The Anti Subversion Law and Subversion

Document Sample
The Anti Subversion Law and Subversion Powered By Docstoc
					      "Justice may not always be the motive of the lawmaker, but it is,
              "      "    "        "   "    "       "   "    "            "    "   "

      always for the law. Thus, the law must not be an accomplice, nay,
      a conscious conspirator to any treachery of government against the
      people. When, a particular law is born oppressive, it must not per-
      petuate the whim and ill motive of those who enacted such law.
      It must, in self-negation, seek to extinguish itself, even if this would
      mean ingratitude to those who created the law and disobedience
      to those who now wish to enforce its oppressiveness. For the
       * At no time since the passagei of the Anti-Subversion Law in 1957, has there
been more public response to it than today. This is because the Act has been invoked
recently by State prosecutors in a series of cases against activists and suspected com-
munists. But perhaps the more definite reason is the relatively acute level of aware-
ness thel public has now developed, brought about by the massive proliferation of
contemporary nationalist propaganda.
       The public's response to Republic Act No. 1700 is more than curiosity about
the law-which by the way had hitherto seemed to be the sole privilege of the courts
and legal practitioners but is a positive reaction deeply motivated by a greater con-
cern for the common welfare. This calls for an objective, yet committed analysis of
the law.
       The issue) of whether or not to repeal the Law has divided the public into three
sides. There, are those who want the Law repealed entirely. Still others would only go
as far as amending the Law, removing its objectionable character as a bill of attainder.
And lastly, those who want the Law enforced fully are almost always identified with
the ruling Administration.
       In the light of this controversy over an issue vital to the public, this article takes
l3. position at the edge     of relevance. Conscious of the limitation imposed on legal
scholarship by the principle of sub-judice-a       concept which though lacking in cons-
titutIOnal or statutory basis, has not yet been revoked by the SUpreme Court in con-
tempt-of-court cases, the author has confined his examination of the Law within the
framework of settled American and Philippine jurisprudence. No mention whatsoever
is made of the case of P,eople v. Tayag, et. al. now pending in the Supreme Court
 or of other subvers'ion cases pending in the lower courts. In fact, the author encoun-
tered difficulties in the strict observance of this limitation. The original manuscript
had to be discussed with the faculty editor and the Dean of the College who both
 warned of a contempt-of-court charge because the original contained comments              on
the Nilo Tayag case. In the absence of a stronger "test case" the Journal has taken
 the safer position by having the original draft revised, again;rt the original intent of
 the author who was willing to risk a "test case" in the firm belief that the concept of
sub judice is obsolete at this time when even the Supreme Court should not isolate
 itself from public opinion in the adjUdication of cases. The author believes that sub
judice has no ba:;is in written law, except perhaps the constitutional provisions which
 guarantee the independence of the judiciary. But these provisions do not even mention
 the concept and to apply them to the principle would be stretching the provisions. to
nnimpliecl proportions. Should the Court, while a case is pending before it, be quaran-
 tined from alL outside opinions on the contention that it wants to protect its indepen-
 dence? A court, knowledgeable of the law, unblemished in its integrity, and certain
 of its moral convicti~~s, need not fear public opinion. Neither is the Court obliged
 10 cater to any prevallmg public mood. But on the other hand, the Court, i~' it is to
 bear witness to .the crucial relationship which the law has with svcial needs must lay
 open its sacred gates and cultivate a keen and unique sensitivity to social needs-
 which the law in its infinite wisdom may yet realize. Thus, even in the acljudication
 of cases, the Court must bel open to ,criticism. If in the impact of criticisms, the Court
 can prove its worth, there can be no better guarantee of its independence.
        ** Chairman, Student Editorial Board, Philippine Law Journal.
     continued existence of a bad law is always infectious of the others.
     The entire legal system is blotted and is eventualty shrouded with
      illegitimacy. The people will equate the law with injustice, and
     the State, which obstinately insists in upholding the law, must
     inevitably run the risks of subversion."
      In a hasty, misconception of subversion, the government in enacting and
enforcing the Anti-Subversion     Law has spread the venom of subversion.
The conscientious citizen, by merely voicing dissent to an extremely unjust
society, is labelled "subversive". Where then should dissent be channeled,
except in subversion?
      And yet this government has never looked at itself as the real subver-
sive, detached and unacceptable to the people. Instead, it passed a law to
protect itself from the people. The law now plagues the mind of the cons-
cientious' citizen. If he becomes a subversive, it is because the law wants
him to be.
      The Anti-Subversion Law is a bill of attainder. It punishes the      accused
(in the real sense) without trial. The presumptioIli of innocence,          strictly
observed in all criminal cases, is not only lost; it does not exist in a   subver-
sion case. The subversive, is thus, in the eyes of the law, worse           than a

