be
sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest.

See California v. LaRue, 409 U.S. 109, 117-118 (1972).

9.

The mere fact juries may reach different conclusions as to the same material does not mean that
constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 492 n. 30,

it is common experience that different juries may reach different results under any criminal statute. That is
one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U.S. 486,
499-500.

10.

As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 491-492:

Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote
omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the
requirements of due process. ". . . [T]he Constitution does not require impossible standards;" all that is
required is that the language "conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices. . . ." United States v. Petrillo, 332 U.S. 1, 7-8. These
words, applied according to the proper standard for judging obscenity, already discussed, give adequate
warning of the conduct proscribed and mark

. . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be
marginal cases in which it is difficult to determine the side of the line on which a particular fact situation
falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .

Id. at 7. See also United States v. Harriss, 347 U.S. 612, 624, n. 15; Boyce Motor Lines, Inc. v. United
States, 342 U.S. 337, 340; United States v. Ragen, 314 U.S. 513, 523-524; United States v. Wurzbach,
280 U.S. 396; Hygrade Provision Co. v. Sherman, 266 U.S. 497; Fox v. Washington, 236 U.S. 273; Nash
v. United States, 229 U.S. 373.

11.

We must note, in addition, that any assumption concerning the relative burdens of the past and the
probable burden under the standards now adopted is pure speculation.

12.

The record simply does not support appellant's contention, belatedly raised on appeal, that the State's
expert was unqualified to give evidence on California "community standards." The expert, a police officer
with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey
and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert
testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U.S. 348, 356 (1969).

13.

In Jacobellis v. Ohio, 378 U.S. 184 (1964), two Justices argued that application of "local" community
standards would run the risk of preventing dissemination of materials in some places because sellers
would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id. at
193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however,
necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will
nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the
potential for suppression seems at least as great in the application of a single nationwide standard as in
allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized.
See Roth v. United States, 354 U.S. at 506.

Appellant also argues that adherence to a "national standard" is necessary "in order to avoid
unconscionable burdens on the free flow of interstate commerce." As noted supra at 18 n. 1, the
application of domestic state police powers in this case did not intrude on any congressional powers
under Art. I, 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate.
Appellant's argument would appear without substance in any event. Obscene material may be validly
regulated by a State in the exercise of its traditional local power to protect the general welfare of its
population despite some possible incidental effect on the flow of such materials across state lines. See,
e.g., Head v. New Mexico Board, 374 U.S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U.S.
440 (1960); Breard v. Alexandria, 341 U.S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U.S. 525
(1949); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511
(1935); Sligh v. Kirkwood, 237 U.S. 52 (1915).

14.

Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a Los
Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but
apparently alleging exposures at a different time in a different setting. Appellant argues that, once material
has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever
alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly
raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim,
in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue,
and appellee contends that the question was waived under California law because it was improperly
pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal
might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to
present affirmative evidence required by state law, evidence which was apparently presented in this case.
Appellant's contention, therefore, is best left to the California courts for further consideration on remand.
The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U.S. 502, 512-
514 (1966).

15.

In the apt words of Mr. Chief Justice Warren, appellant in this case was

plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with
prurient effect. I believe that the State and Federal Governments can constitutionally punish such
conduct. That is all that these cases present to us, and that is all we need to decide.

Roth v. United States, supra, at 496 (concurring opinion).

16.

See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th
century, Parrington observed

A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . .
From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic
criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to
take the place of those which had gone down in the fierce battles of the Civil War.

Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic
197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White
ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter);
and H. Wish, Society and Thought in Modern America 337-386 (1952).

17.

[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the
dissemination to juveniles of, and their access to, material objectionable as to them, but which a State
clearly could not regulate as to adults. Ginsberg v. New York, . . . [ 390 U.S. 629 (1968)].

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 690 (1968) (footnote omitted).

TOP

Dissent

DOUGLAS, J., Dissenting Opinion

MR. JUSTICE DOUGLAS, dissenting.

Today we leave open the way for California [n1] to send a man to prison for distributing brochures that
advertise books and a movie under freshly written standards defining obscenity which until today is
decision were never the part of any law.

The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354
U.S. 476"] 354 U.S. 476, it ruled that "[o]bscene material is material which deals with sex in a manner
appealing to prurient interest." Id. at 487. Obscenity, it was said, was rejected by the First Amendment
because it is "utterly without redeeming [p38] social importance." Id. at 484. The presence of a "prurient
interest" was to be determined by "contemporary community standards." Id. at 489. That test, it has been
said, could not be determined by one standard here and another standard there, 354 U.S. 476, it ruled
that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id. at
487. Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming
[p38] social importance." Id. at 484. The presence of a "prurient interest" was to be determined by
"contemporary community standards." Id. at 489. That test, it has been said, could not be determined by
one standard here and another standard there, Jacobellis v. Ohio, 378 U.S. 184, 194, but "on the basis of
a national standard." Id. at 195. My Brother STEWART, in Jacobellis, commented that the difficulty of the
Court in giving content to obscenity was that it was "faced with the task of trying to define what may be
indefinable." Id. at 197.

In Memoirs v. Massachusetts, 383 U.S. 413, 418, the Roth test was elaborated to read as follows:

[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken
as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation of sexual matters; and (c)
the material is utterly without redeeming social value.
In Ginzburg v. United States, 383 U.S. 463, a publisher was sent to prison, not for the kind of books and
periodicals he sold, but for the manner in which the publications were advertised. The "leer of the
sensualist" was said to permeate the advertisements. Id. at 468. The Court said,

Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact
may be decisive in the determination of obscenity.

Id. at 470. As Mr. Justice Black said in dissent,

. . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing
printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be
criminal.

Id. at 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was
five to four. [p39]

A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641, where the Court held that "it
was not irrational for the legislature to find that exposure to material condemned by the statute is harmful
to minors."

But even those members of this Court who had created the new and changing standards of "obscenity"
could not agree on their application. And so we adopted a per curiam treatment of so-called obscene
publications that seemed to pass constitutional muster under the several constitutional tests which had
been formulated. See Redrup v. New York, 386 U.S. 767. Some condemn it if its "dominant tendency
might be to deprave or corrupt' a reader." [n2] Others look not to the content of the book, but to whether it
is advertised "to appeal to the erotic interests of customers.'" [n3] Some condemn only "hard-core
pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could
never succeed in [defining it] intelligibly," but "I know it when I see it." [n4]

Today we would add a new three-pronged test:

(a) whether "the average person, applying contemporary community standards," would find that the work,
taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Those are the standards we ourselves have written into the Constitution. [n5] Yet how under these vague
tests can [p40] we sustain convictions for the sale of an article prior to the time when some court has
declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make
new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we
do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of
Rights. And the First Amendment makes no such exception from "the press" which it undertakes to
protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no
recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene"
publications differently from other types of papers, magazines, and books. So there are no constitutional
guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with
tastes and standards of literature. What shocks me may [p41] be sustenance for my neighbor. What
causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not
shared by others. We deal here with a regime of censorship which, if adopted, should be done by
constitutional amendment after full debate by the people.
Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the
courts. If a constitutional amendment authorized censorship, the censor would probably be an
administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the
censor and sold their literature. Under that regime, a publisher would know when he was on dangerous
ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal
law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by
the courts after the publication. That was done in Ginzburg, and has all the evils of an ex post facto law.

My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution
should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than
those we have fashioned. As Mr. Justice Harlan has said:

The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's
decisions since Roth which have held particular material obscene or not obscene would find himself in
utter bewilderment.

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 707.

In Bouie v. City of Columbia, 378 U.S. 347, we upset a conviction for remaining on property after being
asked to leave, while the only unlawful act charged by the statute was entering. We held that the
defendants had received no "fair warning, at the time of their conduct" [p42] while on the property "that
the act for which they now stand convicted was rendered criminal" by the state statute. Id. at 355. The
same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial
discrimination; the present case involves rights earnestly urged as being protected by the First
Amendment. In any case -- certainly when constitutional rights are concerned -- we should not allow men
to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct.

II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene
and review of that finding has been completed, and thereafter a person publishes, shows, or displays that
particular book or film, then a vague law has been made specific. There would remain the underlying
question whether the First Amendment allows an implied exception in the case of obscenity. I do not think
it does, [n6] and my views [p43] on the issue have been stated over and over again. [n7] But at least a
criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test.
[n8]

No such protective procedure has been designed by California in this case. Obscenity -- which even we
cannot define with precision -- is a hodge-podge. To send [p44] men to jail for violating standards they
cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and
due process.

III

While the right to know is the corollary of the right to speak or publish, no one can be forced by
government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 467, where I protested against making streetcar passengers a
"captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being
compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they
see. But they are not compelled by the State to frequent those places; and it is only state or governmental
action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a
ban.
The idea that the First Amendment permits government to ban publications that are "offensive" to some
people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper
or any journal or magazine in some benighted place. The First Amendment was designed "to invite
dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even
to stir "people to anger." Terminiello v. Chicago, 337 U.S. 1, 4. The idea that the First Amendment permits
punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding.
No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we
do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment
was not fashioned as a vehicle for [p45] dispensing tranquilizers to the people. Its prime function was to
keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to
subdue the individual and to exalt the power of government. The use of the standard "offensive" gives
authority to government that cuts the very vitals out of the First Amendment. [n9] As is intimated by the
Court's opinion, the materials before us may be garbage. But so is much of what is said in political
campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely
because of it -- speakers and publishers have not been threatened or subdued because their thoughts
and ideas may be "offensive" to some.

The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U.S.
611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble
on a street and conduct themselves "in a manner annoying to persons [p46] passing by." We struck it
down, saying:

If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as
not to annoy any police officer or other person who should happen to pass by. In our opinion, this
ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an
unascertainable standard, and unconstitutionally broad because it authorizes the punishment of
constitutionally protected conduct.

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague not in the sense
that it requires a person to conform his conduct to an imprecise but comprehensive normative standard,
but rather in the sense that no standard of conduct is specified at all.

Id. at 614.

How we can deny Ohio the convenience of punishing people who "annoy" others and allow California
power to punish people who publish materials "offensive" to some people is difficult to square with
constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of
achieving the end. There are societies where religion and mathematics are the only free segments. It
would be a dark day for America if that were our destiny. But the people can make it such if they choose
to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not
think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be
defined, let the people debate and decide by a constitutional amendment what they want to ban as
obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will
decide that the path towards a mature, integrated society requires [p47] that all ideas competing for
acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will
have some guidelines. Now we have none except our own predilections.

1.

California defines "obscene matter" as

matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary
standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is
matter which taken as a whole goes substantially beyond customary limits of candor in description or
representation of such matters; and is matter which taken as a whole is utterly without redeeming social
importance.

Calif. Penal Code 311(a).

2.

Roth v. United States, 354 U.S. 476, 502 (opinion of Harlan, J.).

3.

Ginzburg v. United States, 383 U.S. 463, 467.

4.

Jacobellis v. Ohio, 378 U.S. 184, 197 (STEWART, J., concurring).

5.

At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined
that the standards we have written interfere with constitutionally protected materials:

Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws
prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely
unsatisfactory in their practical application. The Constitution permits material to be deemed "obscene" for
adults only if, as a whole, it appeals to the "prurient" interest of the average person, is "patently offensive"
in light of "community standards," and lacks "redeeming social value." These vague and highly subjective
aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials,
juries or courts. As a result, law is inconsistently and sometimes erroneously applied, and the distinctions
made by courts between prohibited and permissible materials often appear indefensible. Errors in the
application of the law and uncertainty about its scope also cause interference with the communication of
constitutionally protected materials.

Report of the Commission on Obscenity and Pornography 53 (1970).

6.

It is said that "obscene" publications can be banned on authority of restraints on communications incident
to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v.
United States, 297 U.S. 553, 597, or communications respecting the sale of spurious or fraudulent
securities. Hall v. Geier-Jones Co., 242 U.S. 539, 549; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S.
559, 567; Merrick v. Halsey & Co., 242 U.S. 568, 584. The First Amendment answer is that, whenever
speech and conduct are brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech
can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336
U.S. 490, stated that labor unions could be restrained from picketing a firm in support of a secondary
boycott which a State had validly outlawed. Mr. Justice Black said:

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to
speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the
contention now.
Id. at 498.

7.

See United States v. 12 200-ft. Reels of Film, post, p. 123; United States v. Orito, post, p. 139; Kois v.
Wisconsin, 408 U.S. 229; Byrne v. Karalexis, 396 U.S. 976, 977; Ginsberg v. New York, 390 U.S. 629,
650; Jacobs v. New York, 388 U.S. 431, 436; Ginzburg v. United States, 383 U.S. 463, 482; Memoirs v.
Massachusetts, 383 U.S. 413, 424; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 72; Times Film Corp. v.
Chicago, 365 U.S. 43, 78; Smith v. California, 361 U.S. 147, 167; Kingsley Pictures Corp. v. Regents, 360
U.S. 684, 697; Roth v. United States, 354 U.S. 476, 508; Kingsley Books, Inc. v. Brown, 354 U.S. 436,
446; Superior Films, Inc. v. Department of Education, 346 U.S. 587, 588; Gelling v. Texas, 343 U.S. 60.

8.

The Commission on Obscenity and Pornography has advocated such a procedure:

The Commission recommends the enactment, in all jurisdictions which enact or retain provisions
prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing
prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal
prohibitions. . . .

A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the
criminal process, against suspected violations of obscenity prohibition. If such civil procedures are
utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a
civil declaration is obtained. The Commission believes this course of action to be appropriate whenever
there is any existing doubt regarding the legal status of materials; where other alternatives are available,
the criminal process should not ordinarily be invoked against persons who might have reasonably
believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for
the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected
material.

Report of the Commission on Obscenity and Pornography 63 (1970).

9.

Obscenity law has had a capricious history:

The white slave traffic was first exposed by W. T. Stead in a magazine article, "The Maiden Tribute." The
English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing
about an indecent subject. When the law supplies no definite standard of criminality, a judge, in deciding
what is indecent or profane, may consciously disregard the sound test of present injury, and proceeding
upon an entirely different theory may condemn the defendant because his words express ideas which are
thought liable to cause bad future consequences. Thus, musical comedies enjoy almost unbridled license,
while a problem play is often forbidden because opposed to our views of marriage. In the same way, the
law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of
pantheistic ideas on the ground that to attack religion is to loosen the bonds of society and endanger the
state. This is simply a round-about modern method to make heterodoxy in sex matters and even in
religion a crime.

Z. Chafee, Free Speech in the United States 151 (1942).

TOP
Dissent

BRENNAN, J., Dissenting Opinion

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join,
dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no
occasion to consider the extent of state power to regulate the distribution of sexually oriented material to
juveniles or the offensive exposure of such material to unconsenting adults. In the case before us,
appellant was convicted of distributing obscene matter in violation of California Penal Code 311.2, on
the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books
and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements
of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that, under
my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is
unconstitutionally overbroad, and therefore invalid on its face. [*]

[T]he transcendent value to all society of constitutionally protected expression is deemed to justify
allowing 'attacks on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow
specificity.

Gooding v. Wilson, 405 U.S. 518, 521 (1972), quoting [p48] from Dombrowski v. Pfister, 380 U.S. 479,
486 (1965). See also Baggett v. Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S.
611, 616 (1971); id. at 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22
(1960); NAACP v. Button, 371 U.S. 415, 433 (1963). Since my view in Paris Adult Theatre I represents a
substantial departure from the course of our prior decisions, and since the state courts have as yet had no
opportunity to consider whether a "readily apparent construction suggests itself as a vehicle for
rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 491, I would reverse
the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not
inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616.

* Cal. Penal Code 311.2(a) provides that

Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this
state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to
distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene
matter is guilty of a misdemeanor.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,

FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:

The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a
legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc.,
and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the
petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on
March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers
in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M.
to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent Company of
their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties parties

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacaang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at
the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang
(2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the PBMEO (1)
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion Paciente, (5)
Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and stated
that the demonstration or rally cannot be cancelled because it has already been agreed
upon in the meeting. Pagcu explained further that the demonstration has nothing to do
with the Company because the union has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which reason, the Company,
thru Atty. C.S. de Leon warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the
Company, particularly , the officers present who are the organizers of the demonstration,
 who shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked Company
represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor
Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacaang demonstration, the
workers for the first and regular shift of March 4, 1969 should be excused from joining the
demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly Article XXIV: NO
LOCKOUT NO STRIKE'. All those who will not follow this warning of the Company
shall be dismiss; De Leon reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans inasmuch as the Malacaang
demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized for
the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass
demonstration on March 4, 1969, with the respondent Court, a charge against petitioners and other
employees who composed the first shift, charging them with a "violation of Section 4(a)-6 in relation to
Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No
Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit
of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding
complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting
Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4, 1969;
that the said mass demonstration was a valid exercise of their constitutional freedom of speech against
the alleged abuses of some Pasig policemen; and that their mass demonstration was not a declaration of
strike because it was not directed against the respondent firm (Annex "D", pp. 31-34, rec.)

After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in
bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered to have lost their
status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.); and
that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a motion
for reconsideration of said order dated September 15, 1969, on the ground that it is contrary to law and
the evidence, as well as asked for ten (10) days within which to file their arguments pursuant to Sections
15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17 (should
be September 15), 1969; that under Section 15 of the amended Rules of the Court of Industrial Relations,
herein petitioners had five (5) days from September 22, 1969 or until September 27, 1969, within which to
file their motion for reconsideration; and that because their motion for reconsideration was two (2) days
late, it should be accordingly dismissed, invoking Bien vs. Castillo, 1 which held among others, that a
motion for extension of the five-day period for the filing of a motion for reconsideration should be filed
before the said five-day period elapses (Annex "M", pp. 61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration
of herein petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its
Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76,
rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969
and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16
and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration
shall be filed within five (5) days from receipt of its decision or order and that an appeal from the decision,
resolution or order of the C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt
thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order
dated October 9, 1969, on the ground that their failure to file their motion for reconsideration on time was
due to excusable negligence and honest mistake committed by the president of the petitioner Union and
of the office clerk of their counsel, attaching thereto the affidavits of the said president and clerk (Annexes
"K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein
petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 88-89,
rec.).

There is need of briefly restating basic concepts and principles which underlie the issues posed by the
case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality
is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man
as an individual must be "protected to the largest possible extent in his thoughts and in his beliefs as the
citadel of his person." 2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the
scorn and derision of those who have no patience with general principles." 3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights
to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." 4 Laski
proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by which
its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to
exercise." 5

(3) The freedoms of expression and of assembly as well as the right to petition are included among the
immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the
ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect
the minority who want to talk, but also to benefit the majority who refuse to listen. 6 And as Justice
Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not
safe unless the liberties of all are protected. 7

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights
is recognized. 8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in
our society" and the "threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions," they "need breathing space to survive," permitting government regulation only
"with narrow specificity." 9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human
rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities,
of the influential and powerful, and of oligarchs political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position
as they are essential to the preservation and vitality of our civil and political institutions; 10 and such
priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable
or rational relation between the means employed by the law and its object or purpose that the law is
neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or
impairs property rights. 12 On the other hand, a constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent. So it has been stressed in the main opinion of Mr. Justice
Fernando in Gonzales vs. Comelec and reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It
should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black
and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press as
well as of peaceful assembly and of petition for redress of grievances are absolute when directed against
public officials or "when exercised in relation to our right to choose the men and women by whom we shall
be governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. whether
the gravity of the evil, discounted by its improbability, justifies such invasion of free expression as is
necessary to avoid the danger. 17

II

The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage of
work," herein petitioners are guilty bargaining in bad faith and hence violated the collective bargaining
agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be sustained. The
demonstration held petitioners on March 4, 1969 before Malacaang was against alleged abuses of some
Pasig policemen, not against their employer, herein private respondent firm, said demonstrate was purely
and completely an exercise of their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate governmental agency, the Chief
Executive, again the police officers of the municipality of Pasig. They exercise their civil and political rights
for their mutual aid protection from what they believe were police excesses. As matter of fact, it was the
duty of herein private respondent firm to protect herein petitioner Union and its members fro the
harassment of local police officers. It was to the interest herein private respondent firm to rally to the
defense of, and take up the cudgels for, its employees, so that they can report to work free from
harassment, vexation or peril and as consequence perform more efficiently their respective tasks
enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for
its employees with the local police. Was it securing peace for itself at the expenses of its workers? Was it
also intimidated by the local police or did it encourage the local police to terrorize or vex its workers? Its
failure to defend its own employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby subject its lowly employees to
further indignities.

