G.R. Nos.

L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public
authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.
 That the following aggravating circumstances attended the commission of the
offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted."  A bill of attainder is a legislative act which inflicts punishment without trial.  Its essence
2 3

is the substitution of a legislative for a judicial determination of guilt.  The constitutional ban against
4

bills of attainder serves to implement the principle of separation of powers   by confining legislatures
5

to
rule-making   and thereby forestalling legislative usurpation of the judicial function.  History in
6 7

perspective, bills of attainder were employed to suppress unpopular causes and political
minorities,   and it is against this evil that the constitutional prohibition is directed. The singling out of
8

a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder.  9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct.  10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959   which, in U.S. vs. Brown,   was held to be a bill of attainder
11 12

and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —
 (1) as an officer, director, trustee, member of any executive board or similar
governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership in the Communist
Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
 engages, comes within the terms of the Act. If the Party should at anytime choose to
abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party.   But the statute specifically required that membership must be knowing or active, with
13

specific intent to further the illegal objectives of the Party. That is what section 4 means when it
requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts."   The ingredient of specific intent to pursue the unlawful goals of the Party must
14

be shown by "overt acts."   This constitutes an element of "membership" distinct from the ingredient
15

of guilty knowledge. The former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder.   Similarly,
16

a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or
remains a member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan.  17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act,   requiring labor unions to
18

file with the Department of Labor affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by
this Court. 
19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder.   It is upon this ground that statutes which disqualified those who had
20

taken part in the rebellion against the Government of the United States during the Civil War from
holding office,   or from exercising their profession,   or which prohibited the payment of further
21 22

compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities,   or which made it a crime for a member of the Communist Party to serve as an
23

officer or employee of a labor union,   have been invalidated as bills of attainder.

24
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be
"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman,   the New York legislature passed a law requiring every
26

secret, oath-bound society with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The
Court said:

The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated," —
meaning in that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."

We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
 Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes.  27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association.   In 28

1969 we again found that the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of government similar to that
of Soviet Russia and Red China."   More recently, in Lansang vs. Garcia,   we noted the growth of
29 30

the Communist Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's
Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of the
Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the historic explanation for uniting the two
mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 
31

Thus in Gardner vs. Board of Public Works,   the U.S. Supreme Court upheld the validity of the
32

Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.
 ... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof

expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability.   The penalties prescribed by the Act are thereforenot inescapable.
34

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values.   Accordingly, any limitation on their exercise mustbe justified by the existence
35

of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
 ... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to
the legislative judgment — will not be canvassed save to determine whether there is
a rationalbasis for believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 
36

The test formulated in Nebbia vs. new York,   andadopted by this Court in Lansang vs. Garcia,   is
37 38

that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected"   As Chief Justice Vinson so aptly said in Dennis vs. United
40

States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved."   The requirement
42

of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient

basis for penalizing membershipin a subversive organization.   For, as has been stated:
43

Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged.  44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language."  45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly

of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States:  47

It was settled in Dennis that advocacy with which we arehere concerned is not

constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty,
is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of
self-preservationand the values of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the
legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods.   For in truth, legislation, "whether it restrains freedom tohire
48

or freedom to speak, is itself an effort at compromisebetween the claims of the social order and
individual freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law."  49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into
law shall embrace more than one subject which shall be expressed in the title of the bill."  50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
purpose of placing such Government or political subdivisionunder the control and
 domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of
the Act.   It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences
51

of the proposed lawand its operation.   A narrow or technical construction isto be avoided, and the
52

statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize

the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of
the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign
power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases
are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

Separate Opinions

 
FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act.  It is to be admittedthat the learned and scholarly
1

opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe
constitutional issues raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause  coupled withthe fears, perhaps induced by a too-latitudinarian
2

constructionof the guarantees of freedom of belief and expression  as well as freedom of
3

association   as to impermissible inroadsto which they may be exposed, compels a

4

differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities."  Two American
5

SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
Missouri   and Ex parte Garland.   They speak unequivocally. Legislative acts, no matter whattheir
6 7

form, that apply either to named individuals or easilyascertainable members of a group in such a
way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without
judicial trial are billsof attainder prohibited by the Constitution. 
8

Cummings v. Missouri   was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
9

oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a
"desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without
theoath, they were criminally liable. The United States Supreme Court condemned the provision as a
bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The
deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate
functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof
trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of
evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we
have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having
been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or
drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand
clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and
hencebe subjected to the like deprivation, the clause would beequally open to objection. And further,
it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no
less within the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards provided
for the security ofthe citizen in the administration of justice by the establishedtribunales."  10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland   was also11

decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the applicant have three years practice in the
statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause
requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be
allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt
again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were
committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding
their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition
is contained in the Constitution againstenactments of this kind by Congress; and the
argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case."  12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett,   decided
13

in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had
been for several yearsworking for the government. The government agencies,which had lawfully
employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed
on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency
AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they wereprior to
November 15, 1943, again appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint
the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought
this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction
of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it."  14

United States v. Brown   a 1965 decision was the firstcase to review a conviction under the Labor-
15

ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the

Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open
andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of
Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year
terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment
returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision.
The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication.
While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the
evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply — trial by legislature."   Then after referring to Cummings, Garland, and Lovett,Chief Justice
16

Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not
setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability — members of the Communist Party."  17

Even Communist Party v. Subversive Activities ControlBoard,   where the provision of the
18

Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to
register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party
been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of
attainder. It attaches notto specified organizations but to described activities inwhich an organization
may or may not engage. The singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name or described in terms of
conduct which,because it is past conduct, operates only as a designationof particular persons. ...
The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding
must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature."  19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees.   It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the
21

threat that Communism, the Russian brand then, didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could
neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such
mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally precluded from acting in
anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it."   As was so well put by the philosopher,Sidney Hook: "Without
22

holding the right to theexpression of heresy at any time and place to be absolute — for even the right
to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own."  23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms."   This is so
24

for "a governmental purpose to control or prevent activities constitutionally subject to state regulation
may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of
protected freedoms."   It isindispensable then that "an over breadth" in the applicabilityof the statute
25

be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world —
ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries."   Further he stated: "I believe with theFramers of the First Amendment that the
26

internal securityof a nation like ours does not and cannot be made todepend upon the use of force
by Government to make allthe beliefs and opinions of the people fit into a commonmold on any
single subject. Such enforced conformity ofthought would tend only to deprive our people of the
boldspirit of adventure and progress which has brought thisNation to its present greatness. The
creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison —
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in
effect during the period beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security
can betterbe served by depending upon the affection of the peoplethan by attempting to instill them
with fear and dreadof the power of Government. The Communist Party hasnever been more than a
small group in this country. Andits numbers had been dwindling even before the Governmentbegan
its campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year
after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course
that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government the
fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views."  27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act.  It is to be admittedthat the learned and scholarly
1

opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe
constitutional issues raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause  coupled withthe fears, perhaps induced by a too-latitudinarian
2

constructionof the guarantees of freedom of belief and expression  as well as freedom of
3

association   as to impermissible inroadsto which they may be exposed, compels a

4

differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities."  Two American
5

SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
Missouri   and Ex parte Garland.   They speak unequivocally. Legislative acts, no matter whattheir
6 7

form, that apply either to named individuals or easilyascertainable members of a group in such a
way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without
judicial trial are billsof attainder prohibited by the Constitution. 
8

Cummings v. Missouri   was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
9

oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a
"desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without
theoath, they were criminally liable. The United States Supreme Court condemned the provision as a
bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The
deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate
functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof
trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of
evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we
have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having
been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or
drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand
clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and
hencebe subjected to the like deprivation, the clause would beequally open to objection. And further,
it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no
less within the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards provided
for the security ofthe citizen in the administration of justice by the establishedtribunales."  10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland   was also
11

decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the applicant have three years practice in the
statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause
requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be
allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt
again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were
committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding
their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition
is contained in the Constitution againstenactments of this kind by Congress; and the
argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case."  12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett,   decided
13

in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had
been for several yearsworking for the government. The government agencies,which had lawfully
employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed
on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency
AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they wereprior to
November 15, 1943, again appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint
the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought
this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction
of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it."  14