      What grave offense, the subversive has committed is known only to
the law, for the law defines subversion as an illegal means to overthrow
the Government of the Republic, for the purpose of establishing in the
Philippines a totalitarian regime subject to alien control and domination.l
     The Communist Party of the Philippines, its allies and successors, and
all other similar associations are subversives.    To be a member of these
organizations is unlawful and punishable to a maximum penalty of death.
Membership is ipso facto guilt beyond reasonable doubt, and the judge, if
he is to obey the letter of the law will convict the accused on the sole basis
of a roster.
     The lives of poor Filipinos can not be so meaningless as to be offered
in sacrifice to an illegitimate use of legislative power by the ruling class.
When the solon enacts a wrong law, the judge must not only disobey but
must destroy the law by declaring it void.
      The more enlightened members of Congress should likewise have the
law repealed. The public must discuss the Law and demand its immediate
     It is the task of this essay to contribute to a meaningful discussion of
the Anti-Subversion Law. A serious and objective study of the Law reveals
very clearly the reasons for its immediate abolition.
      By way of summary, there are four basic reasons why the Law should
be repealed: First, it is a bill of attainder. Second, some of its textual pro-
visions are vague and liable to several interpretations. Third, it is unneces-
sary in the light of the provisions in the Revised Penal Code punishing
sedition, rebellion, and any other conceivable crime against the security
of the state. And fourth, at a time of confusion as to the real definition of
subversion, and given the kind of objective reality obtaining in Philippine
society, the Anti-Subversion Law has become the instrument of the real
subversive against the subverted.

1. The Legislative History

      Labelled as House Bill No. 6583, the Anti-Subversion Law was onglll-
~llly sponsored by seventeen congressmen on February 21, 1957. The text
was the master craft of the Committee on Anti-Filipino Activities (CAFA),
which became famous for its sensational inquisitions of some professors and
students at the University of the Philippines for alleged subversive activities.
The Committee on Revision of Laws merely assisted in drafting the law.
     Two months later, it was approved on second reading, with an addition-
al twelve congressmen joining as co-authors. The next day, it was approved
on third reading by the lower House and immediately sent to the Senate for
     At the Senate, it was passed with amendments on May 22 and the
next day it was referred to the two committees where it originated.
      With the Senate insisting on its amendments, a joint conference was
held on May 23 and on the same day, both chambers agreed on the con-
ference report.
     Finally, it was approved into law as Republic Act No. 1700 by Presi-
dent Carlos P. Garcia on June 20, 1957.
      We may consider the prompt and brisk dispatch displayed by your
solons in enacting the law, in contrast to the way a resolution now in Cong-
ress repealing the law is treated. In only four months, the Act was approved
into law.
      We may consider, likewise, the debates in the congressional records
wherein almost all solons who spoke on the floor, wanted it to be placed
on the record that they were all in favor of the idea and the reasons for the
bill. They differed, if at all only in minor details like the definition of terms.
We may consider, furthermore, the result of the final voting on the bill. In
the lower House, all the sixty one congressmen present voted affirmatively
 for the bill and in the Senate all the thirteen Senators present voted affirm-
 atively for the bill.2
      Undoubtedly, all these and the absence of any real opposition, an
 otherwise abnormal nature of our Congress, made up for the fact that the
 passage of the law was not only premeditated but also expected and planned.
      This conclusion will gain greater support upon consideration of the
 non-legislative background-the social and political setting surrounding the
 passage of the Law.