In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition
against alleged persecution of local officialdom, the employees and laborers of herein private respondent
firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution
the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would
suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2
o'clock in the afternoon, is a plea for the preservation merely of their property rights. Such apprehended
loss or damage would not spell the difference between the life and death of the firm or its owners or its
management. The employees' pathetic situation was a stark reality abused, harassment and
persecuted as they believed they were by the peace officers of the municipality. As above intimated, the
condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that
vitally affected their right to individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being broken in morale and
brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars
remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like
rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights freedom of expression, of peaceful assembly and of
petition for redress of grievances over property rights has been sustained. 18 Emphatic reiteration of
this basic tenet as a coveted boon at once the shield and armor of the dignity and worth of the human
personality, the all-consuming ideal of our enlightened civilization becomes Our duty, if freedom and
social justice have any meaning at all for him who toils so that capital can produce economic goods that
can generate happiness for all. To regard the demonstration against police officers, not against the
employer, as evidence of bad faith in collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from employment of the demonstrating employees,
stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition. 19

The collective bargaining agreement which fixes the working shifts of the employees, according to the
respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular
working hours." The strain construction of the Court of Industrial Relations that a stipulated working shifts
deny the workers the right to stage mass demonstration against police abuses during working hours,
constitutes a virtual tyranny over the mind and life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been legally
enjoined by any court, such an injunction would be trenching upon the freedom expression of the workers,
even if it legally appears to be illegal picketing or strike. 20 The respondent Court of Industrial Relations in
the case at bar concedes that the mass demonstration was not a declaration of a strike "as the same not
rooted in any industrial dispute although there is concerted act and the occurrence of a temporary
stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M. to 2
P.M. should report for work in order that loss or damage to the firm will be averted. This stand failed
appreciate the sine qua non of an effective demonstration especially by a labor union, namely the
complete unity of the Union members as well as their total presence at the demonstration site in order to
generate the maximum sympathy for the validity of their cause but also immediately action on the part of
the corresponding government agencies with jurisdiction over the issues they raised against the local
police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are reduced by one-
third, then by that much the circulation of the issues raised by the demonstration is diminished. The more
the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of
one-third of their members will be regarded as a substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police persecution. At any rate, the Union notified the
company two days in advance of their projected demonstration and the company could have made
arrangements to counteract or prevent whatever losses it might sustain by reason of the absence of its
workers for one day, especially in this case when the Union requested it to excuse only the day-shift
employees who will join the demonstration on March 4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the morning of March 4, 1969, the day of the mass
demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion on the part of
the firm in rejecting the request of the Union for excuse from work for the day shifts in order to carry out its
mass demonstration. And to regard as a ground for dismissal the mass demonstration held against the
Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as
unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the
respondent firm to permit all its employees and workers to join the mass demonstration against alleged
police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an
unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for
redress of grievances, the respondent firm committed an unfair labor practice defined in Section 4(a-1) in
relation to Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3 of
Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ... mutual aid
or protection"; while Section 4(a-1) regards as an unfair labor practice for an employer interfere with,
restrain or coerce employees in the exercise their rights guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent
firm on March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of
which was interference with or restraint on the right of the employees to engage in such common action to
better shield themselves against such alleged police indignities. The insistence on the part of the
respondent firm that the workers for the morning and regular shift should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent means of inhibiting speech."
22

Such a concerted action for their mutual help and protection deserves at least equal protection as the
concerted action of employees in giving publicity to a letter complaint charging bank president with
immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban employees. 23
We further ruled in the Republic Savings Bank case, supra, that for the employees to come within the
protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary
that union activity be involved or that collective bargaining be contemplated," as long as the concerted
activity is for the furtherance of their interests. 24

As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated
September 15, 1969, the company, "while expressly acknowledging, that the demonstration is an
inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers present who are the
organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969)
shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the
employees from joining the mass demonstration. However, the issues that the employees raised against
the local police, were more important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen to them was to lose a day's
wage by reason of their absence from work on the day of the demonstration. One day's pay means much
to a laborer, more especially if he has a family to support. Yet, they were willing to forego their one-day
salary hoping that their demonstration would bring about the desired relief from police abuses. But
management was adamant in refusing to recognize the superior legitimacy of their right of free speech,
free assembly and the right to petition for redress.

Because the respondent company ostensibly did not find it necessary to demand from the workers proof
of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that the
evidence of such abuses should properly be submitted to the corresponding authorities having jurisdiction
over their complaint and to whom such complaint may be referred by the President of the Philippines for
proper investigation and action with a view to disciplining the local police officers involved.

On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for failure to comply with purchase orders on that day; or
that penalties were exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by reason of its failure to deliver
the materials ordered; or that its own equipment or materials or products were damaged due to absence
of its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of
wages for its hundreds of workers, cost of fuel, water and electric consumption that day. Such savings
could have amply compensated for unrealized profits or damages it might have sustained by reason of
the absence of its workers for only one day.

IV

Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers
for proceeding with the demonstration and consequently being absent from work, constitutes a denial of
social justice likewise assured by the fundamental law to these lowly employees. Section 5 of Article II of
the Constitution imposes upon the State "the promotion of social justice to insure the well-being and
economic security of all of the people," which guarantee is emphasized by the other directive in Section 6
of Article XIV of the Constitution that "the State shall afford protection to labor ...". Respondent Court of
Industrial Relations as an agency of the State is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the Industrial
Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to eliminate the
causes of industrial unrest by encouraging and protecting the exercise by employees of their right to self-
organization for the purpose of collective bargaining and for the promotion of their moral, social and
economic well-being." It is most unfortunate in the case at bar that respondent Court of Industrial
Relations, the very governmental agency designed therefor, failed to implement this policy and failed to
keep faith with its avowed mission its raison d'etre as ordained and directed by the Constitution.

It has been likewise established that a violation of a constitutional right divests the court of jurisdiction;
and as a consequence its judgment is null and void and confers no rights. Relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus
proceedings even long after the finality of the judgment. Thus, habeas corpus is the remedy to obtain the
release of an individual, who is convicted by final judgment through a forced confession, which violated
his constitutional right against self-incrimination; 25 or who is denied the right to present evidence in his
defense as a deprivation of his liberty without due process of law, 26 even after the accused has already
served sentence for twenty-two years. 27

Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional
immunities of petitioners. Both failed to accord preference to such rights and aggravated the inhumanity
to which the aggrieved workers claimed they had been subjected by the municipal police. Having violated
these basic human rights of the laborers, the Court of Industrial Relations ousted itself of jurisdiction and
the questioned orders it issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as private citizens and
corporations, the exercise and enjoyment of which must not be nullified by mere procedural rule
promulgated by the Court Industrial Relations exercising a purely delegate legislative power, when even a
law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is no
time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery of one
speech, the printing of one article or the staging of one demonstration. It is a continuing immunity to be
invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to
be denounced, inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be
vitiated by rule on procedure prescribing the period for appeal. The battle then would be reduced to a race
for time. And in such a contest between an employer and its laborer, the latter eventually loses because
he cannot employ the best an dedicated counsel who can defend his interest with the required diligence
and zeal, bereft as he is of the financial resources with which to pay for competent legal services. 28-a

VI

The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should
filed within five (5) days from notice thereof and that the arguments in support of said motion shall be filed
within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16). As above
intimated, these rules of procedure were promulgated by the Court of Industrial Relations pursuant to a
legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that
they could have filed it on September 28, 1969, but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of the
petitioning employees? Or more directly and concretely, does the inadvertent omission to comply with a
mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious in the light of the aforecited cases. To accord
supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights sheltered by
the Constitution, is not only incompatible with the basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate rules and regulations, but also does violence to
natural reason and logic. The dominance and superiority of the constitutional right over the aforesaid
Court of Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial
Relations rule as applied in this case does not implement or reinforce or strengthen the constitutional
rights affected,' but instead constrict the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court of Industrial Relations rule, promulgated as it was pursuant to a mere
legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution
and the law. A period of five (5) days within which to file a motion for reconsideration is too short,
especially for the aggrieved workers, who usually do not have the ready funds to meet the necessary
expenses therefor. In case of the Court of Appeals and the Supreme Court, a period of fifteen (15) days
has been fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule
52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration
could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on the
ground that the order sought to be reconsidered "is not in accordance with law, evidence and facts
adduced during the hearing," and likewise prays for an extension of ten (10) days within which to file
arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex
"G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on October 14,
1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of such supporting
arguments counted from the filing of the motion for reconsideration. Herein petitioners received only on
October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for reconsideration for
being pro forma since it was filed beyond the reglementary period (Annex "J", pp. 74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or where the
arguments in suppf such motion are filed beyond the 10 day reglementary period provided for by the
Court of Industrial Relations rules, the order or decision subject of 29-a reconsideration becomes final and
unappealable. But in all these cases, the constitutional rights of free expression, free assembly and
petition were not involved.

It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in such
pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for the first
time on appeal, if it appears that the determination of the constitutional issue is necessary to a decision of
the case, the very lis mota of the case without the resolution of which no final and complete determination
of the dispute can be made. 30 It is thus seen that a procedural rule of Congress or of the Supreme Court
gives way to a constitutional right. In the instant case, the procedural rule of the Court of Industrial
Relations, a creature of Congress, must likewise yield to the constitutional rights invoked by herein
petitioners even before the institution of the unfair labor practice charged against them and in their
defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a
most compelling reason to deny application of a Court of Industrial Relations rule which impinges on such
human rights. 30-a

It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or to
except a particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice
Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that

Under this authority, this Court is enabled to cove with all situations without concerning
itself about procedural niceties that do not square with the need to do justice, in any
case, without further loss of time, provided that the right of the parties to a full day in
court is not substantially impaired. Thus, this Court may treat an appeal as a certiorari
and vice-versa. In other words, when all the material facts are spread in the records
before Us, and all the parties have been duly heard, it matters little that the error of the
court a quo is of judgment or of jurisdiction. We can then and there render the
 appropriate judgment. Is within the contemplation of this doctrine that as it is perfectly
legal and within the power of this Court to strike down in an appeal acts without or in
excess of jurisdiction or committed with grave abuse of discretion, it cannot be beyond
the admit of its authority, in appropriate cases, to reverse in a certain proceed in any error
of judgment of a court a quo which cannot be exactly categorized as a flaw of jurisdiction.
If there can be any doubt, which I do not entertain, on whether or not the errors this Court
has found in the decision of the Court of Appeals are short of being jurisdiction nullities or
excesses, this Court would still be on firm legal grounds should it choose to reverse said
decision here and now even if such errors can be considered as mere mistakes of
judgment or only as faults in the exercise of jurisdiction, so as to avoid the unnecessary
return of this case to the lower court for the sole purpose of pursuing the ordinary course
of an appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this particular case at bar
would an unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers,
whose basic human freedoms, including the right to survive, must be according supremacy over the
property rights of their employer firm which has been given a full hearing on this case, especially when, as
in the case at bar, no actual material damage has be demonstrated as having been inflicted on its
property rights.

If We can disregard our own rules when justice requires it, obedience to the Constitution renders more
imperative the suspension of a Court of Industrial Relations rule that clash with the human rights
sanctioned and shielded with resolution concern by the specific guarantees outlined in the organic law. It
should be stressed that the application in the instant case Section 15 of the Court of Industrial Relations
rules relied upon by herein respondent firm is unreasonable and therefore such application becomes
unconstitutional as it subverts the human rights of petitioning labor union and workers in the light of the
peculiar facts and circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference to
the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which
enjoins the Court of Industrial Relations to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo,
speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:

As to the point that the evidence being offered by the petitioners in the motion for new
trial is not "newly discovered," as such term is understood in the rules of procedure for
the ordinary courts, We hold that such criterion is not binding upon the Court of Industrial
Relations. Under Section 20 of Commonwealth Act No. 103, 'The Court of Industrial
Relations shall adopt its, rules or procedure and shall have such other powers as
generally pertain to a court of justice: Provided, however, That in the hearing,
investigation and determination of any question or controversy and in exercising any
duties and power under this Act, the Court shall act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms and shall not
be bound by any technical rules of legal evidence but may inform its mind in such manner
as it may deem just and equitable.' By this provision the industrial court is disengaged
from the rigidity of the technicalities applicable to ordinary courts. Said court is not even
restricted to the specific relief demanded by the parties but may issue such orders as
may be deemed necessary or expedient for the purpose of settling the dispute or
dispelling any doubts that may give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No.
46496, Feb. 17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For
these reasons, We believe that this provision is ample enough to have enabled the
respondent court to consider whether or not its previous ruling that petitioners constitute
a minority was founded on fact, without regard to the technical meaning of newly
 discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46
Phil. 578). (emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is to
rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek the
sanctuary of human freedoms secured to them by the fundamental law, simply because their counsel
erroneously believing that he received a copy of the decision on September 23, 1969, instead of
September 22, 1969 - filed his motion for reconsideration September 29, 1969, which practically is only
one day late considering that September 28, 1969 was a Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of
justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence on this
score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:

As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315 [1910].
The Villamor decision was cited with approval in Register of Deeds v. Phil. Nat. Bank, 84
Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy,
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910, "technicality. when it
deserts its proper-office as an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts." (Ibid., p, 322.) To that norm, this Court
has remained committed. The late Justice Recto in Blanco v. Bernabe, (63 Phil. 124
[1936]) was of a similar mind. For him the interpretation of procedural rule should never
"sacrifice the ends justice." While "procedural laws are no other than technicalities" view
them in their entirety, 'they were adopted not as ends themselves for the compliance with
which courts have organized and function, but as means conducive to the realization the
administration of the law and of justice (Ibid., p.,128). We have remained steadfastly
opposed, in the highly rhetorical language Justice Felix, to "a sacrifice of substantial
rights of a litigant in altar of sophisticated technicalities with impairment of the sacred
principles of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As
succinctly put by Justice Makalintal, they "should give way to the realities of the
situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to an earlier
formulation of Justice Labrador that rules of procedure "are not to be applied in a very
rigid, technical sense"; but are intended "to help secure substantial justice." (Ibid., p. 843)
... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal
or termination of the employment of the petitioning eight (8) leaders of the Union is harsh for a one-day
absence from work. The respondent Court itself recognized the severity of such a sanction when it did not
include the dismissal of the other 393 employees who are members of the same Union and who
participated in the demonstration against the Pasig police. As a matter of fact, upon the intercession of the
Secretary of Labor, the Union members who are not officers, were not dismissed and only the Union itself
and its thirteen (13) officers were specifically named as respondents in the unfair labor practice charge
filed against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.).
Counsel for respondent firm insinuates that not all the 400 or so employee participated in the
demonstration, for which reason only the Union and its thirteen (13) officers were specifically named in
the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all, of the
morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain any damage.

The appropriate penalty if it deserves any penalty at all should have been simply to charge said
one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner
Union is a most cruel penalty, since as aforestated the Union leaders depend on their wages for their daily
sustenance as well as that of their respective families aside from the fact that it is a lethal blow to
unionism, while at the same time strengthening the oppressive hand of the petty tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek to
destroy our system of Government, but from men of goodwill good men who allow
their proper concerns to blind them to the fact that what they propose to accomplish
involves an impairment of liberty.

... The Motives of these men are often commendable. What we must remember, however,
is that preservation of liberties does not depend on motives. A suppression of liberty has
the same effect whether the suppress or be a reformer or an outlaw. The only protection
against misguided zeal is a constant alertness of the infractions of the guarantees of
liberty contained in our Constitution. Each surrender of liberty to the demands of the
moment makes easier another, larger surrender. The battle over the Bill of Rights is a
never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize that
our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good
conscience must be observe. 31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim that they are being subjected to indignities by the
local police, It was more expedient for the firm to conserve its income or profits than to assist its
employees in their fight for their freedoms and security against alleged petty tyrannies of local police
officers. This is sheer opportunism. Such opportunism and expediency resorted to by the respondent
company assaulted the immunities and welfare of its employees. It was pure and implement selfishness,
if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank
dismissed eight (8) employees for having written and published "a patently libelous letter ... to the Bank
president demanding his resignation on the grounds of immorality, nepotism in the appointment and
favoritism as well as discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro,
We ruled:

It will avail the Bank none to gloat over this admission of the respondents. Assuming that
the latter acted in their individual capacities when they wrote the letter-charge they were
nonetheless protected for they were engaged in concerted activity, in the exercise of their
right of self organization that includes concerted activity for mutual aid and protection,
(Section 3 of the Industrial Peace Act ...) This is the view of some members of this Court.
For, as has been aptly stated, the joining in protests or demands, even by a small group
of employees, if in furtherance of their interests as such, is a concerted activity protected
by the Industrial Peace Act. It is not necessary that union activity be involved or that
collective bargaining be contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
 xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right of
self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB 324
U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine
Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is undenied.
The Industrial Peace Act does not touch the normal exercise of the right of the employer
to select his employees or to discharge them. It is directed solely against the abuse of
that right by interfering with the countervailing right of self organization (Phelps Dodge
Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair labor
practice within the meaning and intendment of section 4(a) of the Industrial Peace Act.
(Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president no
less, such recognition and protection for free speech, free assembly and right to petition are rendered all
the more justifiable and more imperative in the case at bar, where the mass demonstration was not
against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of their
separation from the service until re instated, minus one day's pay and whatever earnings they might have
realized from other sources during their separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

Zaldivar, Castro, Fernando and Esguerra, JJ., concur.

Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the decision
under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing

and operating under and by virtue of the laws of the Philippines with corporate address at
666 Muelle de Binondo, Manila, which is the employer of respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacaang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM 2:00 PM workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at
the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang,
(2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that the demonstration has nothing
to do with the Company because the union has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which reason, the Company,
thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of the demonstration,
who shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company
represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor
Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company reiterated and appealed to the PBMEO
 representatives that while all workers may join the Malacaang demonstration, the
workers for the first and regular shift of March 4, 1969 should be excused from joining the
demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly Article XXIV "NO
LOCKOUT NO STRIKE". All those who will not follow this warning of the Company
shall be dismissed; De Leon reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans inasmuch as the Malacaang
demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the process
paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first
shift, in violation of the existing collective bargaining agreement and without filing the
necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is

found guilty of bargaining in bad faith and is hereby ordered to cease and desist from
further committing the same and its representatives namely: respondent Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly responsible for
perpetrating this unfair labor practice act, are hereby considered to have lost their status
as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on September 23,
1969, there seems to be no serious question that they were actually served therewith on September 22,
1969. In fact, petitioners admitted this date of notice in paragraph 2 of their Petition for Relief dated
October 30, 1969 and filed with the industrial court on the following day. (See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of
the court's decision, that petitioners filed their motion for reconsideration with the industrial court; as it is
also not disputed that they filed their "Arguments in Support of the Respondents' Motion for
Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse of the five (5) day period provided for the filing
thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were filed five (5) days
after the expiration of the period therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely,
that in view of the failure of petitioners to file not only their motion for reconsideration but also their
arguments in support thereof within the periods respectively fixed in the rules therefor, the Court of
Industrial Relations acted correctly and within the law in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of
this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations 1 wherein it was ruled that:

August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge
Arsenio I. Martinez, the dispositive part of which was set forth earlier in this opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its arguments in support of its
motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking
reconsideration.