United States v. Brown   a 1965 decision was the firstcase to review a conviction under the Labor-
15

ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the

Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open
andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of
Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year
terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment
returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision.
The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication.
While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the
evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply — trial by legislature."   Then after referring to Cummings, Garland, and Lovett,Chief Justice
16

Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not
setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability — members of the Communist Party."  17

Even Communist Party v. Subversive Activities ControlBoard,   where the provision of the
18

Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to
register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party
been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of
attainder. It attaches notto specified organizations but to described activities inwhich an organization
may or may not engage. The singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name or described in terms of
conduct which,because it is past conduct, operates only as a designationof particular persons. ...
The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding
must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature."  19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees.   It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the
21

threat that Communism, the Russian brand then, didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could
neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such
mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally precluded from acting in
anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it."   As was so well put by the philosopher,Sidney Hook: "Without
22

holding the right to theexpression of heresy at any time and place to be absolute — for even the right
to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own."  23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms."   This is so
24

for "a governmental purpose to control or prevent activities constitutionally subject to state regulation
may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of
protected freedoms."   It isindispensable then that "an over breadth" in the applicabilityof the statute
25

be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world —
ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries."   Further he stated: "I believe with theFramers of the First Amendment that the
26

internal securityof a nation like ours does not and cannot be made todepend upon the use of force
by Government to make allthe beliefs and opinions of the people fit into a commonmold on any
single subject. Such enforced conformity ofthought would tend only to deprive our people of the
boldspirit of adventure and progress which has brought thisNation to its present greatness. The
creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison —
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in
effect during the period beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security
can betterbe served by depending upon the affection of the peoplethan by attempting to instill them
with fear and dreadof the power of Government. The Communist Party hasnever been more than a
small group in this country. Andits numbers had been dwindling even before the Governmentbegan
its campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year
after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course
that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government the
fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views."  27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Footnotes
1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The text of the statute is
hereunder reproduced in full:

"AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND

SIMILAR ASSOCIATIONS PENALIZING MEMBERSHIP THEREIN, AND FOR
OTHER PURPOSES.

"WHEREAS, the Communist Party of the Philippines, although purportedly a political

party, is in fact an organized conspiracy to overthrow the Government of the
Republic of the Philippines not only by force and violence but also by deceit,
subversion and other illegal means, for the purpose of establishing in the Philippines
a totalitarian regime subject to alien domination and control;

"WHEREAS, the continued existence and activities of the Communist Party of the
Philippines constitutes a clear, present and grave danger to the security of the
Philippines; and

"WHEREAS, in the face of the organized, systematic and persistent subversion,

national in scope but international in direction, posed by the Communist Party of the
Philippines and its activities, there is urgent need for special legislation to cope with
this continuing menace to the freedom and security of the country: Now, therefore,

"Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

"Section 1. This Act shall be known as Anti-Subversion Act.

"Section 2. The Congress hereby declares the Communist Party of the Philippines to
be an organized conspiracy to overthrow the Government of the Republic of the
Philippines for the purpose of establishing in the Philippines a totalitarian regime and
place the Government under the control and domination of an alien power. The said
party and any other organization having the same purpose and their successors are
hereby declared illegal and outlawed.

Section 3. As used in this Act, the term 'Communist Party of the Philippines' shall me
and and include the organizations now known as the Communist Party of the
Philippines and its military arm, the Hukbong Mapagpalayang Bayan, formerly known
as HUKBALAHAPS, and any successors of such organizations.