 2. The Social and Political Setting
       The local political climate was significantly marked by the rise of Ramon
 Magsaysay. Immediately after having virtually broken the backbone of the
 Huk movement, he was catapulted overwhelmingly to the Presidency over
 his rival-then President Elpidio Quirino. This was in 1954 and the political
 barometer was simply not in favor of the Huks. Earlier in the 1950's, they
 were not only demoralized with the surrender and/or capture of their leaders
 and the death of many comrades in battle, but they were virtually left
 helpless with no other seemingly better alternative than to surface above
 and wage a protracted parliamentary struggle. Actually this parliamentary
 struggle of the "Old Left"3 had been waged very much earlier, immediately
 after the Japanese occupation. The entry into "bourgeois" post-war politics
 of prominent members of the Politburo, in the guise of the "Democratic
Alliance," underscored this fact. Only when the successful leftist candidates
were ousted from their elected positions without obviously valid reasons
except their political color, did these revolutionaries go underground and
resume the armed struggle they left after the war. Picking up from were
they left, the ideological foundation upon which any successful revolutionary
movement ought to be built and upon which a protraoted armed struggle
was to be supported was substantially neglected. Hence, the sudden military
action did not oorrespond to the level of ideological orientation. The leaders
of the movement were in a hurry to capture political power, the idea of a
long protracted warfare was unthinkable. The uncalculated on-rush to the
hills and the attacks on the towns and cities proved to be adventuristic and
ended in concrete failure. In world politics, the cold war was reaching
wider proportions spreading through the Asian and Southeast Asian regions
and even Latin America. The final victory of the Chinese Communist Party
in 1949 boosted the revolutionary movements in other countries. It provided
concrete ideological direction to the countries of the third world, while the
      2 See 4 HOUSE OF REP. CONGoRECORD, 1097-1111, 1260-84, 1407 April 4, 8-23,
1957, and 4 SENATECONGoRECORD1915 (May 22, 1957).
      3 The "Old Left" refers to the Communist Party headed by the Lava brothers, as
distinguished from the "New Left" which refers to the re-established Communist Party
headed by Amado Guerrero.
material and scientific advances in Russia gave logistical support. The Uni-
ted States and other Western powers were desparately stemming the tide
of revolutions; trying obstinately to preserve their colonies and spheres of
influence, not at all times resulting in their favor. For instance, despite
combined western imperialist reaction, the revolutions in China, North Korea,
and North Vietnam succeeded. Of course, revolutions were repulsed in South
Vietnam, South Korea, Malaya, Laos and the Philippines, at the same time
that paper democracies were set up in these countries. With the aid of im-
perialist powers, fascist regimes were put up in many Latin American
      The imperialists' idea was to "oontain" all wars of national liberation
wherever they were found and which the Western Powers always equated
with communism. The overall strategy was to oppose these wars at all fronts,
by all means, both military and non-military. It was within the context of
this idea that a legal battle was to be waged against oommunism.

     In the United States, a legal battle against communism was started by
the McCarthyists, who afraid of communists in their own country, initiated
several congressional investigations of suspected communists.
      In 1950, the Internal Security Act4 was passed. It provided for the
registration of all "communist action fronts and infiltrated organizations"
and authorized the Attomey General to compel ttem to register as such. A
member of such organizations was disqualified from holding non-elective
governments positions and employment in a defense facility5 and from ob-
taining a passport6. Likewise, the mails and broadcasts of these organizations
were to be identified as originating from oommunist organizations7• Alien
members were excludable, deportable and ineligible for naturalization. Some
members could be denaturalized9• Tax exemptions and deductions were with-
drawn 10.
      In 1954, the Communist Control Actll was passed which later (1957)
became the model from which the Philippine Anti-Subversion Law was
copied. Surprisingly however, while the Communist Control Act did not
outlaw the American Communist Party, the Anti-Subversion Law categor-
ically outlaws the Philippine Communist Party. The Control Act merely
divests the American Communist Party of "whatever rights, privileges, and
    450 U.S.C.A. sec. 782; 64 Stat. 989.
    ;; Sec. 5(a).
    16 Sec. 6(a).
    7 Sec. 10.
    g Sees. 22 & 25.
    9 Sec. 25.
    10- Sec. 11.
    11 50 U.S.C.A. sec. 841, 68 Stat. 775. See Comment, 64   YALE   L. J. 712 (1955).
immunities which have heretofore been granted to said party or any sub-
sidiary organization by reasons of the laws of the United States or any poli-
tical subdivision thereof".12