September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration.
Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment not merely an interlocutory
order there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in ordering
the Chief of the Examining Division or his representative to compute the compensation
due, the Industrial Court unduly delegated its judicial functions and thereby rendered an
incomplete decision. We do not believe so. Computation of the overtime pay involves a
mechanical function, at most. And the report would still have to be submitted to the
Industrial Court for its approval, by the very terms of the order itself. That there was no
specification of the amount of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear enough in the implementation of the
decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no longer,
be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer
the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of
the trial judge must do so within five (5) days from the date on which he received notice
of the decision, subject of the motion. Next follows Section 16 which says that the motion
must be submitted with arguments supporting the same. But if said arguments could not
be submitted simultaneously with the motion, the same section commands the 'the
movant shall file the same within ten (10) days from the date of the filing of his motion for
reconsideration.' Section 17 of the same rules admonishes a movant that "(f)ailure to
observe the above-specified periods shall be sufficient cause for dismissal of the motion
for reconsideration or striking out of the answer and/or the supporting arguments, as the
case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro
forma motion for reconsideration was filed out of time its denial is in order pursuant to
CIR rules, regardless of whether the arguments in support of said motion were or were
not filed on time. Pangasinan Employees Laborers & Tenants Association (PELTA) vs.
Martinez, (L-13846, May 20, 1960) pronounced that where a motion to reconsider is filed
out of time, the order or decision subject of reconsideration comes final. And so also,
where the arguments in support of the motion for reconsideration are filed beyond the
ten-day reglementary period, the pre forma motion for reconsideration although
seasonably filed must nevertheless be denied. This in essence is our ruling in Local 7,
Press & Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon Stevedoring
Co., Inc. vs. Court of Industrial Relations, is that where the motion for reconsideration is
denied upon the ground that the arguments in support thereof were filed out of time, the
order or decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court in
the case before us. On August 6, petitioner received a copy of the judgment of Judge
Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider without arguments in
support thereof of August 12 was filed on time. For, August 11, the end of the five-day
reglementary period to file a motion for reconsideration, was a Sunday. But, actually, the
written arguments in support of the said motion were submitted to the court on August 27.
The period from August 12 to August 27, is a space of fifteen (15) days. Surely enough,
said arguments were filed out of time five (5) days late. And the judgment had become
final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time
within which to present its arguments in support of its motion. Counsel in his petition
before this Court pleads that the foregoing motion was grounded on the 'extremely busy
and difficult schedule of counsel which would not enable him to do so within the stated
ten-day reglementary period. The arguments were only filed on August 27 five (5) days
late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the motion
for expansion of time was filed only on August 21, that is, one day before the due date
which is August 22. It was petitioner's duty to see to it that the court act on this motion
forthwith or at least inquire as to the fate thereof not later than the 22nd of August. It did
not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the disposition of cases",

CIR "has a standing rule against the extension of the ten-day period for filing supporting
arguments". That no-extension policy should have placed petitioner on guard. It should
not have simply folded its arms, sit by supinely and relied on the court's generosity. To
compound petitioner's neglect, it filed the arguments only on August 27, 1953, knowing
full well that by that time the reglementary period had expired.
 Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the
motion for reconsideration on the ground that the supporting arguments were filed out of
time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review the
same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified,
much less revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in holding them guilty of bargaining in bad faith but also
to ultimately uphold petitioners' claim for reinstatement on constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances, so
scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere admiration for the eloquence and zeal of Mr. Justice
Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners themselves and in the
light of its attendant circumstances, this case does not call for the resolution of any constitutional issue.
Admittedly, the invocation of any constitutional guarantee, particularly when it directly affects individual
freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my understanding
of constitutional law and judicial practices related thereto, however, that even the most valuable of our
constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with substantive and
procedural due process are observed. No doubt no constitutional right can be sacrificed in the altar of
procedural technicalities, very often fittingly downgraded as niceties but as far as I know, this principle is
applied to annul or set aside final judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or cited in the well-documented
main opinion, wherein a final and executory judgment has been invalidated and set aside upon the
ground that the same has the effect of sanctioning the violation of a constitutional right, unless such
violation amounts to a denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or reason
of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and
accepted as an absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24
SCRA 663, which is mentioned almost in passing, does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment". And, of course, Chavez is correct; as is also Abriol
vs. Homeres 2 which, in principle, served as its precedent, for the very simple reason that in both of those
cases, the accused were denied due process. In Chavez, the accused was compelled to testify against
himself as a witness for the prosecution; in Abriol, the accused was denied his request to be allowed to
present evidence to establish his defense after his demurrer to the People's evidence was denied.

As may be seen, however, the constitutional issues involved in those cases are a far cry from the one
now before Us. Here, petitioners do not claim they were denied due process. Nor do they pretend that in
denying their motion for reconsideration, "the respondent Court of Industrial Relations and private firm
trenched upon any of their constitutional immunities ...," contrary to the statement to such effect in the
main opinion. Indeed, neither in the petition herein nor in any of the other pleading of petitioners can any
direct or indirect assertion be found assailing the impugned decision of the respondent court as being null
and void because it sanctioned a denial of a valued constitutional liberty.

In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the Motion
for Reconsideration filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and narrow
technical rules of procedure without taking into account justice, equity and substantial
merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in their
brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably
assemble and petition the government for redress of grievances constitute bargaining in
bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the union
was guilty of bargaining in bad faith meriting the dismissal of the persons allegedly
responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one way
or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad faith
and consequently dismissing the persons allegedly responsible therefor, because such
conclusion is country to the evidence on record; that the dismissal of leaders was
discriminatory.

As a result of exercising the constitutional rights of freedom to assemble and petition the
duly constituted authorities for redress of their grievances, the petitioners were charged
and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out by
the records. It was not even alleged nor proven by evidence. What has been alleged and
which the respondent company tried to prove was that the demonstration amounted to a
strike and hence, a violation of the provisions of the "no-lockout no strike" clause of
the collective bargaining agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the respondent court in the same
decision stated categorically:
 'The company alleges that the walkout because of the demonstration is
tantamount to a declaration of a strike. We do not think so, as the same
is not rooted in any industrial dispute although there is a concerted act
and the occurrence of a temporary stoppage of work.' (Emphasis
supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in bad
faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work will
not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the first
shift shall be excluded in the demonstration is not tantamount to bargaining in bad faith
because the company knew that the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration without their officers. It must be
stated that the company intends to prohibit its officers to lead and join the demonstration
because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the CBA is
a conclusion of facts, opinionated and not borne by any evidence on record. The
demonstration did not practically change the terms or conditions of employment because
it was only for one (1) day and the company knew about it before it went through. We can
even say that it was the company who bargained in bad faith, when upon representation
of the Bureau of Labor not to dismiss the employees demonstrating, the company tacitly
approved the same and yet while the demonstration was in progress, the company filed a
ULP Charge and consequently dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in the
demonstration and yet, the respondent court selected the eight officers to be dismissed
from the union thus losing their status as employees of the respondent company. The
respondent court should have taken into account that the company's action in allowing
the return of more or less three hundred ninety two (392) employees/members of the
union is an act of condonation and the dismissal of the eight (8) officers is an act of
discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L-
8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by the court,
while there is a collective bargaining agreement, the union cannot go on demonstration or
go on strike because it will change the terms and conditions of employment agreed in the
CBA. It follows that the CBA is over and above the constitutional rights of a man to
demonstrate and the statutory rights of a union to strike as provided for in Republic Act
875. This creates a bad precedent because it will appear that the rights of the union is
solely dependent upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties
affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct.
185, 57 Law ed. 431.) Only by confining the administrative tribunal to the evidence
 disclosed to the parties, can the latter be protected in their rights to know and meet the
case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in bad
faith. Corollary therefore, the dismissal of the individual petitioners is without basis either
in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in bad
faith and consequently lost their status as employees of the respondent company did not
meet the meaning and comprehension of "substantial merits of the case." Bargaining in
bad faith has not been alleged in the complaint (Annex "C", Petition) nor proven during
the hearing of the can. The important and substantial merit of the case is whether under
the facts and circumstances alleged in respondent company's pleadings, the
demonstration done by the petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike no lock out" clause of the Collective Bargaining Agreement.
Petitioners respectfully reiterate and humbly submit, that the respondent court had
altogether opined and decided that such demonstration does not amount to a strike.
Hence, with that findings, petitioners should have been absolved of the charges against
them. Nevertheless, the same respondent court disregarding, its own findings, went out
of bounds by declaring the petitioners as having "bargained in faith." The stand of the
respondent court is fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble peaceably to
air grievances against the duly constituted authorities as guaranteed in our Constitution is
subject to the limitation of the agreement in the Collective Bargaining Agreement. The
fundamental rights of the petitioners to free speech and assembly is paramount to the
provision in the Collective Bargaining Agreement and such attempt to override the
constitutional provision would be null and void. These fundamental rights of the
petitioners were not taken into consideration in the deliberation of the case by the
respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process.
They do not posit that the decision of the industrial court is null and void on that constitutional ground.
True it is that they fault the respondent court for having priced the provisions of the collective bargaining
agreement herein involved over and above their constitutional right to peaceably assemble and petition
for redress of their grievances against the abuses of the Pasig police, but in no sense at all do they allege
or contend that such action affects its jurisdiction in a manner that renders the proceedings a nullity. In
other words, petitioners themselves consider the alleged flaw in the court's action as a mere error of
judgment rather than that of jurisdiction which the main opinion projects. For this Court to roundly and
indignantly condemn private respondent now for the grievous violation of the fundamental law the main
opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific
issue has not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the
simple reason that the manner this case was brought to Us does not afford it the opportunity to be heard
in regard to such supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding
petitioners guilty of bargaining in bad faith when the charge against them alleged in the complaint was for
having conducted a mass demonstration, which "amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this jurisdictional question has no constitutional color. Indeed, We
can even assume for the sake of argument, that the trial judge did err in not giving preferential importance
to the fundamental freedoms invoked by the petitioners over the management and proprietary attributes
claimed by the respondent private firm still, We cannot rightly hold that such disregard of petitioners'
priceless liberties divested His Honor of jurisdiction in the premises. The unbending doctrine of this Court
is that "decisions, erroneous or not, become final after the period fixed by law; litigations would be
endless, no questions would be finally settled; and titles to property would become precarious if the losing
party were allowed to reopen them at any time in the future". 3

I only have to add to this that the fact that the error is in the interpretation, construction or application of a
constitutional precept not constituting a denial of due process, should not make any difference. Juridically,
a party cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute
than by a misconstrued or constitutional injunction affecting his individual, freedoms. In both instances,
there is injustice which should be intolerable were it not for the more paramount considerations that
inform the principle of immutability of final judgments. I dare say this must be the reason why, as I have
already noted, the main opinion does not cite any constitutional provision, law or rule or any judicial
doctrine or principle supporting its basic holding that infringement of constitutional guarantees, other than
denial of due process, divests courts of jurisdiction to render valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges and
Universities vs. Secretary of Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a constitutional point is specifically
raised, insisted upon and adequately argued, the court will not consider it". In the case at bar, the
petitioners have not raised, they are not insisting upon, much less have they adequately argued the
constitutional issues so extendedly and ably discussed in the main opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a
court of a constitutional issue not amounting to a denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even after said judgment or decision has become final and
executory. I have actually tried to bring myself into agreement with the views of the distinguished and
learned writer of the main opinion, if only to avoid dissenting from his well prepared thesis, but its obvious
incongruity with settled jurisprudence always comes to the fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the
Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to
realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of statutes,
treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the manner provided
in the law of the Rules of Court. In other words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there must first be a showing of compliance
with the applicable procedural law or rules, among them, those governing appeals from the Court of
Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is
already final and executory, this Court would be devoid of power and authority to review, much less alter
or modify the same, absent any denial of due process or fatal defect of jurisdiction. It must be borne in
mind that the situation confronting Us now is not merely whether or not We should pass upon a question
or issue not specifically raised by the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the real problem here is whether or not We
have jurisdiction to entertain it. And, in this regard, as already stated earlier, no less than Justice Conrado
Sanchez, the writer of Chavez, supra., which is being relied upon by the main opinion, already laid down
the precedent in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case,
We have no choice but to follow, that is, that in view of reconsideration but even their argument
supporting the same within the prescribed period, "the judgment (against them)has become final, beyond
recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments
are made contingent on the correctness thereof from the constitutional standpoint, and that in truth,
whether or not they are correct is something that is always dependent upon combined opinion of the
members of the Supreme Court, which in turn is naturally as changeable as the members themselves are
changed, I cannot conceive of anything more pernicious and destructive to a trustful administration of
justice than the idea that, even without any showing of denial of due process or want of jurisdiction of the
court, a final and executory judgment of such court may still be set aside or reopened in instances other
than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1) of the Civil Code.
7
And just to emphasize the policy of the law of respecting judgments once they have become final, even
as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors, 8 it is
only when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside, 9
and this only when the remedy is sought within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become final, the
winning party be not, through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to bring about that result.
Constituted as they are to put an end to controversies, courts should frown upon any
attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end to controversies. To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set
up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus keep
causes ever within his power, to determine and redetermine them term after term, to
bandy his judgments about from one party to the other, and to change his conclusions as
freely and as capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs.
Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or alteration
of a final and executory judgment. I want to emphasize that my position in this opinion
does not detract a whit from the soundness, authority and binding force of existing
doctrines enjoining any such modifications. The public policy of maintaining faith and
respect in judicial decisions, which inform said doctrines, is admittedly of the highest
order. I am not advocating any departure from them. Nor am I trying to put forth for
execution a decision that I believe should have been rather than what it is. All I am doing
is to view not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-
20950, as it is and not as I believe it should have been, and, by opinion, I would like to
guide the court a quo as to what, in my own view, is the true and correct meaning and
implications of decision of this Court, not that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein
the Court refused to be constrained by technical rules of procedure in its determination to accord
substantial justice to the parties I still believe in those decisions, some of which were penned by me. I am
certain, however, that in none of those precedents did this Court disturb a judgment already final and
executory. It too obvious to require extended elucidation or even reference any precedent or authority that
the principle of immutability of final judgments is not a mere technicality, and if it may considered to be in
a sense a procedural rule, it is one that is founded on public policy and cannot, therefore, yield to the
ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far
as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point of
nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations Rule,
promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore is beyond
the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion
for reconsideration is too short, especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec.
10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This
fact accentuates the unreasonableness of the Court of Industrial Relations Rule insofar as circumstances
of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a critical
view of the rule in question. Said rule provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date
on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of the
allegations of fact, and serving a copy thereof, personally or by registered mail, on the
adverse party. The latter may file an answer, in six (6) copies, duly verified under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments supporting
the same. If the arguments can not be submitted simultaneously with said motions, upon
notice Court, the movant shall file same within ten (10) days from the date of the filing of
his motion for reconsideration. The adverse party shall also file his answer within ten (10)
days from the receipt by him of a copy of the arguments submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall be
deemed submitted for resolution of the Court in banc, unless it is considered necessary
to bear oral arguments, in which case the Court shall issue the corresponding order or
notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal of
the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the
industrial court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds therefor, without prejudice to supplementing the same by
making the necessary exposition, with citations laws and authorities, in the written arguments the be filed
(10) days later. In truth, such a pro-forma motion has to effect of just advising the court and the other
party that the movant does not agree with the judgment due to fundamental defects stated in brief and
general terms. Evidently, the purpose of this requirement is to apprise everyone concerned within the
shortest possible time that a reconsideration is to sought, and thereby enable the parties concerned to
make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital
industries in which labor-management problems might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of each party at every imports juncture of the case be
known to the other so that both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the
motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with law,
evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective arguments
within ten (10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such a motion is to me
simply incomprehensible. What worse in this case is that petitioners have not even taken
the trouble of giving an explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written arguments in support of their
motion, and, the only excuse offered for such delay is that both the President of the Union
and the office clerk who took charge of the matter forgot to do what they were instructed
to do by counsel, which, according to this Court, as I shall explain anon "is the most
hackneyed and habitual subterfuge employed by litigants who fail to observe the
procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook
such nonchalance and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation they
have the effect of either creating or terminating rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered such final judgment is deprived of jurisdiction or
authority to alter or modify the same enhances such substantive character. Moreover, because they have
the effect of terminating rights and the enforcement thereof, it may be said that said rules partake of the
nature also of rules of prescription, which again are substantive. Now, the twin predicates of prescription
are inaction or abandonment and the passage of time or a prescribed period. On the other hand,
procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is
not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and
be has no reason to complain because public policy demands that rights must be asserted in time, as
otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of petitioners.
Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the
rules aforequoted of the Court of Industrial Relations. Besides, I have grave doubts as to whether we can
suspend rules of other courts, particularly that is not under our supervisory jurisdiction, being
administrative agency under the Executive Department Withal, if, in order to hasten the administration of
substance justice, this Court did exercise in some instances its re power to amend its rules, I am
positively certain, it has done it for the purpose of reviving a case in which the judo has already become
final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their
Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to
file "Arguments in Support of their Motion for Reconsideration within the reglementary period or five (5), if
not seven (7), days late "was due to excusable negligence and honest mistake committed by the
President of the respondent Union and on office clerk of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2) which in brief, consisted allegedly of the President's
having forgotten his appointment with his lawyer "despite previous instructions and of the said office
employee having also coincidentally forgotten "to do the work instructed (sic) to (him) by Atty. Osorio"
because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations, for, under
probably more justification circumstances, this Court ruled out a similar explanation previous case this
wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for his
failure to perfect in due time appeal from the judgment of the Municipal Court, that
counsel's clerk forgot to hand him the court notice, is the most hackneyed and habitual
subterfuge employed by litigants who fail to observe procedural requirements prescribed
by the Rules of Court. The uncritical acceptance of this kind of common place excuses, in
the face of the Supreme Court's repeated rulings that they are neither credible nor
constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952;
Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19
SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present
case has already become final and executory, nay, not without the fault of the petitioners, hence, no
matter how erroneous from the constitutional viewpoint it may be, it is already beyond recall, I vote to
dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacaang on March 4, 1969 in protest against alleged
abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under
pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual
petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad
faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding that it
concededly was not a declaration of strike nor directed in any manner against respondent employer, and
ordering the dismissal of the union office manifestly constituted grave abuse of discretion in fact and in
law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution" and
the union up to the day of the demonstration pleaded by cablegram to the company to excuse the first
shift and allow it to join the demonstration in accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause
as would warrant the union leaders' dismissal, since as found by respondent court itself the mass
demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been
filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to the
negligence of petitioners' counsel and/or the union president should likewise be set aside as a manifest
act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse consequences of
the late filing of their motion for reconsideration due to such negligence which was not acted upon by
respondent court should have been granted, considering the monstrous injustice that would otherwise
be caused the petitioners through their summary dismissal from employment, simply because they sought
in good faith to exercise basic human rights guaranteed them by the Constitution. It should be noted
further that no proof of actual loss from the one-day stoppage of work was shown by respondent
company, providing basis to the main opinion's premise that its insistence on dismissal of the union
leaders for having included the first shift workers in the mass demonstration against its wishes was but an
act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction
to afford protection to labor be given true substance and meaning. No person may be deprived of such
basic rights without due process which is but "responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided ... Due process
is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as
freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the
judgment for petitioners as set forth in the main opinion.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to dissent.