"Section 4. After the approval of this Act, whoever knowingly, willfully and by overt
acts affiliates himself with, becomes or remains a member of the Communist Party of
the Philippines and/or its successor or of any subversive association as defined in
section two hereof shall be punished by the penalty of arresto mayor and shall be
disqualified permanently from holding any public office, appointive and elective, and
from exercising the right to vote; in case of a second conviction, the principal penalty
shall be prision correccional, and in all subsequent convictions the penalty of prision
mayor shall be imposed; and any alien convicted under this Act shall be deported
immediately after he shall have served the sentence imposed upon him: Provided,
That if such member is an officer or a ranking leader of the Communist Party of the
Philippines or of any subversive association as defined in section two hereof, or if
such member takes up arms against the Government he shall be punished
by prision mayor to deal with all the accessory penalties provided therefor in the
Revised Penal Code: And provided, finally, That one who conspires with any other
person to overthrow the Government of the Republic of the Philippines or the
government of any of its political subdivisions by force, violence, deceit, subversion
or other illegal means, for the purpose of placing such Government or political
subdivision under the control and domination of any alien power, shall be punished
by prision correccional to prision mayor with all the accessory penalties provided
therefor in the same Code.

"Section 5. No prosecution under this Act shall be made unless the city or provincial
fiscal, or any special attorney or prosecutor duly designated by the Secretary of
Justice as the case may be, finds after due investigation of the facts, that a prima
facie case for violation of this Act exists against the accused, and thereafter presents
an information in court against the said accused in due form, and certifies under oath
that he has conducted a proper preliminary investigation thereof, with notice,
whenever it is possible to give the same, to the party concerned, who shall have the
right to be represented by counsel, to testify, to have compulsory process for
obtaining witness in his favor, and to cross-examine witnesses against
him: Provided, That the preliminary investigation of any offense defined and
penalized herein by prision mayor to death shall be conducted by the property Court
of First Instance.

"Section 6. Any person who knowingly furnishes false evidence in any action brought
under this Act shall be punished by prision correccional.

"Section 7. No person shall be convicted of any of the offenses penalized herein

with prision mayor to death unless on the testimony of at least two witnesses to the
same overt act or on confession of the accused in open court.

"Section 8. Within thirty days after the approval of this Act, any person who is a
member of the Communist Party of the Philippines or of any such association or
conspiracy, who desires to renounce such membership may do so in writing and
under oath before a municipal or city mayor, a provincial governor, or a person
authorized by law to administer oaths. Such renunciation shall exempt such person
or persons from the penal sanction of this Act, but the same shall in no way exempt
him from liability for criminal acts or for any violation of the existing laws of the
Republic of the Philippines committed before this Act takes effect.

"Section 9. Nothing in this Act shall be interpreted as a restriction to freedom of

thought, of assembly and of association for purposes not contrary to law as
guaranteed by the Constitution.

"Approved, June 20, 1957."

2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention) referred to the
Anglo-American origin of this right thus:

"No ex post facto law or bill of attainder shall be enacted. This provision is found in
the American Federal Constitution (Art. 1, Sec. 9) and is applicable to the States (id.
Sec. 10). An ex post facto law is a law which makes an act punishable in a manner in
which it was not punishable when committed. It creates or aggravates the crime or
increases the punishment, or changes the rules of evidence for the purpose of
conviction. The prohibition against the passage of ex post facto laws is an additional
bulwark of personal security — protecting the citizen from punishment by legislative
act which has a retrospective operation.

"The phrase ex post facto has a technical meaning and refers to crimes and criminal
proceedings. It is in this sense that it was used in England. It was in this sense that
the convention of 1787 understood it. (Calder v. Bull, supra; Watson v. Mercer, 8 Pet.
88, 110; Suterlee v. Mathewson, 2 Peters, 380; Kring v. Missouri, 107 U.S. 221.) This
interpretation was upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.).

"A bill of attainder is a legislative act which inflicts punishment without judicial trial.
(Cummings vs. United States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of
Attainder was an act of Parliament by which a man was tried, convicted and
sentenced to death without a jury, without a hearing in court, without hearing the
witnesses against him and without regard to the rules of evidence. His blood was
attained or corrupted, rendering him devoid of all heritable quality — of acquiring and
disposing property by descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the
penalty imposed was less than death, the act was known as a "bill of pains and
penalties." Bills of attainder, like ex post facto laws, were favorite methods of Stuart
oppression. Once, the name of Thomas Jefferson was included in a bill of attainder
presented to Parliament because of his reform activities.