4. Appraisal

       It is crucially important to set the Law in it proper legislative and
political background in order to understand not only the factual circumstances
of its passage but also the rationale of the Law.
      The objective conditions in both local and outside politics were such
that the Philippines, a former United States colony and newly independent
with a fledgling Republic, internally rocked by fierce ideological challenges
from local communists, uninformed of the true state of affairs in the outside
world-notably     conditions obtaining in Russia and other communist coun-
tries except information coming fwm American sources which distorted and
overly emphasized the brutalities of Stalin and hence equated them with
Communism itself, embroiled and confused, even naive in the power politics
and oold war of the contending powers, was content to play the role of a
pawn which had to move across or along the rows of the ideological chess-
board according to the strategy of a grand master. Thus, it must send mer-
cenary troops to Korea to help fight Communists. At home, it had to fight
local communists. It had to pass an Anti-Subversion Law. If the United States
decided to control American communists by depriving them of certain privi-
leges normally enjoyed by other citizens, the Philippine Government had to
go a step further, outrightly outlawing the Communist Party's existence.
     The intent of the Law is therefore clear, i.e. to contain local communists.

1. Concept     and History
      A bill of attainder is a legislative act which inflicts punishment without
judicial trial.l3 It has a long history. Norton14 traces the first origin of a bill
or attainder, dating it in 1459 in England. There, the bill of attainder was
an act of parliament by which an individual was convicted without the bene-
fit of trial. There was no jury, no hearing, and no rules of procedure and
evidence. The person accused under the law was simply convicted. Worse,
the blood o( the convict was already "attained and corrupted" in the eyes
of the law and he could not inherit property nor could his children inherit
from him. This was deprivation of property without due process, an act
contrary to the Charter of Edward II (1327-1377). Henry VIII (1509-

    12   Sec. 3.
    13Cllmmings    v. Missouri,   4 Wall.   277,   18 L. Ed.   356   (1867).
1547) employed bills of attainder to accuse his enemies of acts not punish-
able by then existing laws. Parliament, during the time of Charles I (1625-
1649), prosecuted    unwanted dissenters by enacting bills of attainder. In
1690, an act was passed "for the attainder of diverse rebels". Regarding this
Act, Macaulay cormnented, "It was not even pretended that there had been
any inquiry into the guilt of those who were thus proscribed."   However in
1870, a more enlightened Parliament abolished forfeiture except upon out-
lawry and provided that "no judgment of or for any reason or felony shall
cause any corruption of blood or any fortfeiture or escheat". Thomas Jef-
ferson's name was listed in a bill of attainder although it was not pressed
to a vote.

     A significant case of a bill of attainder was that of Thomas Wenworth,
Earl of Strafford and chief adviser to Charles 1. In 1640, he was charged
with "subverting    the liberties" of England and impeachment     proceedings
were readied against him. Since he was well abled to defend himself against
this false accusation,   the prosecutors    withdrew their charge and instead
sought the passage of a bill of attainder to punish Wenworth. The King
under heavy pressure signed the bill. Consequently, Wenworth was beheaded
without trial or jury.l5

      The flux of Englishmen into the new World to flee religious, political
or economic persecutions or to seek better opportunities in life or for other
reasons, carried with it such English institutions which neither time nor
strange environment could radically alter. Together with the better institu-
tions, the un better ones could not be avoided.

       Even in the colonies, bills of attainder became convenient tools of
persecution.  In 1777, Jefferson, himself a would-be victim of a bill of
attainder in England, wrote a bill of attainder for an outlaw in Virginia.
Earlier, in 1700, an act was passed in New Yark making it criminal for a
Roman Catholic priest to remain in the colonies.16 In October 22, 1779, the
New York State legislature passed a typical bill of attainder,17 which was
titled: "An Act, for the fortfeiture and sale of estates of persons who have
adhered to the enemies of this State, and for declaring the sovereignty of the
people of this State with respect to property within the same." This Act, draw-
ing a list of seventy three persons, designating them by their' names and the
titles and offices they have held, (they were all promient persons, former
justices, mayors, barons and baronesses, members of the landed aristocracy
and rich merchants)      declared them "ipso facto convicted of the offense
(being enemies of the State), and that all properties of the same persons
severally and respectively, whether in possession, reversion or remainder,
within this State, on the day of the passing of this Act, shall be and hereby