The background of this case may be found principally in the stipulation of facts upon which the decision
under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a corporation existing

and operating under and by virtue of the laws of the Philippines with corporate address at
666 Muelle de Binondo, Manila, which is the employer of respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for short, is a

legitimate labor organization, and the respondents herein are either officers of
respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacaang in protest against alleged abuses of the Pasig Police
 Department to be participated by the first shift (6:00 AM 2:00 PM workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M. at
the Company's canteen, and those present were: for the Company: (1) Mr. Arthur L. Ang,
(2) Atty. Cesareo S. de Leon, Jr. (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that the demonstration has nothing
to do with the Company because the union has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which reason, the Company,
thru Atty. C.S. de Leon, warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of absence approved by the
Company, particularly the officers present who are the organizers of the demonstration,
who shall fail to report for work the following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked. Company
represented by Atty. C.S. de Leon, Jr. The Union panel was composed of: Nicanor
Tolentino, Rodulfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this afternoon
meeting of March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacaang demonstration, the
workers for the first and regular shift of March 4, 1969 should be excused from joining the
demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd
shifts in order not to violate the provisions of the CBA, particularly Article XXIV "NO
LOCKOUT NO STRIKE". All those who will not follow this warning of the Company
shall be dismissed; De Leon reiterated the Company's warning that the officers shall be
primarily liable being the organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans inasmuch as the Malacaang
demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.

Additionally, the trial court found that "the projected demonstration did in fact occur and in the process
paralyzed to a large extent the operations of the complainant company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed with said court a
complaint for Unfair Labor Practice against petitioners charging that: .
 3. That on March 4, 1969, respondents (petitioners herein) particularly those in the first
shift, in violation of the existing collective bargaining agreement and without filing the
necessary notice as provided for by law, failed to report for work, amounting to a
declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6, in relation to
Sections 13, 14 and 15 of Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees Organization is

found guilty of bargaining in bad faith and is hereby ordered to cease and desist from
further committing the same and its representatives namely: respondent Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly responsible for
perpetrating this unfair labor practice act, are hereby considered to have lost their status
as employees of the Philippine Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this decision on September 23,
1969, there seems to be no serious question that they were actually served therewith on September 22,
1969. In fact, petitioners admitted this date of notice in paragraph 2 of their Petition for Relief dated
October 30, 1969 and filed with the industrial court on the following day. (See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days after they were notified of
the court's decision, that petitioners filed their motion for reconsideration with the industrial court; as it is
also not disputed that they filed their "Arguments in Support of the Respondents' Motion for
Reconsideration" only on October 14, 1969. (See Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse of the five (5) day period provided for the filing
thereof in the rules of the Court of Industrial Relations, whereas the "Arguments" were filed five (5) days
after the expiration of the period therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent private firm, namely,
that in view of the failure of petitioners to file not only their motion for reconsideration but also their
arguments in support thereof within the periods respectively fixed in the rules therefor, the Court of
Industrial Relations acted correctly and within the law in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts hereof is the decision of
this Court in Elizalde & Co. Inc. vs. Court of Industrial Relations 1 wherein it was ruled that:

August 6, 1963. Petitioner received a copy of the decision of the then Associate Judge
Arsenio I. Martinez, the dispositive part of which was set forth earlier in this opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No arguments were
advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its arguments in support of its
motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its aforesaid motion seeking
reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion for reconsideration.
Ground therefor was that the arguments were filed out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same time lodged the
present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents did not file their
brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment not merely an interlocutory
order there is no doubt. The fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision incomplete. This in effect is the
holding of the Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next contended that in ordering
the Chief of the Examining Division or his representative to compute the compensation
due, the Industrial Court unduly delegated its judicial functions and thereby rendered an
incomplete decision. We do not believe so. Computation of the overtime pay involves a
mechanical function, at most. And the report would still have to be submitted to the
Industrial Court for its approval, by the very terms of the order itself. That there was no
specification of the amount of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear enough in the implementation of the
decision (see Malate Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that it can no longer,
be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this Court both answer
the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider the judgment of
the trial judge must do so within five (5) days from the date on which he received notice
of the decision, subject of the motion. Next follows Section 16 which says that the motion
must be submitted with arguments supporting the same. But if said arguments could not
be submitted simultaneously with the motion, the same section commands the 'the
movant shall file the same within ten (10) days from the date of the filing of his motion for
reconsideration.' Section 17 of the same rules admonishes a movant that "(f)ailure to
observe the above-specified periods shall be sufficient cause for dismissal of the motion
for reconsideration or striking out of the answer and/or the supporting arguments, as the
case may be".

Not that the foregoing rules stand alone. Jurisprudence has since stabilized the
enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil. 956) we ruled that where a pro
forma motion for reconsideration was filed out of time its denial is in order pursuant to
CIR rules, regardless of whether the arguments in support of said motion were or were
not filed on time. Pangasinan Employees Laborers & Tenants Association (PELTA) vs.
Martinez, (L-13846, May 20, 1960) pronounced that where a motion to reconsider is filed
out of time, the order or decision subject of reconsideration comes final. And so also,
where the arguments in support of the motion for reconsideration are filed beyond the
ten-day reglementary period, the pre forma motion for reconsideration although
seasonably filed must nevertheless be denied. This in essence is our ruling in Local 7,
Press & Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon Stevedoring
Co., Inc. vs. Court of Industrial Relations, is that where the motion for reconsideration is
 denied upon the ground that the arguments in support thereof were filed out of time, the
order or decision subject of the motion becomes "final and unappealable".

We find no difficulty in applying the foregoing rules and pronouncements of this Court in
the case before us. On August 6, petitioner received a copy of the judgment of Judge
Arsenio I. Martinez aforesaid. Petitioner's motion to reconsider without arguments in
support thereof of August 12 was filed on time. For, August 11, the end of the five-day
reglementary period to file a motion for reconsideration, was a Sunday. But, actually, the
written arguments in support of the said motion were submitted to the court on August 27.
The period from August 12 to August 27, is a space of fifteen (15) days. Surely enough,
said arguments were filed out of time five (5) days late. And the judgment had become
final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking extension of time
within which to present its arguments in support of its motion. Counsel in his petition
before this Court pleads that the foregoing motion was grounded on the 'extremely busy
and difficult schedule of counsel which would not enable him to do so within the stated
ten-day reglementary period. The arguments were only filed on August 27 five (5) days
late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be noted that the motion
for expansion of time was filed only on August 21, that is, one day before the due date
which is August 22. It was petitioner's duty to see to it that the court act on this motion
forthwith or at least inquire as to the fate thereof not later than the 22nd of August. It did
not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the disposition of cases",

CIR "has a standing rule against the extension of the ten-day period for filing supporting
arguments". That no-extension policy should have placed petitioner on guard. It should
not have simply folded its arms, sit by supinely and relied on the court's generosity. To
compound petitioner's neglect, it filed the arguments only on August 27, 1953, knowing
full well that by that time the reglementary period had expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963 dismissing the
motion for reconsideration on the ground that the supporting arguments were filed out of
time. That ruling in effect denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We may not review the
same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been in any way modified,
much less revoked or reversed by this Court, the main opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in holding them guilty of bargaining in bad faith but also
to ultimately uphold petitioners' claim for reinstatement on constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an exposition of the
constitutional guarantees of freedoms of speech and peaceful assembly for redress of grievances, so
scholarly and masterful that it is bound to overwhelm Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere admiration for the eloquence and zeal of Mr. Justice
Makasiar's brilliant dissertation, to dutifully state that as presented by petitioners themselves and in the
light of its attendant circumstances, this case does not call for the resolution of any constitutional issue.
Admittedly, the invocation of any constitutional guarantee, particularly when it directly affects individual
freedoms enshrined in the bill of rights, deserves the closest attention of this Court. It is my understanding
of constitutional law and judicial practices related thereto, however, that even the most valuable of our
constitutional rights may be protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with substantive and
procedural due process are observed. No doubt no constitutional right can be sacrificed in the altar of
procedural technicalities, very often fittingly downgraded as niceties but as far as I know, this principle is
applied to annul or set aside final judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or cited in the well-documented
main opinion, wherein a final and executory judgment has been invalidated and set aside upon the
ground that the same has the effect of sanctioning the violation of a constitutional right, unless such
violation amounts to a denial of due process.

Without support from any provision of the constitution or any law or from any judicial precedent or reason
of principle, the main opinion nudely and unqualifiedly asserts, as if it were universally established and
accepted as an absolute rule, that the violation of a constitutional right divests the court of jurisdiction; and
as a consequence its judgment is null and void and confers no rights". Chavez vs. Court of Appeals, 24
SCRA 663, which is mentioned almost in passing, does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus
proceedings even after the finality of the judgment". And, of course, Chavez is correct; as is also Abriol
vs. Homeres 2 which, in principle, served as its precedent, for the very simple reason that in both of those
cases, the accused were denied due process. In Chavez, the accused was compelled to testify against
himself as a witness for the prosecution; in Abriol, the accused was denied his request to be allowed to
present evidence to establish his defense after his demurrer to the People's evidence was denied.

As may be seen, however, the constitutional issues involved in those cases are a far cry from the one
now before Us. Here, petitioners do not claim they were denied due process. Nor do they pretend that in
denying their motion for reconsideration, "the respondent Court of Industrial Relations and private firm
trenched upon any of their constitutional immunities ...," contrary to the statement to such effect in the
main opinion. Indeed, neither in the petition herein nor in any of the other pleading of petitioners can any
direct or indirect assertion be found assailing the impugned decision of the respondent court as being null
and void because it sanctioned a denial of a valued constitutional liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is whether or not the
respondent Court en banc under the facts and circumstances, should consider the Motion
for Reconsideration filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari, humbly beg this
Honorable Court to treat this petition under Rule 43 and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the strict and narrow
technical rules of procedure without taking into account justice, equity and substantial
merits of the case.

On the other hand, the complete argument submitted by petitioners on this point in their
brief runs thus:

III

ISSUES
1. Does the refusal to heed a warning in the exercise of a fundamental right to peaceably
assemble and petition the government for redress of grievances constitute bargaining in
bad faith? and,

Do the facts found by the court below justify the declaration and conclusion that the union
was guilty of bargaining in bad faith meriting the dismissal of the persons allegedly
responsible therefore?

2. Was there grave abuse of discretion when the respondent court refused to act one way
or another on the petition for relief from the resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of bargaining in bad faith
and consequently dismissing the persons allegedly responsible therefor, because such
conclusion is country to the evidence on record; that the dismissal of leaders was
discriminatory.

As a result of exercising the constitutional rights of freedom to assemble and petition the
duly constituted authorities for redress of their grievances, the petitioners were charged
and then condemned of bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were not borne out by
the records. It was not even alleged nor proven by evidence. What has been alleged and
which the respondent company tried to prove was that the demonstration amounted to a
strike and hence, a violation of the provisions of the "no-lockout no strike" clause of
the collective bargaining agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the respondent court in the same
decision stated categorically:

'The company alleges that the walkout because of the demonstration is

tantamount to a declaration of a strike. We do not think so, as the same
is not rooted in any industrial dispute although there is a concerted act
and the occurrence of a temporary stoppage of work.' (Emphasis
supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union bargained in bad
faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the respondent company
convened twice in a meeting to thresh out the matter of demonstration. Petitioners
requested that the employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so that the hours of work will
not be disrupted, immediately threatened the employees of mass dismissal;

Third, the refusal of the petitioner union to grant the request of the company that the first
shift shall be excluded in the demonstration is not tantamount to bargaining in bad faith
because the company knew that the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration without their officers. It must be
 stated that the company intends to prohibit its officers to lead and join the demonstration
because most of them belonged to the first shift; and

Fourth, the findings of the respondent court that the demonstration if allowed will
practically give the union the right to change the working conditions agreed in the CBA is
a conclusion of facts, opinionated and not borne by any evidence on record. The
demonstration did not practically change the terms or conditions of employment because
it was only for one (1) day and the company knew about it before it went through. We can
even say that it was the company who bargained in bad faith, when upon representation
of the Bureau of Labor not to dismiss the employees demonstrating, the company tacitly
approved the same and yet while the demonstration was in progress, the company filed a
ULP Charge and consequently dismissed those who participated.

Records of the case show that more or less 400 members of the union participated in the
demonstration and yet, the respondent court selected the eight officers to be dismissed
from the union thus losing their status as employees of the respondent company. The
respondent court should have taken into account that the company's action in allowing
the return of more or less three hundred ninety two (392) employees/members of the
union is an act of condonation and the dismissal of the eight (8) officers is an act of
discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L-
8197, Oct. 31, 1958). Seemingly, from the opinion stated in the decision by the court,
while there is a collective bargaining agreement, the union cannot go on demonstration or
go on strike because it will change the terms and conditions of employment agreed in the
CBA. It follows that the CBA is over and above the constitutional rights of a man to
demonstrate and the statutory rights of a union to strike as provided for in Republic Act
875. This creates a bad precedent because it will appear that the rights of the union is
solely dependent upon the CBA.

One of the cardinal primary rights which must be respected in proceedings before the
Court of Industrial Relations is that "the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties
affected." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S. 88, 33 S. Ct.
185, 57 Law ed. 431.) Only by confining the administrative tribunal to the evidence
disclosed to the parties, can the latter be protected in their rights to know and meet the
case against them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla of evidence to
support the findings of the respondent court that the petitioner union bargained in bad
faith. Corollary therefore, the dismissal of the individual petitioners is without basis either
in fact or in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of bargaining in bad
faith and consequently lost their status as employees of the respondent company did not
meet the meaning and comprehension of "substantial merits of the case." Bargaining in
bad faith has not been alleged in the complaint (Annex "C", Petition) nor proven during
the hearing of the can. The important and substantial merit of the case is whether under
the facts and circumstances alleged in respondent company's pleadings, the
demonstration done by the petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike no lock out" clause of the Collective Bargaining Agreement.
Petitioners respectfully reiterate and humbly submit, that the respondent court had
altogether opined and decided that such demonstration does not amount to a strike.
Hence, with that findings, petitioners should have been absolved of the charges against
them. Nevertheless, the same respondent court disregarding, its own findings, went out
 of bounds by declaring the petitioners as having "bargained in faith." The stand of the
respondent court is fallacious, as it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to assemble peaceably to
air grievances against the duly constituted authorities as guaranteed in our Constitution is
subject to the limitation of the agreement in the Collective Bargaining Agreement. The
fundamental rights of the petitioners to free speech and assembly is paramount to the
provision in the Collective Bargaining Agreement and such attempt to override the
constitutional provision would be null and void. These fundamental rights of the
petitioners were not taken into consideration in the deliberation of the case by the
respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any issue of due process.
They do not posit that the decision of the industrial court is null and void on that constitutional ground.
True it is that they fault the respondent court for having priced the provisions of the collective bargaining
agreement herein involved over and above their constitutional right to peaceably assemble and petition
for redress of their grievances against the abuses of the Pasig police, but in no sense at all do they allege
or contend that such action affects its jurisdiction in a manner that renders the proceedings a nullity. In
other words, petitioners themselves consider the alleged flaw in the court's action as a mere error of
judgment rather than that of jurisdiction which the main opinion projects. For this Court to roundly and
indignantly condemn private respondent now for the grievous violation of the fundamental law the main
opinion sees in its refusal to allow all its workers to join the demonstration in question, when that specific
issue has not been duly presented to Us and properly argued, is to my mind unfair and unjust, for the
simple reason that the manner this case was brought to Us does not afford it the opportunity to be heard
in regard to such supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of jurisdiction by finding
petitioners guilty of bargaining in bad faith when the charge against them alleged in the complaint was for
having conducted a mass demonstration, which "amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this jurisdictional question has no constitutional color. Indeed, We
can even assume for the sake of argument, that the trial judge did err in not giving preferential importance
to the fundamental freedoms invoked by the petitioners over the management and proprietary attributes
claimed by the respondent private firm still, We cannot rightly hold that such disregard of petitioners'
priceless liberties divested His Honor of jurisdiction in the premises. The unbending doctrine of this Court
is that "decisions, erroneous or not, become final after the period fixed by law; litigations would be
endless, no questions would be finally settled; and titles to property would become precarious if the losing
party were allowed to reopen them at any time in the future". 3

I only have to add to this that the fact that the error is in the interpretation, construction or application of a
constitutional precept not constituting a denial of due process, should not make any difference. Juridically,
a party cannot be less injured by an overlooked or erroneously sanctioned violation of an ordinary statute
than by a misconstrued or constitutional injunction affecting his individual, freedoms. In both instances,
there is injustice which should be intolerable were it not for the more paramount considerations that
inform the principle of immutability of final judgments. I dare say this must be the reason why, as I have
already noted, the main opinion does not cite any constitutional provision, law or rule or any judicial
doctrine or principle supporting its basic holding that infringement of constitutional guarantees, other than
denial of due process, divests courts of jurisdiction to render valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of Colleges and
Universities vs. Secretary of Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a constitutional point is specifically
raised, insisted upon and adequately argued, the court will not consider it". In the case at bar, the
petitioners have not raised, they are not insisting upon, much less have they adequately argued the
constitutional issues so extendedly and ably discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that the erroneous resolution by a
court of a constitutional issue not amounting to a denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even after said judgment or decision has become final and
executory. I have actually tried to bring myself into agreement with the views of the distinguished and
learned writer of the main opinion, if only to avoid dissenting from his well prepared thesis, but its obvious
incongruity with settled jurisprudence always comes to the fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with petitioners under the
authority of our constitutionally irreducible appellate jurisdiction under Section 2(5) of Article VII of the
Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to
realize upon further reflection that the very power granted to us to review decisions of lower courts
involving questions of law(and these include constitutional issues not affecting the validity of statutes,
treaty, executive agreement, etc.) is not unqualified but has to be exercised only in the manner provided
in the law of the Rules of Court. In other words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there must first be a showing of compliance
with the applicable procedural law or rules, among them, those governing appeals from the Court of
Industrial Relations involved herein. Consequently, if by law or rule, a judgment of the industrial court is
already final and executory, this Court would be devoid of power and authority to review, much less alter
or modify the same, absent any denial of due process or fatal defect of jurisdiction. It must be borne in
mind that the situation confronting Us now is not merely whether or not We should pass upon a question
or issue not specifically raised by the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the real problem here is whether or not We
have jurisdiction to entertain it. And, in this regard, as already stated earlier, no less than Justice Conrado
Sanchez, the writer of Chavez, supra., which is being relied upon by the main opinion, already laid down
the precedent in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this case,
We have no choice but to follow, that is, that in view of reconsideration but even their argument
supporting the same within the prescribed period, "the judgment (against them)has become final, beyond
recall".