"Often, such bills were 'stimulated by ambition or personal resentment, and vindictive
malice.' (Calder v. Bull, supra.) A well known case illustrating the ruthless manner in
which a bill of attainder was resorted to was that of Thomas Wentworth, chief adviser
of Charles I. He was brought to impeachment charged with attempting to subvert the
liberties of England. He defended himself so ably that his enemies, fearing his
acquittal, withdrew the impeachment and a bill of attainder was passed instead.
Wentworth was beheaded. Bills of attainder were also passed in the Colonies (North,
The Constitution of the U.S., its Sources and Applications, p. 85.) The prohibition in
the Bill of Rights, therefore, seeks to present acts of violence and injustice brought
about the passage of such bills." (3 J. Laurel, Proceedings of the Constitutional
Convention 661-663 [1966]).

3 Cummings vs. United States, 4 Wall. (71 U.S.) 277 (1867); accord, Ex

parte Garland, 4 Wall. (71 U.S.) 333 (1867). This definition was adopted by this Court
in People vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs. Montenegro, 91 Phil.
883,885 (1952).

4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United States vs. Lovett, 328 U.S.
303, 615, (1946).

5 Chief Justice Warren referred to the Bill of Attainder Chause as an implementation

of the separation of powers, "a general safeguard against legislative exercise of
judicial function, or more simply, trial by legislature." United States vs. Brown, 381
U.S. 437 (1964).

6 "It is the peculiar province of the legislature to prescribe general rules for the
government of society; the application of those rules to individuals in society would
seem to be the duty of other departments." Fletcher vs. Peck, 6 Cranch (10 U.S.)87,
136 (1810).
7 "The legislative body in enacting bills of attainder exercises the powers and office
of judge, it pronounces upon the guilt of the party, without any of the forms or
safeguards of trial...it fixes the degree of punishment in accordance with its own
notions of the enormity of the offense." Cummings vs. Missouri, supra note 3.

8 Bills of this sort, says Mr. Justice Story, have been most usually passed in England
in times of rebellion or gross subserviency to the crown, or of violent political
excitements; periods, in which all nations are most liable (as well as free as the
enslabe) to forget their duties, and to trample upon the rights and liberties of others."
Comm. sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During the American
revolution legislative punishments had been continued by state legislatures, when
numerous bills of attainder were enacted against the Torries. 1C. Antieu, Modern
Constitutional Law, 425.

9 C. Antieu, supra note 8 at 423.

10 The Supreme Court of the United States said in Fleming vs. Nestor, 363 U.S. 603,
613-14 (1960):

"In determining whether legislation which bases a disqualification on the happening

of a certain past event imposes a punishment, the Court has sought to discern the
objects on which the enactment in question was focused. Where the source of
legislative concern can be thought to be the activity or status from which the
individual is barred, the disqualification is not punishment even though it may bear
harshly upon one affected."

11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).

12 381 U.S. 437 (1965) (5-4 vote).

13 Keyishian vs. Board of Regents, 385 U.S. 589 (1967);Elfbrandt vs. Russell, 384
U.S. 11 (1966).

14 Cf . Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United States, 367
U.S. 290 (1961).

15 During the Senate deliberations on the bill, Senator Cea remarked: "I have
inserted the words 'overt acts' because we are punishing membership in the
Communist Party. I would like that membership to be proved by overt acts, by
positive acts, because it may happen that one's name may appear in the list of
members." Senate Cong. Rec. May 22, 1957, p. 1900.

16 Board of Governors of Federal Reserve System vs. Agnew, 329 U.S. 441.

17 New York ex rel. Bryant vs. Zimmerman, 278 U.S. 63(1928).

18 Repealed by Rep. Act 4241.

19 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor, Feb. 27, 1969, 27
SCRA 40.
20 United States vs. Lovett, 328 U.S. 303 (1946).