    15 Ibid.
    16 Colonial   Laws of New York, I, 428.
    17 Laws of    New York, Ch. XXV, Third Session.
are declared to be forfeited to, and vested in the people of this State".18 An
added cruelty was the provision in Section 2, declaring the same persons
"forrever banished from this State, and each and every of them who shall
at anytime hereafter be fOlmd in any part of this State, shall be and are
hereby adjudged and declared guilty of felony, and shall suffer death as in
cases of felony without benefit of clergy."
      Such statute would undoubtedly be declared unconstitutional by an
enlightened court applying an express constitutional prohibition against bills
of attainder.
      In !the United States, the case of Marbury v. Madison19 (Feb. 24, 1803)
penned by Justice Marshall became the first precedent on the power of
judicial review. The doctrine enunciated is a general and essential prin-
ciple in every constitutional issue: that where an act of a legislature is con-
trary to a provision of the federal constitution, the courts mus~ disregard
such law and declare it void.
      During the American Civil War (1861-1865), notably towards the end,
bills of attainder were used to punish confederates, collaborators and sym-
pathizers. In 1865, Missouri embodied in its constitution a clause requiring
voters and candidates and specified classes of professionals including lawyers
and clerymen to declare, under oath, that they have not adhered in word or
deed to any cause rebellious of the Government of the United States (mean-
ing the triumphant Union). Such an oath was a sine qua non to the exercise
of the covered professions. John CUmmings, a Catholic priest, was convicted
for preaching his religion without first having taken the oath.
     In 1867, the Supreme Court, in Cummings v. Mlssouri,20 handed down

the leading precedent on a bill of attainder case. It declared the Missouri
Constitutional clause a bill of attainder and thus unconstitutional.
      On the same significant day, the Court in Ex Parte Garland,21 declared
the Federal' Test Act of 1865 a bill of attainder. This Act also required
certain government officials and lawyers intending to practice in federal
courts to take an oath that they had "voluntarily given no aid, countenance,
counselor enoouragement to persons engaged in armed hostility .... neither
sought nor accepted, nor attempted to exercise the functions of any office
whatever, under any authority or pretended authority in hostility to the
United States." Augustus Hill Garland, a prominent lawyer (he was also a
former member of the lower house of the Confederate Congress though he
opposed secession before the Civil War; he was pardoned for taking part
in the "Late Rebellion" by President Andrew Johnson) went into federal
practice in 1866 without the federal test oath. He was upheld by a 5 to 4
    18Sec. 1.
    191 CRANCH 137, 2 L. Ed. 60 (1803).
    20Supra, note 13.
   214  Wall. 333, 18 L. Ed. 366 (1867).
majority decision. On the issue of his having been a confederate solon, the
Court said, the clemency given by the President had eliminated the penalty
ror such activity.

2. Cummings and Garland: the Temper of Politics
     The Cummings and Garland cases were decided at a time when there
was an open breach of confidence between the executive and the legislative
branches of the United States federal government.
      When Lincoln died in April 15, 1865, Vice-President Andrew Johnson
became president six days after General Lee surrendered at Appomattox
which virtually ended the war. The year marked the beginning of a bitter
struggle within the Union itself, this time between and among loyalists. The
controversy centered on what to do with the confederate State. Johnson, more
oft a political pragmatist, wanted a restoration of the Southern States to their
former pre-civil-war status. The Republican 'Radicals", a strong sector in
Congress, wanted the entire reconstruction of the southern states where the
negro was to be given the right to vote. This group was motivated by mixed
feelings of hatred against confederates and practical considerations of the
negro vote.22
      This being the case, the judiciary was left in-between two hostile camps
which both tried to influence it but in vain. For instance, when Justice John
Carton died in May, 1865, -President Johnson would have had the first op-
portunity to appoint his choice to the Supreme Court. He nominated Attorney
General Henry Stanberry to the vacant post. Congress, instead of acting on
this nomination, passed a law reducing the number of justices in the Supreme
Court from ten to eight. When Justice Wayne died, the vacancy was sup-
posed to be two but they were in effect abolished by the new law.23
     Inspite of these attempts to undermine the independence of the judiciary,
the Supreme Court, as in the cases of Cummings and Gorland proved inde-
pendent. These decisions threatened to a considerable extent the Radical
program which contemplated the purging of ex-confederates and their sym-
pathizers from the Government.
      The crucial significance of these cases needs no emphasis. They were
the first Supreme Court decisions on a bill of attainder question. Despite the
unfavorable temper of post-civil war politics, the Supreme Court withstood
any illegitimate pressure. It was a time when political resentments were still
fresh and strong. Vengeance was sought by those who could not easily forgive.
Those who won the spoils were confused as to what correctly was to be done
with them. Again, bills of attainder: were passed in the thought that they may
MENT 478 (1948).
     23 Ibid.
legitimatize suppression in the guise of law. Fortunately, as in Cummings
and Garland, there was no want of greater Americans to defend their Cons-
titution no 'matter what the consequences may have been.