Indeed, when I consider that courts would be useless if the finality and enforceability of their judgments
are made contingent on the correctness thereof from the constitutional standpoint, and that in truth,
whether or not they are correct is something that is always dependent upon combined opinion of the
members of the Supreme Court, which in turn is naturally as changeable as the members themselves are
changed, I cannot conceive of anything more pernicious and destructive to a trustful administration of
justice than the idea that, even without any showing of denial of due process or want of jurisdiction of the
court, a final and executory judgment of such court may still be set aside or reopened in instances other
than those expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1) of the Civil Code.
7
And just to emphasize the policy of the law of respecting judgments once they have become final, even
as this Court has ruled that final decisions are mute in the presence of fraud which the law abhors, 8 it is
only when the fraud is extrinsic and not intrinsic that final and executory judgments may be set aside, 9
and this only when the remedy is sought within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective and efficient administration of justice that once a judgment has become final, the
winning party be not, through a mere subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any scheme calculated to bring about that result.
Constituted as they are to put an end to controversies, courts should frown upon any
attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38 Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by law. The very
 object for which courts were instituted was to put an end to controversies. To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set
up to spur on the slothful. 'If a vacillating, irresolute judge were allowed to thus keep
causes ever within his power, to determine and redetermine them term after term, to
bandy his judgments about from one party to the other, and to change his conclusions as
freely and as capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.' (See Arnedo vs.
Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and invulnerability of final
judgments but rather on the correct interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:

The point of res adjudicata discussed in the dissents has not escaped my attention.
Neither am I overlooking the point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the revision, amendment or alteration
of a final and executory judgment. I want to emphasize that my position in this opinion
does not detract a whit from the soundness, authority and binding force of existing
doctrines enjoining any such modifications. The public policy of maintaining faith and
respect in judicial decisions, which inform said doctrines, is admittedly of the highest
order. I am not advocating any departure from them. Nor am I trying to put forth for
execution a decision that I believe should have been rather than what it is. All I am doing
is to view not the judgment of Judge Tengco but the decision of this Court in G.R. No. L-
20950, as it is and not as I believe it should have been, and, by opinion, I would like to
guide the court a quo as to what, in my own view, is the true and correct meaning and
implications of decision of this Court, not that of Judge Tengco's.

The main opinion calls attention to many instant precisely involving cases in the industrial court, wherein
the Court refused to be constrained by technical rules of procedure in its determination to accord
substantial justice to the parties I still believe in those decisions, some of which were penned by me. I am
certain, however, that in none of those precedents did this Court disturb a judgment already final and
executory. It too obvious to require extended elucidation or even reference any precedent or authority that
the principle of immutability of final judgments is not a mere technicality, and if it may considered to be in
a sense a procedural rule, it is one that is founded on public policy and cannot, therefore, yield to the
ordinary plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the main opinion goes far
as to maintain that the long existing and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this case does not implement on
reinforce or strengthen the constitutional rights affected, but instead constricts the same to the point of
nullifying the enjoyment thereof by the petitioning employees. Said Court on Industrial Relations Rule,
promulgated as it was pursuant to mere legislative delegation, is unreasonable and therefore is beyond
the authority granted by the Constitution and the law. A period of five (5) days within which to file a motion
for reconsideration is too short, especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of Appeal and the Supreme Court, a
period of fifteen (15) days has been fixed for the filing of the motion for re-hearing or reconsideration (Sec.
10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September 28, 1969 was not a Sunday. This
fact accentuates the unreasonableness of the Court of Industrial Relations Rule insofar as circumstances
of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion suggested. Viewed
objectively, it can readily be seen that there can hardly be any factual or logical basis for such a critical
view of the rule in question. Said rule provides:
 MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5) days from the date
on which he receives notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with respect to the correctness of the
allegations of fact, and serving a copy thereof, personally or by registered mail, on the
adverse party. The latter may file an answer, in six (6) copies, duly verified under oath.

Sec. 16. Both the motion and the answer shall be submitted with arguments supporting
the same. If the arguments can not be submitted simultaneously with said motions, upon
notice Court, the movant shall file same within ten (10) days from the date of the filing of
his motion for reconsideration. The adverse party shall also file his answer within ten (10)
days from the receipt by him of a copy of the arguments submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10) days from the
receipt of the arguments in support of said motion having been filed, the motion shall be
deemed submitted for resolution of the Court in banc, unless it is considered necessary
to bear oral arguments, in which case the Court shall issue the corresponding order or
notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause for dismissal of
the motion for reconsideration or striking out of the answer and/or the supporting
arguments, as the case may be. (As amended April 20, 1951, Court of Industrial
Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted with proceedings in the
industrial court well knows, precisely permits the party aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds therefor, without prejudice to supplementing the same by
making the necessary exposition, with citations laws and authorities, in the written arguments the be filed
(10) days later. In truth, such a pro-forma motion has to effect of just advising the court and the other
party that the movant does not agree with the judgment due to fundamental defects stated in brief and
general terms. Evidently, the purpose of this requirement is to apprise everyone concerned within the
shortest possible time that a reconsideration is to sought, and thereby enable the parties concerned to
make whatever adjustments may be warranted by the situation, in the meanwhile that the litigation is
prolonged. It must borne in mind that cases in the industrial court may involve affect the operation of vital
industries in which labor-management problems might require day-to-day solutions and it is to the best
interests of justice and concerned that the attitude of each party at every imports juncture of the case be
known to the other so that both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or inadequate. In fact, the
motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable Court most
respectfully moves for the RECONSIDERATION of the Order of this Honorable Court
dated September 17, 1969 on the ground that the same is not in accordance with law,
evidence and facts adduced during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their respective arguments
within ten (10) days pursuant to Section 15, 16 & 17 as amended of the Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for Reconsideration be admitted.

 Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such a motion is to me
simply incomprehensible. What worse in this case is that petitioners have not even taken
the trouble of giving an explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written arguments in support of their
motion, and, the only excuse offered for such delay is that both the President of the Union
and the office clerk who took charge of the matter forgot to do what they were instructed
to do by counsel, which, according to this Court, as I shall explain anon "is the most
hackneyed and habitual subterfuge employed by litigants who fail to observe the
procedural requirements prescribed by the Rules of Court". (Philippine Airlines, Inc. vs.
Arca, infra). And yet, very indignantly, the main opinion would want the Court to overlook
such nonchalance and indifference.

In this connection, I might add that in my considered opinion, the rules fixing periods for the finality of
judgments are in a sense more substantive than procedural in their real nature, for in their operation they
have the effect of either creating or terminating rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered such final judgment is deprived of jurisdiction or
authority to alter or modify the same enhances such substantive character. Moreover, because they have
the effect of terminating rights and the enforcement thereof, it may be said that said rules partake of the
nature also of rules of prescription, which again are substantive. Now, the twin predicates of prescription
are inaction or abandonment and the passage of time or a prescribed period. On the other hand,
procrastination or failure to act on time is unquestionably a form of abandonment, particularly when it is
not or cannot be sufficiently explained. The most valuable right of a party may be lost by prescription, and
be has no reason to complain because public policy demands that rights must be asserted in time, as
otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the case of petitioners.
Hence, I feel disinclined to adopt the suggestion that the Court suspend, for the purposes of this case the
rules aforequoted of the Court of Industrial Relations. Besides, I have grave doubts as to whether we can
suspend rules of other courts, particularly that is not under our supervisory jurisdiction, being
administrative agency under the Executive Department Withal, if, in order to hasten the administration of
substance justice, this Court did exercise in some instances its re power to amend its rules, I am
positively certain, it has done it for the purpose of reviving a case in which the judo has already become
final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated effort to salvage their
Petitioners filed in the industrial court on October 31, 1969 a Petition for relief alleging that their failure to
file "Arguments in Support of their Motion for Reconsideration within the reglementary period or five (5), if
not seven (7), days late "was due to excusable negligence and honest mistake committed by the
President of the respondent Union and on office clerk of the counsel for respondents as shown attested in
their respective affidavits", (See Annexes K, and K-2) which in brief, consisted allegedly of the President's
having forgotten his appointment with his lawyer "despite previous instructions and of the said office
employee having also coincidentally forgotten "to do the work instructed (sic) to (him) by Atty. Osorio"
because he "was busy with clerical jobs". No sympathy at all can be evoked these allegations, for, under
probably more justification circumstances, this Court ruled out a similar explanation previous case this
wise:

We find merit in PAL's petition. The excuse offered respondent Santos as reason for his
failure to perfect in due time appeal from the judgment of the Municipal Court, that
counsel's clerk forgot to hand him the court notice, is the most hackneyed and habitual
subterfuge employed by litigants who fail to observe procedural requirements prescribed
by the Rules of Court. The uncritical acceptance of this kind of common place excuses, in
the face of the Supreme Court's repeated rulings that they are neither credible nor
constitutive of excusable negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952;
 Mercado vs. Judge Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion. (Philippine Air Lines, Inc. Arca, 19
SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be reviewed in the present
case has already become final and executory, nay, not without the fault of the petitioners, hence, no
matter how erroneous from the constitutional viewpoint it may be, it is already beyond recall, I vote to
dismiss this case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacaang on March 4, 1969 in protest against alleged
abuses of the Pasig police department, upon two days' prior notice to respondent employer company, as
against the latter's insistence that the first shift 1 should not participate but instead report for work, under
pain of dismissal, the industrial court ordered the dismissal from employment of the eight individual
petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint of bargaining in bad
faith and unfair labor practice for having so carried out the mass demonstration, notwithstanding that it
concededly was not a declaration of strike nor directed in any manner against respondent employer, and
ordering the dismissal of the union office manifestly constituted grave abuse of discretion in fact and in
law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since respondent firm
conceded that "the demonstration is an inalienable right of the union guaranteed' by the Constitution" and
the union up to the day of the demonstration pleaded by cablegram to the company to excuse the first
shift and allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining agreement's "no-strike" clause
as would warrant the union leaders' dismissal, since as found by respondent court itself the mass
demonstration was not a declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to enable the workers to
exercise their constitutional rights of free expression, peaceable assembly and petition for redress of
grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for reconsideration for having been
filed two days late, after expiration of the reglementary five-day period fixed by its rules, due to the
negligence of petitioners' counsel and/or the union president should likewise be set aside as a manifest
act of grave abuse of discretion. Petitioners' petition for relief from the normal adverse consequences of
the late filing of their motion for reconsideration due to such negligence which was not acted upon by
respondent court should have been granted, considering the monstrous injustice that would otherwise
be caused the petitioners through their summary dismissal from employment, simply because they sought
in good faith to exercise basic human rights guaranteed them by the Constitution. It should be noted
further that no proof of actual loss from the one-day stoppage of work was shown by respondent
company, providing basis to the main opinion's premise that its insistence on dismissal of the union
leaders for having included the first shift workers in the mass demonstration against its wishes was but an
act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the constitutional injunction
to afford protection to labor be given true substance and meaning. No person may be deprived of such
basic rights without due process which is but "responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided ... Due process
is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as
freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of the respondent court and concur in the
judgment for petitioners as set forth in the main opinion.

Footnotes

U.S. Supreme Court

NAACP v. Patterson, 357 U.S. 449 (1958)

National Association for the Advancement of

Colored People v. Patterson

No. 91

Argued January 15-16, 1958

Decided June 30, 1958

357 U.S. 449

CERTIORARI TO THE SUPREME COURT OF ALABAMA

Syllabus

Petitioner is a nonprofit membership corporation organized under the laws of New York for the purpose of
advancing the welfare of Negroes. It operates through chartered affiliates which are independent
unincorporated associations, with membership therein equivalent to membership in petitioner. It had local
affiliates in Alabama, and opened an office of its own there without complying with an Alabama statute
which, with some exceptions, requires a foreign corporation to qualify before doing business in the State
by filing its corporate charter and designating a place of business and an agent to receive service of
process. Alleging that petitioner's activities were causing irreparable injury to the citizens of the State for
which criminal prosecution and civil actions at law afforded no adequate relief, the State brought an equity
suit in a state court to enjoin petitioner from conducting further activities in, and to oust it from, the State.
The court issued an ex parte order restraining petitioner, pendente lite, from engaging in further activities
in the State and from taking any steps to qualify to do business there. Petitioner moved to dissolve the
restraining order, and the court, on the State's motion, ordered the production of many of petitioner's
records, including its membership lists. After some delay, petitioner produced substantially all the data
called for except its membership lists. It was adjudged in contempt, and fined $100,000 for failure to
produce the lists. The State Supreme Court denied certiorari to review the contempt judgment, and this
Court granted certiorari.

Held:

1. Denial of relief by the State Supreme Court did not rest on an adequate state ground, and this Court
has jurisdiction to entertain petitioner's federal claims. Pp. 357 U. S. 454-458.

2. Petitioner has a right to assert on behalf of its members a claim that they are entitled under the Federal
Constitution to be protected from being compelled by the State to disclose their affiliation with the
Association. Pp. 357 U. S. 458-460.
Page 357 U. S. 450

3. Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's
members to pursue their lawful private interests privately and to associate freely with others in doing so
as to come within the protection of the Fourteenth Amendment. The State has failed to show a controlling
justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of
petitioner's membership lists is likely to have. Accordingly, the judgment of civil contempt and the fine
which resulted from petitioner's refusal to produce its membership lists must fall. Pp. 357 U. S. 460-466.

(a) Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect
of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment. Pp. 357 U. S. 460-461.

(b) In the circumstances of this case, compelled disclosure of petitioner's membership lists is likely to
constitute an effective restraint on its members' freedom of association. Pp. 357 U. S. 461-463.

(c) Whatever interest the State may have in obtaining the names of petitioner's ordinary members, it has
not been shown to be sufficient to overcome petitioner's constitutional objections to the production order.
Pp. 357 U. S. 463-466.

4. The question whether the state court's temporary restraining order preventing petitioner from soliciting
support in the State violates the Fourteenth Amendment is not properly before this Court, since the merits
of the controversy have not been passed on by the state courts. Pp. 357 U. S. 466-467.

265 Ala. 349, 91 So.2d 214, reversed, and cause remanded.

Page 357 U. S. 451

MR. JUSTICE HARLAN delivered the opinion of the Court.

We review from the standpoint of its validity under the Federal Constitution a judgment of civil contempt
entered against petitioner, the National Association for the Advancement of Colored People, in the courts
of Alabama. The question presented is whether Alabama, consistently with the Due Process Clause of the
Fourteenth Amendment, can compel petitioner to reveal to the State's Attorney General the names and
addresses of all its Alabama members and agents, without regard to their positions or functions in the
Association. The judgment of contempt was based upon petitioner's refusal to comply fully with a court
order requiring in part the production of membership lists. Petitioner's claim is that the order, in the
circumstances shown by this record, violated rights assured to petitioner and its members under the
Constitution .

Alabama has a statute, similar to those of many other States, which requires a foreign corporation, except
as exempted, to qualify before doing business by filing its corporate charter with the Secretary of State
and designating a place of business and an agent to receive service of process. The statute imposes a
fine on a corporation transacting intrastate business before qualifying, and provides for criminal
prosecution of officers of such a corporation. Ala.Code, 1940, Tit. 10, 192-198. The National
Association for the Advancement of Colored People is a nonprofit membership corporation organized
under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its
name, * and it operates

Page 357 U. S. 452

through chartered affiliates which are independent unincorporated associations, with membership therein
equivalent to membership in petitioner. The first Alabama affiliates were chartered in 1918. Since that
time, the aims of the Association have been advanced through activities of its affiliates, and, in 1951, the
Association itself opened a regional office in Alabama, at which it employed two supervisory persons and
one clerical worker. The Association has never complied with the qualification statute, from which it
considered itself exempt.

In 1956, the Attorney General of Alabama brought an equity suit in the State Circuit Court, Montgomery
County, to enjoin the Association from conducting further activities within, and to oust it from, the State.
Among other things, the bill in equity alleged that the Association had opened a regional office and had
organized various affiliates in Alabama; had recruited members and solicited contributions within the
State; had given financial support and furnished legal assistance to Negro students seeking admission to
the state university, and had supported a Negro boycott of the bus lines in Montgomery to compel the
seating of passengers without regard to race. The bill recited that the Association, by continuing to do
business in Alabama without complying with the qualification statute, was

". . . causing irreparable injury to the property and civil rights of the residents and citizens of the State of
Alabama for which criminal prosecution and civil actions at law afford no adequate relief. . . ."

On the day the complaint was filed, the Circuit Court issued ex parte an order restraining the Association,
pendente lite, from engaging in

Page 357 U. S. 453

further activities within the State and forbidding it to take any steps to qualify itself to do business therein.

Petitioner demurred to the allegations of the bill and moved to dissolve the restraining order. It contended
that its activities did not subject it to the qualification requirements of the statute and that, in any event,
what the State sought to accomplish by its suit would violate rights to freedom of speech and assembly
guaranteed under the Fourteenth Amendment to the Constitution of the United States. Before the date set
for a hearing on this motion, the State moved for the production of a large number of the Association's
records and papers, including bank statements, leases, deeds, and records containing the names and
addresses of all Alabama "members" and "agents" of the Association. It alleged that all such documents
were necessary for adequate preparation for the hearing, in view of petitioner's denial of the conduct of
intrastate business within the meaning of the qualification statute. Over petitioner's objections, the court
ordered the production of a substantial part of the requested records, including the membership lists, and
postponed the hearing on the restraining order to a date later than the time ordered for production.

Thereafter, petitioner filed its answer to the bill in equity. It admitted its Alabama activities substantially as
alleged in the complaint and that it had not qualified to do business in the State. Although still disclaiming
the statute's application to it, petitioner offered to qualify if the bar from qualification made part of the
restraining order were lifted, and it submitted with the answer an executed set of the forms required by the
statute. However petitioner did not comply with the production order, and for this failure, was adjudged in
civil contempt and fined $10,000. The contempt judgment provided that the fine would be subject to
reduction or remission if compliance

Page 357 U. S. 454

were forthcoming within five days, but otherwise would be increased to $100,000.

At the end of the five-day period, petitioner produced substantially all the data called for by the production
order except its membership lists, as to which it contended that Alabama could not constitutionally compel
disclosure, and moved to modify or vacate the contempt judgment, or stay its execution pending appellate
review. This motion was denied. While a similar stay application, which was later denied. was pending
before the Supreme Court of Alabama, the Circuit Court made a further order adjudging petitioner in
continuing contempt and increasing the fine already imposed to $100,000. Under Alabama law, see
Jacoby v. Goetter, Weil & Co., 74 Ala. 427, the effect of the contempt adjudication was to foreclose
petitioner from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps
to dissolve the temporary restraining order which had been issued ex parte, until it purged itself of
contempt. But cf. Harrison v. St. Louis & S.F. R. Co., 232 U. S. 318; Hovey v. Elliott, 167 U. S. 409.

The State Supreme Court thereafter twice dismissed petitions for certiorari to review this final contempt
judgment, the first time, 91 So.2d 221, for insufficiency of the petition's allegations and the second time on
procedural grounds. 265 Ala. 349, 91 So.2d 214. We granted certiorari because of the importance of the
constitutional questions presented. 353 U.S. 972.

We address ourselves first to respondent's contention that we lack jurisdiction because the denial of
certiorari by the Supreme Court of Alabama rests on an independent nonfederal ground, namely, that
petitioner, in applying for certiorari, had pursued the wrong appellate

Page 357 U. S. 455

remedy under state law. Respondent recognizes that our jurisdiction is not defeated if the nonfederal
ground relied on by the state court is "without any fair or substantial support," Ward v. Board of County
Commissioners, 253 U. S. 17, 253 U. S. 22. It thus becomes our duty to ascertain,

". . . in order that constitutional guaranties may appropriately be enforced, whether the asserted non-
federal ground independently and adequately supports the judgment."

Abie State Bank v. Bryan, 282 U. S. 765, 282 U. S. 773.