21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).

22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).

23 United States vs. Lovett, 328 U.S. 303 (1946).

24 United States vs. Brown, 381 U.S. 437 (1965).

25 The Bounds of Legislative Specification: A Suggested Approach to the Bill of

Attainder Clause, 72 Yale L. J. 330, 351-54(1962).

26 278 U.S. 63 (1928).

27 Id. at 75-77.

28 People vs. Evangelista, 57 Phil. 375 (1932); see also People vs. Evangelista, 57

Phil., 372 (1932); People vs. Capadocia, 57 Phil. 364 (1932); People vs. Evangelista,
57 Phil. 354 (1932); People vs. Feleo, 57 Phil. 451 (1932); People vs. nabong, 57
Phil. 455 (1932).

29 People vs. Lava, L-4974-78, May 16, 1969.

30 L-33864, Dec. 11, 1971, 42 SCRA 448.

31 United States vs. Lovett, 328 U.S. 303, 318 (1946).

32 341 U.S. 716 (1951).

33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1960).

34 Sec. 8.

35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-25721, May 26,
1969, 28 SCRA 351.

36 Freund, Review of Facts in Constitutional Cases, in Supreme Court and Supreme

Law 47-48 (Cahn ed. 1954).

37 291 U.S. 502, 537 (1934).

38 L-33964, Dec. 11, 1971, 41 SCRA 448.

39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).

40 Dennis vs. United States, 341 U.S. 494, 509 (1951).

41 Id. at 501.
42 Shelton vs. Tucker, 364 U.s. 479 (1960).

43 Scales vs. United States, 367 U.S. 203 (1961); see also Noto vs. United States,
367 U.S. 290 (1961).

44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir. 1952).

45 People vs. nabong, 57 Phil. 455, 458 (1932).

46 18 U.S.C. sec. 2385. (emphasis added).

47 367 U.S. 203 (1961).

48 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1961).

49 P. A. Freud, The Supreme Court of the United States 75 (1961).

50 Const., art VI, Sec. 21 (1).

51 Government vs. Hongkong & Shaihai Banking Corp., 66 Phil. 483 (1938).

52 Lindasan vs. Commission on Elections, L-28089, Oct. 25, 1967, 21 SCRA 496.

FERNANDO, J., concurring:

1 Rep. Act No. 1700 (1957)..

2 According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill of attainder shall
be enacted."

3 According to Art. III, Sec. 1, par. 8: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peacebly to assemble and
petition the Government for redress of grievances."

4 According to Art. III, Sec. 1 par. 4: "The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired."

5 Footnote 2, p. 9 of Opinion of the Court.

6 4 Wall. 277 (1867).

7 4 Wall. 333 (1867).

8 Cf. United States v. A Lovett, 328 US 303 )1946).

9 4 Wall. 277 (1867).

10 Ibid, 323, 325.

11 4 Wall. 333 (1867).

12 Ibid, 377-378.

13 328 US 303.

14 Ibid, 315-316.

15 381 US 437.

16 Ibid, 442.

17 Ibid, 449-450.

18 367 US 1 (1961).

19 Ibid, 86-87.

20 Opinion of the Court, p. 15.

21 According to Art. III, Sec. 1, par. 6: "The right to form associations or societies for
purposes not contrary to law shall not be abridged." Paragraph 8 of this section
reads as follows: "No law shall be passed abridging the freedom of speech, or of the
press, or the right of the people peacebly to assemble and petition the Government
for redress of grievances."

22 Jefferson's First Instance Address, March 4, 1801, in Padover, ed., The Complete
Jefferson, 385 (1943).

23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).

24 Gonzalez v. Commission on Elections, 27 SCRA 835,871(1969) citing Shelton v.

Tucker, 364 US 479 (1960) and NAACP v. Button, 371 US 415 (1963).

25 NAACP vs. Alabama, 377 US 288 (1964).

26 Communist Party v. Subversive Activities Control Board, 367 US 1, 148.