3. The Lovett and Subsequent            Cases

      Seventy nine years after Cummings and Garland, the Supreme Court
again declared a federal statute a bill of attainder. Three government em-
ployees, Goodwin Watson, William Dood, Jr., and Robert Morso Lovett,
were alledgedly found guilty of subversive activities by the House Committee
on Un-American Activities. A clause was included in the Urgent Deficiency
Appropriation Act of 1943 providing that no funds shall be paid out as
salaries for the services of these men unless they were re-appointed before
November 15, 1943 by the President with the consent of the Senate. In eff~ct,
they were thrown out of federal employment. They filed suit in the Court of
Claims for the recovery of compensation for services already rendered. The
Supreme Court affirmed the lower court's decision in favor of the claimants.
Justice Black said that the particular provision in the Appropriation Act was
a "congressional proscription of Lovett, Watson and Dodd, prohibiting their
ever holding a government job."24

     A recent American case on a bill of attainder issue is United States v.
Brown.25 Here the Court struck down a section in the Ladrum-Griffin Act
as a bill of attainder. Brown, a Communist Party member, was convicted in
the lower court for "knowingly and wilfully serving as a member of an
executive board of a labor organization, while still a member of the Com-
munist Party, in wilful violation of Title! 29, United States Code, Section

              Congress undoubtedly possesses power under the Commerce Clause to
        enact legi'slation designed to keep from positions to bring about political
        strikes. In sec. 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) shaH not hold union office ane! leave to
        court and judiciaries the job of deciding what persons have committed the
        specified acts or possessed the specified characteristics. InSkad, it designates
        in no uncertain terms the persons who possess the feared characteristics and
        therefore can not hold union office without incurring criminal liability-
        members of the Communist Party."u

   24 United States v. Lovett, 328     U.S., 303, 90 L. Ed. 1252, 66 S. Ct. 1073 (1946).
   25381 U.S. 437, 14 L. Ed. 2d        484, 85 S.Ct. 1707 (1965).
   26 Ibid.
     The court pointed out that mere membership in the Communist Party or
any other association can not be the equation of the substantive evil which
Congress sought to remedy.

4. The Bill of Attainder      in this Jurisdiction

      The Philippine Constitution provides: "No ex post facto law or bill of
attainder shall be enacted. "2'7 This prohibition is the result of American con-
quest. Determined to shape the destiny -of this nation, the United States at
the close of the Spanish-American war, declared in the Treaty of Paris, its
unequivocal intention to extend sovereignty over these islands.

      Consequently, Americans were to bring here 110t only their physical
presence but likewise their political, economic and cultural institutions.

     American   rule in the Philippines        was to last for almost half a century
(1898-1946). It waS! a condition precedent to the granting of independence
in 1946 that a bill of rights similar to that found in the constitution of the
United States would be incorporated in the Philippine Constitution.28 Delegate
Jose P. Laurel, Chairman of the Committee on the Bill of Rights said:

     So high is the regard of the American; people for invidiual rights that the
     United States Congress in enacting our Independence Law, imposed as a
     condition the insertion in our Constitution of a Bill of Rights.29

     There can also be no doubt that when the Constitutional Convention
of 1936 adopted the bill of rights, it was well aware of its constitutional
meaning and long historical background:

     ThQ principles have been left, couched in a language expressive of their
     historical background, nature, extent and limitations as construed' and in-
     terpreted by the great statesmen and jurists who have vitalized them in
     the course of time.30

       Since there is virtually a dearth of jurisprudence on a bill of attainder
in this jurisdiction, American jurisprudence should provide us some guide-