The Alabama Supreme Court held that it could not consider the constitutional issues underlying the
contempt judgment which related to the power of the State to order production of membership lists
because review by certiorari was limited to instances

". . . where the court lacked jurisdiction of the proceeding, or where, on the face of it, the order disobeyed
was void, or where procedural requirements with respect to citation for contempt and the like were not
observed, or where the fact of contempt is not sustained. . . ."

265 Ala. at 353, 91 So.2d at 217. The proper means for petitioner to obtain review of the judgment in light
of its constitutional claims, said the court, was by way of mandamus to quash the discovery order prior to
the contempt adjudication. Because of petitioner's failure to pursue this remedy, its challenge to the
contempt order was restricted to the above grounds. Apparently not deeming the constitutional objections
to draw into question whether, "on the face of it, the order disobeyed was void," the court found no
infirmity in the contempt judgment under this limited scope of review. At the same time, it did go on to
consider petitioner's constitutional challenge to the order to produce membership lists, but found it
untenable, since membership lists were not privileged against disclosure pursuant to reasonable state
demands and since the privilege against self-incrimination was not available to corporations.

Page 357 U. S. 456

We are unable to reconcile the procedural holding of the Alabama Supreme Court in the present case
with its past unambiguous holdings as to the scope of review available upon a writ of certiorari addressed
to a contempt judgment. As early as 1909, that court said in such a case, Ex parte Dickers, 162 Ala. 272,
at 276, 279-280, 50 So. 218, at 220, 221:
"Originally, on certiorari, only the question of jurisdiction was inquired into; but this limit has been
removed, and now the court 'examines the law questions involved in the case which may affect its merits.'
. . ."

"* * * *"

". . . [T]he judgment of this court is that the proper way to review the action of the court in cases of this
kind is by certiorari, and not by appeal."

"We think that certiorari is a better remedy than mandamus, because the office of a 'mandamus' is to
require the lower court or judge to act, and not 'to correct error or to reverse judicial action,' . . . whereas,
in a proceeding by certiorari, errors of law in the judicial action of the lower court may be inquired into and
corrected."

This statement was in full accord with the earlier case of Ex parte Boscowitz, 84 Ala. 463, 4 So. 279, and
the practice in the later Alabama cases, until we reach the present one, appears to have been entirely
consistent with this rule. See Ex parte Wheeler, 231 Ala. 356, 358, 165 So. 74, 75-76; Ex parte Blakey,
240 Ala. 517, 199 So. 857; Ex parte Sellers, 250 Ala. 87, 88, 33 So.2d 349, 350. For example, in Ex parte
Morris, 252 Ala. 551, 42 So.2d 17, decided as late as 1949, the petitioner had been held in contempt for
his refusal to obey a court order to produce names of members of the Ku Klux Klan. On writ of certiorari,
constitutional grounds were urged in part for

Page 357 U. S. 457

reversal of the contempt conviction. In denying the writ of certiorari, the Supreme Court concluded that
petitioner had been accorded due process, and, in explaining its denial, the court considered and rejected
various constitutional claims relating to the validity of the order. There was no intimation that the petitioner
had selected an inappropriate form of appellate review to obtain consideration of all questions of law
raised by a contempt judgment.

The Alabama cases do indicate, as was said in the opinion below, that an order requiring production of
evidence ". . . may be reviewed on petition for mandamus." 265 Ala. at 353, 91 So.2d at 217. (Italics
added.) See Ex parte Hart, 240 Ala. 642, 200 So. 783; cf. Ex parte Driver, 255 Ala. 118, 50 So.2d 413. But
we can discover nothing in the prior state cases which suggests that mandamus is the exclusive remedy
for reviewing court orders after disobedience of them has led to contempt judgments. Nor, so far as we
can find, do any of these prior decisions indicate that the validity of such orders can be drawn in question
by way of certiorari only in instances where a defendant had no opportunity to apply for mandamus.
Although the opinion below suggests no such distinction, the State now argues that this was, in fact, the
situation in all of the earlier certiorari cases, because there, the contempt adjudications, unlike here, had
followed almost immediately the disobedience to the court orders. Even if that is indeed the rationale of
the Alabama Supreme Court's present decision, such a local procedural rule, although it may now appear
in retrospect to form part of a consistent pattern of procedures to obtain appellate review, cannot avail the
State here, because petitioner could not fairly be deemed to have been apprised of its existence. Novelty
in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in
justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional

Page 357 U. S. 458

rights. Cf. Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673.

That there was justified reliance here is further indicated by what the Alabama Supreme Court said in
disposing of petitioner's motion for a stay of the first contempt judgment in this case. This motion, which
was filed prior to the final contempt judgment and which stressed constitutional issues, recited that
"[t]he only way in which the [Association] can seek a review of the validity of the order upon which the
adjudication of contempt is based [is] by filing a petition for Writ of Certiorari in this Court."

In denying the motion, 265 Ala. 356, 357, 91 So.2d 220, 221, the Supreme Court stated:

"It is the established rule of this Court that the proper method of reviewing a judgment for civil contempt of
the kind here involved is by a petition for common law writ of certiorari. . . ."

"But the petitioner here has not applied for writ of certiorari, and we do not feel that the petition [for a stay]
presently before us warrants our interference with the judgment of the Circuit Court of Montgomery
County here sought to be stayed."

We hold that this Court has jurisdiction to entertain petitioner's federal claims.

II

The Association both urges that it is constitutionally entitled to resist official inquiry into its membership
lists, and that it may assert, on behalf of its members, a right personal to them to be protected from
compelled disclosure by the State of their affiliation with the Association as revealed by the membership
lists. We think that petitioner argues more appropriately the rights of its members, and that its nexus with
them is sufficient to permit that it act as their representative before this

Page 357 U. S. 459

Court. In so concluding, we reject respondent's argument that the Association lacks standing to assert
here constitutional rights pertaining to the members, who are not, of course, parties to the litigation.

To limit the breadth of issues which must be dealt with in particular litigation, this Court has generally
insisted that parties rely only on constitutional rights which are personal to themselves. Tileston v. Ullman,
318 U. S. 44; Robertson and Kirkham, Jurisdiction of the Supreme Court (1951 ed.), 298. This rule is
related to the broader doctrine that constitutional adjudication should where possible be avoided. See
Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 346-348 (concurring opinion). The
principle is not disrespected where constitutional rights of persons who are not immediately before the
Court could not be effectively vindicated except through an appropriate representative before the Court.
See Barrows v. Jackson, 346 U. S. 249, 346 U. S. 255-259; Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U. S. 123, 341 U. S. 183-187 (concurring opinion).

If petitioner's rank-and-file members are constitutionally entitled to withhold their connection with the
Association despite the production order, it is manifest that this right is properly assertable by the
Association. To require that it be claimed by the members themselves would result in nullification of the
right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because
it and its members are, in every practical sense, identical. The Association, which provides in its
constitution that "[a]ny person who is in accordance with [its] principles and policies . . ." may become a
member, is but the medium through which its individual members seek to make more effective the
expression of their own views. The reasonable likelihood that the Association itself through diminished
financial support and membership may be adversely

Page 357 U. S. 460

affected if production is compelled is a further factor pointing towards our holding that petitioner has
standing to complain of the production order on behalf of its members. Cf. Pierce v. Society of Sisters,
268 U. S. 510, 268 U. S. 534-536.
III

We thus reach petitioner's claim that the production order in the state litigation trespasses upon
fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner
argues that, in view of the facts and circumstances shown in the record, the effect of compelled disclosure
of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful
association in support of their common beliefs. It contends that governmental action which, although not
directly suppressing association, nevertheless carries this consequence, can be justified only upon some
overriding valid interest of the State.

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably
enhanced by group association, as this Court has more than once recognized by remarking upon the
close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U. S. 353, 299 U.
S. 364; Thomas v. Collins, 323 U. S. 516, 323 U. S. 530. It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by
the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. See Gitlow
v. New York, 268 U. S. 652, 268 U. S. 666; Palko v. Connecticut, 302 U. S. 319, 302 U. S. 324; Cantwell
v. Connecticut, 310 U. S. 296, 310 U. S. 303; Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 321. Of
course, it is immaterial whether the beliefs sought to be advanced by association pertain to political,
economic, religious or cultural matters, and state action which may have the

Page 357 U. S. 461

effect of curtailing the freedom to associate is subject to the closest scrutiny.

The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under
review, has taken no direct action, cf. De Jonge v. Oregon, supra; Near v. Minnesota, 283 U. S. 697, to
restrict the right of petitioner's members to associate freely, does not end inquiry into the effect of the
production order. See American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 402. In the
domain of these indispensable liberties, whether of speech, press, or association, the decisions of this
Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied
forms of governmental action. Thus, in Douds, the Court stressed that the legislation there challenged,
which, on its face, sought to regulate labor unions and to secure stability in interstate commerce, would
have the practical effect "of discouraging" the exercise of constitutionally protected political rights, 339
U.S. at 339 U. S. 393, and it upheld the statute only after concluding that the reasons advanced for its
enactment were constitutionally sufficient to justify its possible deterrent effect upon such freedoms.
Similar recognition of possible unconstitutional intimidation of the free exercise of the right to advocate
underlay this Court's narrow construction of the authority of a congressional committee investigating
lobbying and of an Act regulating lobbying, although in neither case was there an effort to suppress
speech. United States v. Rumely, 345 U. S. 41, 345 U. S. 46-47; United States v. Harriss, 347 U. S. 612,
347 U. S. 625-626. The governmental action challenged may appear to be totally unrelated to protected
liberties. Statutes imposing taxes upon, rather than prohibiting particular activity have been struck down
when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured
under the Fourteenth Amendment. Grosjean v. American

Page 357 U. S. 462

Press Co., 297 U. S. 233; Murdock v. Pennsylvania, 319 U. S. 105.

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy
may constitute as effective a restraint on freedom of association as the forms of governmental action in
the cases above were thought likely to produce upon the particular constitutional rights there involved.
This Court has recognized the vital relationship between freedom to associate and privacy in one's
associations. When referring to the varied forms of governmental action which might interfere with
freedom of assembly, it said in American Communications Assn. v. Douds, supra, at 339 U. S. 402:

"A requirement that adherents of particular religious faiths or political parties wear identifying armbands,
for example, is obviously of this nature."

Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the

same order. Inviolability of privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United
States v. Rumely, supra, at 345 U. S. 56-58 (concurring opinion).

We think that the production order, in the respects here drawn in question, must be regarded as entailing
the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom
of association. Petitioner has made an uncontroverted showing that, on past occasions, revelation of the
identity of its rank-and-file members has exposed these members to economic reprisal, loss of
employment, threat of physical coercion, and other manifestations of public hostility. Under these
circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is
likely to affect adversely the ability of petitioner and

Page 357 U. S. 463

its members to pursue their collective effort to foster beliefs which they admittedly have the right to
advocate, in that it may induce members to withdraw from the Association and dissuade others from
joining it because of fear of exposure of their beliefs shown through their associations and of the
consequences of this exposure.

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory
disclosure of names of petitioner's members may have upon participation by Alabama citizens in
petitioner's activities follows not from state action, but from private community pressures. The crucial
factor is the interplay of governmental and private action, for it is only after the initial exertion of state
power represented by the production order that private action takes hold.

We turn to the final question -- whether Alabama has demonstrated an interest in obtaining the
disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have
concluded these disclosures may well have on the free exercise by petitioner's members of their
constitutionally protected right of association. See American Communications Assn. v. Douds, supra, at
339 U. S. 400; Schneider v. State, 308 U. S. 147, 308 U. S. 161. Such a ". . . subordinating interest of the
State must be compelling," Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 265 (concurring opinion).
It is not of moment that the State has here acted solely through its judicial branch, for whether legislative
or judicial, it is still the application of state power which we are asked to scrutinize.

It is important to bear in mind that petitioner asserts no right to absolute immunity from state investigation,
and no right to disregard Alabama's laws. As shown by its substantial compliance with the production
order, petitioner does not deny Alabama's right to obtain from it such information as the State desires
concerning the purposes

Page 357 U. S. 464

of the Association and its activities within the State. Petitioner has not objected to divulging the identity of
its members who are employed by or hold official positions with it. It has urged the rights solely of its
ordinary rank-and-file members. This is therefore not analogous to a case involving the interest of a State
in protecting its citizens in their dealings with paid solicitors or agents of foreign corporations by requiring
identification. See Cantwell v. Connecticut, supra, at 310 U. S. 306; Thomas v. Collins, supra, at 323 U. S.
538.
Whether there was "justification" in this instance turns solely on the substantiality of Alabama's interest in
obtaining the membership lists. During the course of a hearing before the Alabama Circuit Court on a
motion of petitioner to set aside the production order, the State Attorney General presented at length,
under examination by petitioner, the State's reason for requesting the membership lists. The exclusive
purpose was to determine whether petitioner was conducting intrastate business in violation of the
Alabama foreign corporation registration statute, and the membership lists were expected to help resolve
this question. The issues in the litigation commenced by Alabama by its bill in equity were whether the
character of petitioner and its activities in Alabama had been such as to make petitioner subject to the
registration statute, and whether the extent of petitioner's activities without qualifying suggested its
permanent ouster from the State. Without intimating the slightest view upon the merits of these issues, we
are unable to perceive that the disclosure of the names of petitioner's rank-and-file members has a
substantial bearing on either of them. As matters stand in the state court, petitioner (1) has admitted its
presence and conduct of activities in Alabama since 1918; (2) has offered to comply in all respects with
the state qualification statute, although preserving

Page 357 U. S. 465

its contention that the statute does not apply to it, and (3) has apparently complied satisfactorily with the
production order, except for the membership lists, by furnishing the Attorney General with varied business
records, its charter and statement of purposes, the names of all of its directors and officers, and with the
total number of its Alabama members and the amount of their dues. These last items would not, on this
record, appear subject to constitutional challenge, and have been furnished, but whatever interest the
State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome
petitioner's constitutional objections to the production order.

From what has already been said, we think it apparent that Bryant v. Zimmerman, 278 U. S. 63, cannot be
relied on in support of the State's position, for that case involved markedly different considerations in
terms of the interest of the State in obtaining disclosure. There, this Court upheld, as applied to a member
of a local chapter of the Ku Klux Klan, a New York statute requiring any unincorporated association which
demanded an oath as a condition to membership to file with state officials copies of its

". . . constitution, by laws, rules, regulations and oath of membership, together with a roster of its
membership and a list of its officers for the current year."

N.Y.Laws 1923, c. 664, 53, 56. In its opinion, the Court took care to emphasize the nature of the
organization which New York sought to regulate. The decision was based on the particular character of
the Klan's activities, involving acts of unlawful intimidation and violence, which the Court assumed was
before the state legislature when it enacted the statute, and of which the Court itself took judicial notice.
Furthermore, the situation before us is significantly different from that in Bryant, because the organization
there had made no effort to comply with

Page 357 U. S. 466

any of the requirements of New York's statute, but rather had refused to furnish the State with any
information as to its local activities.

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf
of its members is here so related to the right of the members to pursue their lawful private interests
privately and to associate freely with others in so doing as to come within the protection of the Fourteenth
Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the
deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is
likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from
petitioner's refusal to comply with the production order in this respect must fall.
IV

Petitioner joins with its attack upon the production order a challenge to the constitutionality of the State's
ex parte temporary restraining order preventing it from soliciting support in Alabama, and it asserts that
the Fourteenth Amendment precludes such state action. But, as noted above, petitioner has never
received a hearing on the merits of the ouster suit, and we do not consider these questions properly here.
The Supreme Court of Alabama noted in its denial of the petition for certiorari that such petition raised
solely a question pertinent to the contempt adjudication.

"The ultimate aim and purpose of the litigation is to determine the right of the state to enjoin petitioners
from doing business in Alabama. That question, however, is not before us in this proceeding."

265 Ala. at 352, 91 So.2d at 216. The proper method for raising questions in the state appellate courts
pertinent to the underlying suit for an injunction appears

Page 357 U. S. 467

to be by appeal, after a hearing on the merits and final judgment by the lower state court. Only from the
disposition of such an appeal can review be sought here.

For the reasons stated, the judgment of the Supreme Court of Alabama must be reversed, and the case
remanded for proceedings not inconsistent with this opinion.

Reversed.

* The Certificate of Incorporation of the Association provides that its

". . . principal objects . . . are voluntarily to promote equality of rights and eradicate caste or race prejudice
among the citizens of the United States; to advance the interest of colored citizens; to secure for them
impartial suffrage, and to increase their opportunities for securing justice in the courts, education for their
children, employment according to their ability, and complete equality before the law."

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.C. 1928 December 19, 1980

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLION (IBP
Administrative Case No. MDD-1), petitioner,
FERNANDO, C.J.:

The full and plenary discretion in the exercise of its competence to reinstate a disbarred member of the
bar admits of no doubt. All the relevant factors bearing on the specific case, public interest, the integrity of
the profession and the welfare of the recreant who had purged himself of his guilt are given their due
weight. Respondent Marcial A. Edillon was disbarred on August 3, 1978, 1 the vote being unanimous with
the late.

Chief Justice Castro ponente. From June 5, 1979, he had repeatedly pleaded that he be reinstated. The
minute resolution dated October 23, 1980, granted such prayer. It was there made clear that it "is without
prejudice to issuing an extended opinion." 2

Before doing so, a recital of the background facts that led to the disbarment of respondent may not be
amiss. As set forth in the resolution penned by the late Chief Justice Castro: "On November 29. 1975, the
Integrated Bar of the Philippines (IBP for short) Board of Governors, unanimously adopted Resolution No.
75-65 in Administrative case No. MDD-1 (In the Matter of the Membership Dues Delinquency of Atty.
Marcial A. Edillon) recommending to the Court the removal of the name of the respondent from its Roll of
Attorneys for 'stubborn refusal to pay his membership dues' to the IBP since the latter's constitution
notwithstanding due notice. On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,. Pursuant to paragraph 2,
Section 24, Article III of the By-Laws of the IBP, which. reads: ... Should the delinquency further continue
until the following June 29, the Board shall promptly inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's name from the Roll of Attorneys. Notice of the
action taken should be submit by registered mail to the member and to the Secretary of the Chapter
concerned.' On January 27, 1976, the Court required the respondent to comment on the resolution and
letter adverted to above he submitted his comment on February 23, 1976, reiterating his refusal to pay the
membership fees due from him. On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: On March 24, 1976, they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were required to
submit memoranda in amplification of their oral arguments. The matter was thenceforth submitted for
resolution." 3

Reference was then made to the authority of the IBP Board of Governors to recommend to the Supreme
Court the removal of a delinquent member's name from the Roll of Attorneys as found in Rules of Court:
'Effect of non-payment of dues. Subject to the provisions of Section 12 of this Rule, default in the
payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar,
and default in such payment for one year shall be a ground for the removal of the name of the delinquent
member from the Roll of Attorneys. 4

The submission of respondent Edillion as summarized in the aforesaid resolution "is that the above
provisions constitute an invasion of his constitutional rights in the sense that he is being compelled, as a
pre-condition to maintaining his status as a lawyer in good standing, to be a member of the IBP and to
pay the corresponding dues, and that as a consequence of this compelled financial support of the said
organization to which he is admittedly personally antagonistic, he is being deprived of the rights to liberty
and property guaranteed to him by the Constitution. Hence, the respondent concludes, the above
provisions of the Court Rule and of the IBP By-Laws are void and of no legal force and effect. 5 It was
pointed out in the resolution that such issues was raised on a previous case before the Court, entitled
'Administrative Case No. 526, In the Matter of the Petition for the Integration of the Bar of the Philippines,
Roman Ozaeta, et al., Petitioners.' The Court exhaustively considered all these matters in that case in its
Resolution ordaining the integration of the Bar of the Philippines, promulgated on January 9, 1973. 6 The
unanimous conclusion reached by the Court was that the integration of the Philippine Bar raises no
constitutional question and is therefore legally unobjectionable, "and, within the context of contemporary
conditions in the Philippine, has become an imperative means to raise the standards of the legal
profession, improve the administration of justice, and enable the Bar to discharge its public responsibility
fully and effectively." 7

As mentioned at the outset, the vote was unanimous. From the time the decision was rendered, there
were various pleadings filed by respondent for reinstatement starting with a motion for reconsideration
dated August 19, 1978. Characterized as it was by persistence in his adamantine refusal to admit the full
competence of the Court on the matter, it was not unexpected that it would be denied. So it turned out. 8 It
was the consensus that he continued to be oblivious to certain balic juridical concepts, the appreciation of
which does not even require great depth of intellect. Since respondent could not be said to be that
deficient in legal knowledge and since his pleadings in other cases coming before this Tribunal were quite
literate, even if rather generously sprinkled with invective for which he had been duly taken to task, there
was the impression that his recalcitrance arose from and sheer obstinacy. Necessary, the extreme penalty
of disbarment visited on him was more than justified.

Since then, however, there were other communications to this Court where a different attitude on his part
was discernible. 9 The tone of defiance was gone and circumstances of a mitigating character invoked
the state of his health and his advanced age. He likewise spoke of the welfare of former clients who still
rely on him for counsel, their confidence apparently undiminished. For he had in his career been a valiant,
if at times unreasonable, defender of the causes entrusted to him.

This Court, in the light of the above, felt that reinstatement could be ordered and so it did in the resolution
of October 23, 1980. It made certain that there was full acceptance on his part of the competence of this
Tribunal in the exercise of its plenary power to regulate the legal profession and can integrate the bar and
that the dues were duly paid. Moreover, the fact that more than two years had elapsed during which he
war. barred from exercising his profession was likewise taken into account. It may likewise be said that as
in the case of the inherent power to punish for contempt and paraphrasing the dictum of Justice Malcolm
in Villavicencio v. Lukban, 10 the power to discipline, especially if amounting to disbarment, should be
exercised on the preservative and not on the vindictive principle. 11

One last word. It has been pertinently observed that there is no irretrievable finality as far as admission to
the bar is concerned. So it is likewise as to loss of membership. What must ever be borne in mind is that
membership in the bar, to follow Cardozo, is a privilege burdened with conditions. Failure to abide by any
of them entails the loss of such privilege if the gravity thereof warrant such drastic move. Thereafter a
sufficient time having elapsed and after actuations evidencing that there was due contrition on the part of
the transgressor, he may once again be considered for the restoration of such a privilege. Hence, our
resolution of October 23, 1980.

The Court restores to membership to the bar Marcial A. Edillon.

Teehankee, Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.

Aquino, J., concurs in the result.

Footnotes

1 In re Atty, Marcial A. Edillon, AC-1928, August 3, 1978, 84 SCRA 554.

2 The minute resolution reads in full:- "Acting on the petition of Mr. Marcial Edillon for
reinstatement to the Roll of Attorneys and it appearing that he had fully paid his
delinquant membership fees due the Integrated Bar of the Philippines and submitted to
 the IBP Board of Governors a verified application for reinstatement together with an
undertaking to abide by all By-laws and resolutions by said Board in the event of
reinstatement, the Court Resolved to GRANT the petition of Mr. Marcial A. Edillon for as
member of the Philippine Bar. He is hereby allowed to take anew the lawyer's oath and
sign the Roll of Attorneys after payment of the required fees. This resolution is without
prejudice to is an extended opinion.

3 84 SCRA 559.

4 Section 10, Rule of Court 139-A.

5 84 SCRA 561.

6 Ibid, 561. The reference is to Administrative Case No. 526. In ,he Matter of the Petition
for the Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22.

7 In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22, 33.

8 The resolution denying the motion was issued on November 13, 1978.

9 Letters dated June 5, 1979, August 7, 1979, November 13, 1979, April 12, 1980.

10 39 Phil. 778 (1919).

11 People v. Estenzo. L-24522, May 29, 1975, 64 SCRA 211; Fontelera v. Amores, L-
41361. March 8, 1976, 70 SCRA 37; Royeca v., Animas, L-39584, May 3, 1976, 71 SCRA
1; Blancaflor v. Laya, L-31399, March 17, 1978, 82 SCRA 148; Calo v. Tapucar, L-47244,
January 16, 1979, 88 SCRA 78.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406,
415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030,
1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155,
161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-
839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532,
1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609,
1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742,
1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804,
1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892,
1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-
852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92,
94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is submitted
that in the absence of any showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
 SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use a rd
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and
its object is to compel the performance of a public duty, they need not show any specific interest for their
petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought
to be enforced. If the general rule in America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason for the rule, because, if under
the particular circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is
a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed
to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same,
considering that the Solicitor General, the government officer generally empowered to represent the
people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for
the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long
line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with
the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts
and resolutions of a public nature of the, Congress of the Philippines; [2] all executive
and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to be so published;
[4] such documents or classes of documents as may be required so to be published by
law; and [5] such documents or classes of documents as the President of the Philippines
shall determine from time to time to have general applicability and legal effect, or which
he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various
laws which are to regulate their actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the
height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had
no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have bestowed upon the President a power heretofore
enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative
recordsno such publicity accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official
Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That
duty must be enforced if the Constitutional right of the people to be informed on matters of public concern
is to be given substance and reality. The law itself makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in
Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of
the law of the land, the requirement of due process and the Rule of Law demand that the
Official Gazette as the official government repository promulgate and publish the texts of
all such decrees, orders and instructions so that the people may know where to obtain
their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the question
as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented
prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken
the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects-with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters
nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino,
ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make
the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication, even though some criminal laws provide
that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat,
is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions,
a law, regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify
the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat,
is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, 1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions,
a law, regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify
the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.
DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Non vs. Dames II, 185 SCRA 523, G.R. No. 89317, May 20, 1990

G.R. No. 89317 May 20, 1990

ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES
BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA,
JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners,
vs.
HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38,
Daet, Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO
ADEVA and by the chairman of the Board of Trustees, JUSTO LUKBAN, respondents.
Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners
Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents.