      There are only two Philippine Supreme Court decisions on a bill of
attainder question: People v. Carlos 31 and Montenegro v. Castameda.32

     In People v. Carlos,33 the accused wanted the Court to set aside the
People's Court decision convicting him of treason. He alleged, among other

    2'1 Art. III, sec. 1, par. 11.
    285 CONSTITUTIONAL      CONVENTION RECORD, Journal     No. 90, 608-610 (November
19, 1934).
    29 Ibid.
    30 Ibid.
     3178 Pbil. 535 (1947).
    3291 Phil. 882 (1952).
    \13 Supra, note 31.
things, that the People's Court Act 34 was unconstitutional. He specifically
assailed the provision in the Act which allowed military authorities to de-
tain persons accused of treason for a period not exceeding six months
hefore delivering them to the judicial authorities. This, according to him,
was inflicting punishment without trial and hence a bill of attainder. To
this contention, the Court replied that a bill of attainder is a legislative
act which inflicts punishment without trial but the allowance of a six-month
detention before trial "was not punishment but a necessary extension of
the well-recognized power to hold a criminal suspect for investigation".
       In Montenegro v. Castaneda 35 the Court emphasized that "the con-
titutional prohibition against a bill of attainder applies only to statutes",
hence, "the presidential proclamation suspending the writ of habeas corpus
does not partake of a bill of attainder."
     Justice Fernando in his recent book, The Bill of Rights, commented
on this case:
     While on its face such a view may be in accordance with the literal lan-
     guage of the Constitution, a different conclusion could have been reached,
     more hospitable in scop,e to the avowed objective of this provision, if the
     proclamation decreeing the suspension, which realistically is the law for
     all those embraced therein, were considered in the nature of a legislative
     act. Then there would be no obstacle to the Supreme Court examining in
     depth the argument as to its alleged nullity on this ground.36

      An examination of these two cases will show that although they can
offer but little help in the determination of whether the Anti-Subversion 'Law
is a bill of attainder or not because of the variance of the facts and the
difference in the particular statutes put to question, the principles and doc-
trines are well enunciated. They provide us the framework with which we
can objectively study the constitutionality of the Anti-Subversion Law.

      An equally important consideration in the analysis of the Anti-Sub-
version Law is non-legal. It calls for the understanding of the essential
characteristics of the bill of attainder as it evolved gradually, fwm its
Anglo-American origin to its modern day concept. The peculiar facts sur-
rounding a bill of attainder case should not be taken out of context from
the prevailing political and historical tempers of a time to which they have
their logical relations.
    The history of a bill of attainder bears witness to its illegitimate birth.
Conceived in the wombs of legislative power by seeds of ill motive, both
    34 Com. Act No. 682   (1945).
   35 Supra, note 32.
   36 At 249.
King and Parliament wielded it as a seemingly legitimate weapon or license
to legally persecute enemies and dissenters.
      Originally, it was an act of parliament convicting a person without
judicial trial whatsoever. The case of Wenworth reveals essentially the true
nature of such a bill.
     In the colonies and during the American Revolution, the power wield-
ers, including Jefferson, enacted bills of attainder to facilitate the "legal
disposal" of the enemies to their cause. It was similar during the American
Civil War and immediately afterwards.

     In 1867, in Cummings v. Missouri,37 an independent Court nullified
the conviction of a priest under a statute which required test oaths of alle-
giance. On the same day, in Ex Parte Garland,38 similar test oaths were
declared as having the elements of a bill of attainder. In 1946, in U.S. v.
Lovett,39 three members of the Communist Party were protected by the
Supreme Court against the undue deprivation of their employment. And in
1965, in U.S. v. Brown,40 mere membership in the Communist Party or
any political organization was held as not the equation of the substantive
evil which Congress may seek to remedy.
     The modern day form of a bill of attainder is even more dangerous.
Unlike the original, ancient, English bill of attainder, the modern form does
not convict a person entirely without judicial trial. The accused is still given
a day in court with all the procedural requirements of a seeming "due
process". But what is abhorrent is precisely this subtlety and pretention.
Despite the judicial trial, the guilt of the accused is ipso facto established
by legislative fiat. A bill of attainder is thus violative of due process and
the principle of separation of powers. In a classic bill of attainder, the
solon assumes the functions of having enacted the law and interpreted the
law. In short, he's both solon and judge.