CORTES, J.:
Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v.
Philippine School of Business Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7, to the
effect that a college student, once admitted by the school, is considered enrolled only for one semester
and, hence, may be refused readmission after the semester is over, as the contract between the student
and the school is deemed terminated.
Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not
allowed to re-enroll by the school for the academic year 1988-1989 for leading or participating in student
mass actions against the school in the preceding semester. The subject of the protests is not, however,
made clear in the pleadings.
Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but
the trial court dismissed the petition in an order dated August 8, 1988; the dispositive portion of which
reads:
WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on the
point at issue in this case but the authority of the school regarding admission of students, save as a
matter of compassionate equity when any of the petitioners would, at the least, qualify for re-
enrollment, this petition is hereby DISMISSED.
SO ORDERED. [Rollo, p. 12-A.]
A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this
wise:
Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there must
be a better way of treating students and teachers than the manner ruled (not suggested) by the Supreme
Court, the Termination of Contract at the end of the semester, that is.
But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz, et
al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No. 76353,
May 2, 1988; that of the termination at the end of the semester, reason for the critical comments of
Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling.
Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny
respondent's affirmative defenses that "they were given all the chances to air their grievances on
February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented by
Atty. Jose L. Lapak" and that on February 22, 1988, the date of the resumption of classes at Mabini
College, petitioners continued their rally picketing, even though without any renewal permit, physically
coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving a
great majority of students of their right to be present in their classes.
Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for re-
enrollment with respondent college when they adopted, signed, and used its enrollment form for the first
semester of school year 1988-89. Said form specifically states that:
The Mabini College reserves the right to deny admission of students whose scholarship and attendance
are unsatisfactory and to require withdrawal of students whose conduct discredits the institution and/or
whose activities unduly disrupts or interfere with the efficient operation of the college. Students, therefore,
are required to behave in accord with the Mabini College code of conduct and discipline.
In addition, for the same semester, petitioners duly signed pledges which among others uniformly reads:
In consideration of my admission to the Mabini College and of my privileges as student of this institution, I
hereby pledge/ promise under oath to abide and comply with all the rules and regulations laid down by
competent authorities in the College Department or School in which I am enrolled. Specifically:
xxx xxx xxx
3. I will respect my Alma Matter the Mabini College, which I represent and see to it that I conduct myself in
such a manner that the college wig not be put to a bad light;
xxx xxx xxx
9. I will not release false or unauthorized announcement which tend to cause confusion or disrupt the
normal appreciation of the college.
Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3, Rule
65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled, respondent
Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic
freedom enjoyed by the school in accordance with the Supreme Court rulings in the cases of Garcia vs.
Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975) and Tangonon vs. Pano, et al. (L-
45157, June 27, 1985).
WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for
reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED.
SO ORDERED. [Rollo pp. 15-16.]
Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction.
The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to
refer the case to the Court of Appeals for proper determination and disposition. The Court of Appeals
ordered respondents to comment on the petition and set the application for issuance of a writ of
preliminary mandatory injunction for hearing. After considering the comment and hearing the injunction
application, the Court of Appeals resolved on May 22, 1989 to certify the case back to the Supreme Court
considering that only pure questions of law were raised.
The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc
on August 21, 1989 considering that the issues raised are jurisdictional. On September 14, 1989, the
Court en banc accepted the case and required respondents to comment.
Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they
filed a pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to
Counter-Comment To this petitioners filed a "Rejoinder to Reply."
The issues having been joined, the case was deemed submitted.
At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz:
It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It
is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student
registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in
the Manual, that the "written contracts" required for college teachers are for "one semester." It is thus
evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either
with the students or with the intervening teachers. Such being the case, the charge of denial of due
process is untenable. It is a time-honored principle that contracts are respected as the law between the
contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987,
citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100 SCRA 197). The
contract having been terminated, there is no more contract to speak of. The school cannot be compelled
to enter into another contract with said students and teachers. "The courts, be they the original trial court
or the appellate court, have no power to make contracts for the parties.' (Henson vs. Intermediate
Appellate Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.]
In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred
from re-enrolling after they led mass assemblies and put up barricades, but it added that "in the light of
compassionate equity, students who were, in view of the absence of academic deficiencies, scheduled to
graduate during the school year when this petition was filed, should be allowed to re-enroll and to
graduate in due time." [At 161 SCRA 22.] Mr. Justice Sarmiento dissented from the majority opinion.
A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for
reconsideration. The Court en banc, to which the case had been transferred, denied the motion for
reconsideration in a Resolution dated September 29, 1989, but added as an obiter dictum:
In conclusion, We wish to reiterate that while We value the right of students to complete their education in
the school or university of their choice, and while We fully respect their right to resort to rallies and
demonstrations for the redress of their grievances and as part of their freedom of speech and their right to
assemble, still such rallies, demonstrations, and assemblies must always be conducted peacefully, and
without resort to intimidation, coercion, or violence. Academic freedom in all its forms, demands the full
display of discipline. To hold otherwise would be to subvert freedom into degenerate license.
The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the
decision provoked several dissents on that issue. Although seven (7) members of the Court * disagreed
with the Second Division's dismissal of the students petition, a definitive ruling on the issue could not
have been made because no timely motion for reconsideration was filed by the students. (As stated
above, the motion for reconsideration was filed by the dismissed teachers.)
Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to
bar the readmission or re-enrollment of students on the ground of termination of contract, shall be made
in this case where the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5].
Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school
refusing readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to
readmit or re-enroll petitioners was decided upon and implemented by school authorities as a reaction to
student mass actions directed against the school. Petitioners are students of respondent school who,
after leading and participating in student protests, were denied readmission or re-enrollment for the next
semester. This is a case that focuses on the right to speech and assembly as exercised by students vis-
a-vis the right of school officials to discipline them.
Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8,
1988; Rollo, pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the
school's power to discipline them, to wit:
Students should not be denied their constitutional and statutory right to education, and there is such
denial when students are expelled or barred from enrollment for the exercise of their right to free speech
and peaceable assembly and/or subjected to disciplinary action without abiding with the requirements of
due process. Also, it is understandable for student leaders to let loose extremely critical and, at times,
vitriolic language against school authorities during a student rally.
But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p. 13.]
1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate.
Central to the democratic tradition which we cherish is the recognition and protection of the rights of free
speech and assembly. Thus, our Constitution provides:
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. [Art. III.]
This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973
Constitution, as amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the
Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13].
Thus, as early as 1907, the Court in People v. Apurado, 7 Phil. 422, upheld the right to speech and
assembly to overturn a conviction for sedition. It said:
Section 5 of the Act No. 292 is as follows:
All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any
of the following objects are guilty of sedition:
xxx xxx xxx
2. To prevent the Insular Government, or any provincial or municipal government or any public official,
from freely exercising its or his duties or the due execution of any judicial or administrative order.
But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people
peaceably to assemble and petition the Government for redress of grievances" guaranteed by the
express provisions of section 5 of "the Philippine Bill."
xxx xxx xxx
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 a 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, but the utmost discretion must be exercise in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. [At pp.
424, 426.]
That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is
similarly available to students is well-settled in our jurisdiction. In the leading case of Malabanan v.
Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice
Fernando in an en banc decision, declared:
xxx xxx xxx
4. 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. [At pp. 367-368.]
The facts in Malabanan are only too familiar in the genre of cases involving student mass actions:
. . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta] University.
They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to
12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they held a general
assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated in such permit, not
in the basketball court as therein stated but at the respond floor lobby. At such gathering they manifested
in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal
Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life
Science building and continued their rally. It was outside the area covered by their permit. They continued
their demonstration, giving utterance to language severely critical of the University authorities and using
megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-
academic employees, within hearing distance, stopped their work because of the noise created. They
were asked to explain on the same day why they should not be held liable for holding an illegal assembly.
Then on September 9, 1982, they were informed through a memorandum that they were under preventive
suspension for their failure to explain the holding of an illegal assembly in front of the Life Science
Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal
in a petition for mandamus with damages against private respondents and before the Ministry of
Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National
Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for
Private Schools more specifically their holding of an illegal assembly which was characterized by the
violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty
was suspension for one academic year. . . . [At pp. 363-364.]
The Court found the penalty imposed on the students too severe and reduced it to a one-week
suspension.
The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the
Court.
In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the
Court reiterated that the exercise of the freedom of assembly could not be a basis for barring students
from enrolling. It enjoined the school and its officials from acts of surveillance, blacklisting, suspension
and refusal to re-enroll. But the Court allowed the non-enrollment of students who clearly incurred marked
academic deficiency, with the following caveat:
xxx xxx xxx
4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set academic
standards to determine under what circumstances failing grades suffice for the expulsion of students.
Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to
discriminate against those students who exercise their constitutional rights to peaceable assembly and
free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right
to the equal protection clause being disregarded. [At p. 711.]
In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a
case arising from almost the same facts as those in Malabanan, the Court rejected "the infliction of the
highly- disproportionate penalty of denial of enrollment and the consequent failure of senior students to
graduate, if in the exercise of the cognate rights of free speech and peaceable assembly, improper
conduct could be attributed to them. [At p. 98].
In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was
directed to allow the petitioning students to re-enroll or otherwise continue with their respective courses,
without prejudice to any disciplinary proceedings that may be conducted in connection with their
participation in the protests that led to the stoppage of classes.
2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School.
While the highest regard must be afforded the exercise of the rights to free speech and assembly, this
should not be taken to mean that school authorities are virtually powerless to discipline students. This
was made clear by the Court in Malabanan, when it echoed Tinker v. Des Moines Community School
District, 393 US 503, 514: "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."
Thus, in Malabanan, the Court said:
xxx xxx xxx
8. It does not follow, however, that petitioners can be totally absolved for the events that transpired.
Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that
specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of the
University. Moreover, it was continued longer than the period allowed. According to the decision of
respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m." Private
respondents could thus, take disciplinary action. . . . [ At pp. 370-371].
But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due
process. Thus:
. . . There are withal minimum standards which must be met to satisfy the demands of procedural due
process; and these are, that (1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the charges against them, with the
assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall
have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school authorities to hear and decide the case.
[At pp. 706-707].
Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan,
"[i]f the concept of proportionality between the offense committed and sanction imposed is not followed,
an element of arbitrariness intrudes." [At p. 371].
3. Circumventing Established Doctrine.
Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only
because of political events that unfurled but also because of the constantly raging controversy over
increases in tuition fees. But the over-eager hands of some school authorities were not effectively tied
down by the ruling in Malabanan. Instead of suspending or expelling student leaders who fell into disfavor
with school authorities, a new variation of the same stratagem was adopted by the latter: refusing the
students readmission or re-enrollment on grounds not related to, their alleged misconduct of "illegal
assembly" in leading or participating in student mass actions directed against the school. Thus, the spate
of expulsions or exclusions due to "academic deficiency."
4. The Nature of the Contract Between a School and its Student.
The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be
repeatedly emphasized that the contract between the school and the student is not an ordinary contract. It
is imbued with public interest, considering the high priority given by the Constitution to education and the
grant to the State of supervisory and regulatory powers over all educational institutions [See Art. XIV,
secs. 1-2, 4(1)].
Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for
Private Schools, which provides that "[w]hen a student registers in a school, it is understood that he is
enrolling . . . for the entire semester for collegiate courses," which the Court in Alcuaz construed as
authority for schools to refuse enrollment to a student on the ground that his contract, which has a term of
one semester, has already expired.
The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely
clarifies that a college student enrolls for the entire semester. It serves to protect schools wherein tuition
fees are collected and paid on an installment basis, i.e. collection and payment of the downpayment upon
enrollment and the balance before examinations. Thus, even if a student does not complete the semester
for which he was enrolled, but has stayed on for more than two weeks, he may be required to pay his
tuition fees for the whole semester before he is given his credentials for transfer. This is the import of
Paragraph 137, subsumed under Section VII on Tuition and Other Fees, which in its totality provides:
137. When a student registers in a school, it is understood that he is enrolling for the entire school year
for elementary and secondary courses, and for the entire semester for collegiate courses. A student who
transfers or otherwise withdraws, in writing, within two weeks after the beginning of classes and who has
already paid the pertinent tuition and other school fees in full or for any length of time longer than one
month may be charged ten per cent of the total amount due for the term if he withdraws within the first
week of classes, or twenty per cent if within the second week of classes, regardless of whether or not he
has actually attended classes. The student may be charged all the school fees in full if he withdraws
anytime after the second week of classes. However, if the transfer or withdrawal is due to a justifiable
reason, the student shall be charged the pertinent fees only up to and including the last month of
attendance.
Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only
one semester, and that after that semester is over his re-enrollment is dependent solely on the sound
discretion of the school. On the contrary, the Manual recognizes the right of the student to be enrolled in
his course for the entire period he is expected to complete it. Thus, Paragraph 107 states:
Every student has the right to enrol in any school, college or university upon meeting its specific
requirement and reasonable regulation: Provided, that except in the case of academic delinquency and
violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the entire
period he is expected to complete his course without prejudice to his right to transfer.
This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of
1982." Section 9 of this act provides:
Sec. 9. Rights of Students in School. In addition to other rights, and subject to the limitations
prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights:
xxx xxx xxx
2. The right to freely choose their field of study subject to existing curricula and to continue their course
therein up to graduation, except in cases of academic deficiency, or violation of disciplinary regulations.
xxx xxx xxx
5. Academic Freedom Not a Ground for Denying Students' Rights.
Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to
admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the
school" [Rollo, p. 16]. To support this conclusion, he cited the cases of Garcia v. The Faculty Admission
Committee, Loyola School of Theology, G.R. No. L-40779, November 28, 1975, 68 SCRA 277, and
Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, where the Court emphasized the
institutions' discretion on the admission and enrollment of students as a major component of the
academic freedom guaranteed to institutions of higher learning.
These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has
a clear legal right to compel a seminary for the priesthood to admit her for theological studies leading to a
degree. In Tangonan, the issue was whether a nursing student, who was admitted on probation and who
has failed in her nursing subjects, may compel her school to readmit her for enrollment.
Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an
institution of higher learning to set academic standards cannot be utilized to discriminate against students
who exercise their constitutional rights to speech and assembly, for otherwise there win be a violation of
their right to equal protection [At p. 711]
6. Capitol Medical Center and Licup.
In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol
Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of
San Carlos, G.R. No. 85839, October 19, 1989, both decided by the First Division of the Court.
We find the issues raised and resolved in these two decisions dissimilar from the issues in the present
case.
In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the
school because of problems emanating from a labor dispute between the school and its faculty. The Court
ruled that the students had no clear legal right to demand the reopening of the school.
On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural
due process before disciplinary action was taken against them. Thus, the Court stated:
The Court finds no cogent basis for the protestations of petitioners that they were deprived of due process
of law and that the investigation conducted was far from impartial and fair. On the contrary, what appear
from the record is that the charges against petitioners were adequately established in an appropriate
investigation. The imputation of bias and partiality is not supported by the record. . . .
Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to
wit:
While it is true that the students are entitled to the right to pursue their education, the USC as an
educational institution is also entitled to pursue its academic freedom and in the process has the
concommitant right to see to it that this freedom is not jeopardized.
True, an institution of learning has a contractual obligation to afford its students a fair opportunity to
complete the course they seek to pursue. However, when a student commits a serious breach of
discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the
court should not review the discretion of university authorities. (Emphasis supplied.)
7. The Instant Case.
To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their
answer filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing
grades, to wit:
a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form 137
which is a pre-requisite to his re- enrollment and to his continuing as a student of Mabini;
b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4) subjects
as well as no grades in two (2) subjects;
c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades;
d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already
enrolled at Ago Foundation;
e) Joselito Villalon has incomplete grades in nine (9) subjects;
f) Luis Santos has failed in one (1) subject;
g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1)
subject;
h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more objects
and has no grade in one (1) subject. [Rollo, p. 79.]
Petitioners have not denied this, but have countered this allegation as follows:
xxx xxx xxx
(11) Petitioners were and are prepared to show, among others, that:
a) Three of the 13 of them were graduating. (Admitted in the Answer.)
b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only 8 of
the 13 as with deficiencies.)
c) Their breach of discipline, if any, was not serious.
d) The improper conduct attributed to them was during the exercise of the cognate rights of free speech
and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as shown
even in the Answer.)
e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted in
the Answer; even Alcuaz required due process.)
f) Respondents admit students with worse deficiencies a clear case of discrimination against
petitioners for their role in the student rally. (An equal protection question.)
g) Respondent school is their choice institution near their places of residence which they can afford to pay
for tertiary education, of which they have already lost one-and-a-half school-years in itself punishment
enough. [Rollo, p. 86].
Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes
Banares, Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without just
cause and, hence, should be allowed to re-enroll.
On the other hand, it does not appear that the petitioners were afforded due process, in the manner
expressed in Guzman, before they were refused re-enrollment. In fact, it would appear from the pleadings
that the decision to refuse them re-enrollment because of failing grades was a mere afterthought. It is not
denied that what incurred the ire of the school authorities was the student mass actions conducted in
February 1988 and which were led and/or participated in by petitioners. Certainly, excluding students
because of failing grades when the cause for the action taken against them undeniably related to possible
breaches of discipline not only is a denial of due process but also constitutes a violation of the basic
tenets of fair play.
Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex
Magana, Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered
marked academic deficiency within the context of the Court's decision in Villar.
Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George
(Jorge) Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures
were incurred in only one semester or through the course of several semesters of study in the school.
Neither are the academic standards of respondent school, from which we can gauge whether or not these
students are academically deficient, alleged by respondents. Thus, while the prerogative of schools to set
academic standards is recognized, we cannot affirm respondent school's action as to petitioners Non,
Villalon, Dayaon and Torres because of insufficient information.
With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such
fact alone, if true, will not bar him from seeking readmission in respondent school.
However, these should not be taken to mean that no disciplinary action could have been taken against
petitioners for breach of discipline if the facts had so warranted. In line with the Court's ruling in
Malabanan, petitioners could have been subjected to disciplinary proceedings in connection with the
February 1988 mass actions. But the penalty that could have been imposed must be commensurate to
the offense committed and, as set forth in Guzman, it must be imposed only after the requirements of
procedural due process have been complied with. This is explicit from the Manual of Regulations for
Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon any student,
except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated
and only after due investigation shall have been conducted."
But this matter of disciplinary proceedings and the imposition of administrative sanctions have become
moot and academic. Petitioners, who have been refused readmission or re-enrollment and who have
been effectively excluded from respondent school for four (4) semesters, have already been more than
sufficiently penalized for any breach of discipline they might have committed when they led and
participated in the mass actions that, according to respondents, resulted in the disruption of classes. To
still subject them to disciplinary proceedings would serve no useful purpose and would only further
aggravate the strained relations between petitioners and the officials of respondent school which
necessarily resulted from the heated legal battle here, in the Court of Appeals and before the trial court.
WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and
February 24, 1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to
allow the re- enrollment of petitioners, if they are still so minded, without prejudice to its taking the
appropriate action as to petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and Daniel Torres,
if it is shown by their records (Form 137) that they have failed to satisfy the school's prescribed academic
standards.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Paras, Gancayco, Bidin, Medialdea and Regalado,
JJ., concur.
Grio-Aquino, J., is on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Like Mr. Justice Teodoro R. Padilla, I had concurred in the majority opinion in Alcuaz, et al., vs. Philippine
School of Business Administration, et al., G.R. No. 76353, 2 May 1988, 161 SCRA 7.
But, as I had expressed in my vote on the Motion for Reconsideration in the said Alcuaz case "Except for
the general statement that students' enrollment is limited to per semester, I concur."
In other words, I agree with Mme. Justice Cortes that the "termination of contract doctrine" should be
overturned for being a doctrinal error. It is now clear (it was quoted out of context before) that paragraph
137 of the Manual of Regulations for Public Schools falls under Section VII on Tuition and Other Fees and
is intended merely to protect schools wherein tuition fees are collected and paid on installment basis. It
cannot be construed to mean that a student shall be enrolled for only one semester.
As to the power of discipline, my view still is that schools should retain that prerogative, with the caveat
that the penalty they impose be proportionate to the offense committed.
PADILLA, J., concurring:
I concurred in the majority opinion in Alcuaz, et al. vs. Philippine School of Business Administration, et al.,
G.R. No. 76353, 2 May 1988, 161 SCRA 7 including therefore that portion of the opinion which held that
under par. 137, Manual of Regulations for Private Schools, a college student in a private school is
enrolled only for one (1) semester and that after each semester "the school cannot be compelled to enter
into another contract with said students . . . ."
However, after carefully considering the decision penned by Madame Justice Cortes in the case at bar, I
am inclined to agree with her that "the contract between the school and students is not an ordinary
contract. It is imbued with public interest, considering the high priority given by the Constitution to
education . . . " (p. 15, Decision).
It would indeed appear that, consistent with this constitutional priority given to education, par. 107 of the
Manual of Regulations for Private Schools should be underscored. It provides that every student has the
right to enroll in any school college or university upon meeting its specific requirements and reasonable
regulations; . . . and that "the student is presumed to be qualified for enrollment for the entire period he is
expected to complete the course, without prejudice to his right to transfer."
It should be stressed, however, that this right of students to enroll is not designed to leave schools
completely helpless to deny enrollment or re- enrollment. For, par. 107 itself of the Manual of Regulations
for Private Schools still recognizes the right of the school to refuse enrollment in case of academic
deficiency or violation of disciplinary regulations of the school.
SARMIENTO, J., concurring:
I have always held that schools are not free to penalize, by administrative sanction or outright expulsion,
students on account alone of the fact that they had taken part in mass actions or assemblies. 1
Students, as all persons, enjoy freedom of speech and assembly, right granted by the Constitution, and
one nobody may abridge. The opinion of the majority reaffirms this fundamental principle.
This case also clarifies the true import of Paragraph 137 of the Manual of Regulations for Private Schools,
i.e., that it is intended merely to enable schools to collect fees for the entire semester although the student
may not have completed the semester. But in no way may learning institutions use the provision as an
excuse to dismiss students after one semester on the ground of termination of contract.
The "termination of contract" theory espoused by Alcuaz v. Philippine School of Business Administration 2
has indeed allowed schools to circumvent the guarantees of the Constitution by denying "erring" students
of their right to enroll, when the single "error" committed by the students was to participate in political
activities. As I said, our students have as much right to disagree whether against school policies or
government programs, and whether in or out of the school compound and no prior or subsequent
penalty may be inflicted on account of such acts alone.
To be sure, the school may punish students for breach of discipline, as, say, for breaking chairs or window
panes or for disrupting classes in the course of a demonstration, but they may be penalized for those
actions alone and not because of the content of their speech or the vociferousness with which it was
said . 3 Moreover, violations of school discipline must be judged on a case to case basis and measured
depending on gravity before school authorities may legitimately act. I do not think that the fact that a
demonstration has disrupted ongoing classes is a ground for penalizing students taking part therein
because a demonstration, from its very nature, is likely to disrupt classes. 4 The school must convincingly
show that the demonstrators had deliberately turned to lawlessness, say, by barricading the school gate
or the classroom entrances or otherwise prevented non-demonstrating students or members of the faculty
from attending a class or publishing one by threats or intimidation. Only in that sense may school heads
validly invoke "disruption of classes."
As far as discipline is concerned, this Court has laid down guidelines for proper school action. In
Malabanan v. Ramento, as in the present case, we held that the punishment must fit the crime, and in
Guzman v. National University, 5 we ruled that before any penalty may be imposed, the students
concerned should be allowed to be heard by themselves or representatives. In all cases, the courts
should be wary and the school authorities must themselves convince the judge that punishment meted
out is due to a real injury done to the school and not for the fact that the students had simply expressed
their constitutional right to disagree.
As to failing grades, I agree that, as we held in Villar v. Technological Institute of the Philippines, 6
academic deficiency is a legal basis for, among other things, expulsion. However, as Villar warned,
educational institutions must set standard "to determine under what circumstances failing grades suffice
for the expulsion of students, 7 and that such standards "should be followed meticulously," 8 and that they
"cannot be utilized to discriminate against those students who exercise their constitutional rights to
peaceable assembly and free speech." 9 What this decision makes plain is that the school must pre-set
the ground rules for either suspension or expulsion of students by reason of falling marks which must be
observed with reasonable uniformity. The school can not use it to spring surprises on students with failing
grades, who also happen to be politically active in the campus, after the authorities had long tolerated
their poor performance. In this case, our courts must also exercise caution that, as "disruption of classes",
resort to "failing grades" is not done to evade the constitutional mandates.
I take note of the increasing practice by school heads to simply bar students from enrollment for a host of
excuses as a result of their exercise of constitutional rights. I am gratified that the majority has put an end
to this practice.
I concur fully with Mme. Justice Irene Cortes' ponencia.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
Like Mr. Justice Teodoro R. Padilla, I had concurred in the majority opinion in Alcuaz, et al., vs. Philippine
School of Business Administration, et al., G.R. No. 76353, 2 May 1988, 161 SCRA 7.
But, as I had expressed in my vote on the Motion for Reconsideration in the said Alcuaz case "Except for
the general statement that students' enrollment is limited to per semester, I concur."
In other words, I agree with Mme. Justice Cortes that the "termination of contract doctrine" should be
overturned for being a doctrinal error. It is now clear (it was quoted out of context before) that paragraph
137 of the Manual of Regulations for Public Schools falls under Section VII on Tuition and Other Fees and
is intended merely to protect schools wherein tuition fees are collected and paid on installment basis. It
cannot be construed to mean that a student shall be enrolled for only one semester.
As to the power of discipline, my view still is that schools should retain that prerogative, with the caveat
that the penalty they impose be proportionate to the offense committed.
PADILLA, J., concurring:
I concurred in the majority opinion in Alcuaz, et al. vs. Philippine School of Business Administration, et al.,
G.R. No. 76353, 2 May 1988, 161 SCRA 7 including therefore that portion of the opinion which held that
under par. 137, Manual of Regulations for Private Schools, a college student in a private school is
enrolled only for one (1) semester and that after each semester "the school cannot be compelled to enter
into another contract with said students . . . ."
However, after carefully considering the decision penned by Madame Justice Cortes in the case at bar, I
am inclined to agree with her that "the contract between the school and students is not an ordinary
contract. It is imbued with public interest, considering the high priority given by the Constitution to
education . . . " (p. 15, Decision).
It would indeed appear that, consistent with this constitutional priority given to education, par. 107 of the
Manual of Regulations for Private Schools should be underscored. It provides that every student has the
right to enroll in any school college or university upon meeting its specific requirements and reasonable
regulations; . . . and that "the student is presumed to be qualified for enrollment for the entire period he is
expected to complete the course, without prejudice to his right to transfer."
It should be stressed, however, that this right of students to enroll is not designed to leave schools
completely helpless to deny enrollment or re- enrollment. For, par. 107 itself of the Manual of Regulations
for Private Schools still recognizes the right of the school to refuse enrollment in case of academic
deficiency or violation of disciplinary regulations of the school.
SARMIENTO, J., concurring:
I have always held that schools are not free to penalize, by administrative sanction or outright expulsion,
students on account alone of the fact that they had taken part in mass actions or assemblies. 1
Students, as all persons, enjoy freedom of speech and assembly, right granted by the Constitution, and
one nobody may abridge. The opinion of the majority reaffirms this fundamental principle.
This case also clarifies the true import of Paragraph 137 of the Manual of Regulations for Private Schools,
i.e., that it is intended merely to enable schools to collect fees for the entire semester although the student
may not have completed the semester. But in no way may learning institutions use the provision as an
excuse to dismiss students after one semester on the ground of termination of contract.
The "termination of contract" theory espoused by Alcuaz v. Philippine School of Business Administration 2
has indeed allowed schools to circumvent the guarantees of the Constitution by denying "erring" students
of their right to enroll, when the single "error" committed by the students was to participate in political
activities. As I said, our students have as much right to disagree whether against school policies or
government programs, and whether in or out of the school compound and no prior or subsequent
penalty may be inflicted on account of such acts alone.
To be sure, the school may punish students for breach of discipline, as, say, for breaking chairs or window
panes or for disrupting classes in the course of a demonstration, but they may be penalized for those
actions alone and not because of the content of their speech or the vociferousness with which it was
said . 3 Moreover, violations of school discipline must be judged on a case to case basis and measured
depending on gravity before school authorities may legitimately act. I do not think that the fact that a
demonstration has disrupted ongoing classes is a ground for penalizing students taking part therein
because a demonstration, from its very nature, is likely to disrupt classes. 4 The school must convincingly
show that the demonstrators had deliberately turned to lawlessness, say, by barricading the school gate
or the classroom entrances or otherwise prevented non-demonstrating students or members of the faculty
from attending a class or publishing one by threats or intimidation. Only in that sense may school heads
validly invoke "disruption of classes."
As far as discipline is concerned, this Court has laid down guidelines for proper school action. In
Malabanan v. Ramento, as in the present case, we held that the punishment must fit the crime, and in
Guzman v. National University, 5 we ruled that before any penalty may be imposed, the students
concerned should be allowed to be heard by themselves or representatives. In all cases, the courts
should be wary and the school authorities must themselves convince the judge that punishment meted
out is due to a real injury done to the school and not for the fact that the students had simply expressed
their constitutional right to disagree.
As to failing grades, I agree that, as we held in Villar v. Technological Institute of the Philippines, 6
academic deficiency is a legal basis for, among other things, expulsion. However, as Villar warned,
educational institutions must set standard "to determine under what circumstances failing grades suffice
for the expulsion of students, 7 and that such standards "should be followed meticulously," 8 and that they
"cannot be utilized to discriminate against those students who exercise their constitutional rights to
peaceable assembly and free speech." 9 What this decision makes plain is that the school must pre-set
the ground rules for either suspension or expulsion of students by reason of falling marks which must be
observed with reasonable uniformity. The school can not use it to spring surprises on students with failing
grades, who also happen to be politically active in the campus, after the authorities had long tolerated
their poor performance. In this case, our courts must also exercise caution that, as "disruption of classes",
resort to "failing grades" is not done to evade the constitutional mandates.
I take note of the increasing practice by school heads to simply bar students from enrollment for a host of
excuses as a result of their exercise of constitutional rights. I am gratified that the majority has put an end
to this practice.
I concur fully with Mme. Justice Irene Cortes' ponencia.

Footnotes
* Mr. Chief Justice Fernan, Mr. Justice Narvasa, Mme. Justice Herrera, Mr. Justice Cruz, Mr. Justice
Feliciano, Mr. Justice Sarmiento, and Mme. Justice Cortes
1 See Alcuaz v. Philippine School of Business Administration, No. 76353, May 2, 1988, 161 SCRA 7,
Sarmiento, J., Dissenting.
2 Supra.
3 Malabanan v. Ramento No. 62270, May 21, 1984, 129 SCRA 359
4 See US v. Apurado, 7 Phil. 422 (1907).
5 No. 68288, July 11, 1986, 142 SCRA 699.
6 No. 69198, April 17, 1985, 135 SCRA 706.
7 Supra 711.
8 Supra

NATIONAL PRESS CLUB VS. COMELEC [201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992]

Sunday, February 08, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Petitioners in these cases consist of representatives of the mass media which are prevented from
selling or donating space and time for political advertisements; two (2) individuals who are candidates for
office (one for national and the other for provincial office) in the coming May 1992 elections; and
taxpayers and voters who claim that their right to be informed of election Issue and of credentials of the
candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No.
66461 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners
maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and
singles out for suppression and repression with criminal sanctions, only publications of a particular
content, namely, media-based election or political propaganda during the election period of 1992. It is
asserted that the prohibition is in derogation of media's role, function and duty to provide adequate
channels of public information and public opinion relevant to election Issue. Further, petitioners contend
that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-
based campaign or political propaganda except those appearing in the Comelec space of the newspapers
and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the
quantity or volume of information concerning candidates and Issue in the election thereby curtailing and
limiting the right of voters to information and opinion.

Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.

Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom
of speech, freedom of expression and freedom of the press has to be taken in conjunction with Article IX
(C) (4) which may be seen to be a special provision applicable during a specific limited period i.e.,
"during the election period." In our own society, equality of opportunity to proffer oneself for public office,
without regard to the level of financial resources that one may have at one's disposal, is clearly an
important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the
Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for
public service and prohibit political dynasties as may be defined by law." The essential question is
whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the
power of supervision or regulation of the operations of communication and information enterprises during
an election period, or whether such act has gone beyond permissible supervision or regulation of media
operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press.
The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or
regulation of media operations during election periods.
Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of
Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods.
Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television
stations of news or news-worthy events relating to candidates, their qualifications, political parties and
programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of
candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions
and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b)
is not to be read as reaching any report or commentary other coverage that, in responsible media, is not
paid for by candidates for political office. Section 11 (b) as designed to cover only paid political
advertisements of particular candidates.

The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is not
unduly repressive or unreasonable.