1. The Legal Argument
    The Act is a bill of attainder. The very title singles out the "COm-
munist Party of the Philippines and similar associations" and "penalizing
membership" therein.
     In its preamble, it makes a finding of fact that the "Communist Party
of the Philippines although purportedly a political party, is in fact an or-
    37   Supra,   note   13.
    38   Supra,   note   21.
    39   Supra,   note   24.
    40   Supra,   note   25.
'ganized 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". (Underscor-
 ing supplied). In section 2, it repeats the same finding of fact.
     It defines the Communist Party of the Philippines as "including the
organizations now known as the Communist Party of the Philippines and
its military arm, the Hukbong Magpapalaya ng Bayan, formerly Hukbala-
hap, and any successors of such organization." 41
      It penalizes mere membership by a penalty of arresto mayor and with
 disenfranchisement and permanent disqualification to any public office, whe-
ther elective or appointive. For a seoond conviction, the penalty is raised
to prision correccional. It is raised to prision mayor for other subsequent
convictions. An alien oonvicted under the Act shall first serve the sentence,
 after which he shall be deported. All ranking officers and leaders shall
be punished by prision mayor to death with all the accessory penalties pro~
vided in the Revised Penal Code. The same penalty shall be imposed upon
a mere 'member "who takes up arms against the Government". Any oons-
pirator shall be punished by prision correcional to prisiol/1 mayor with all
the accessory penalties in the Penal Code.
     In section 5, the normal procedure of instituting the action is found
with the proviso that the "preliminary investigation of an offense defined and
penalized herein by prision mayor to death shall be conducted by the proper
Court of First Instance."
      Perjury is penalized in section 6 and in sectioIlJ7. As in treason cases,
it requires the testimony of at least two witnesses to the same overt act
or on confession of the accused in open court, to sustain a conviction
on any of the offenses where the penalty is prision mayor to death.
     A grace period of thirty days is offered within    which a member may
renounce his membership in writing and under oath       before a mayor, gov-
ernor or person authorized to administer oaths.          Such person shall be
exempted from liability under the Act but not under     any other existing law
for crimes committed before the Act took effect.42
       It provides the manner of interpretation: "nothing in this Act shall be
interpreted as a restriction of freedom of thought, of assembly and of
association for the purpose not contrary to law as guaranteed by the Cons-
titution." 43
    41   Sec. 3.
    42   Sec. 8.
    43   Sec. 9.
     The Act concludes from its finding of fact in the preamble that the
existence of the Party is "a clear, present and grave danger to the security
of the Philippines . . . that its organized, systematic, and persistent sub-
version national in scape but international in direction ... (is) a continu-
ing menace to freedom and security of the country."
      By this, the Law has established a oonclusive presumption of organiza-
tional guilt. The named and described organizations are guilty of subversion.
It is just a matter of proving membership in such organizations for the ac-
cused to be convicted.
     To support this contention that is was the evident intention of the
sponsors of the bill to create a oonclusive presumption of guilt, pertinent
excerpts from the Congressional Records are quoted, to wit:
     Senator Pelaez . . . . Now, under this bill, Congress having made a
     finding that the Communist Party . . . . is in fact an organized cons-
     piracy to overthrow the Government, all that the fiscal will have to prove
     in a prosecution under this bill is that the defendant has been a member
      of the party. That is a punishable act, because the theory of the bill is
     that the existence of thel so called Communist Party . . . presents a clear
      and present danger to the security of the country . . . .
      Senator Pelaei . . . We had many prosecutions for membership in the
      organization which was then known as the Makapili. Now, in every pre-
     secution against the Maka:pNi member, I recall that that we had to call
     witnesses to testify as to the nature of the Makapili and yet it was known
     that the lVlakapili was really a treasonous organization. So, in every case
     we had to call the same witnesses, and so it became quite difficult because
     the evidence of the nature of the Makapili was required in every case.
     'Now, that would be done away with here-the           requirement that the
     nature of the so-called Communist Party of the Philippines has to be
     proved in each particular case-that is already done away with.

      That this was the legislative intent is even made clearer by consider-
ing the time element when the law was passed. As already pointed out
in the past pages but which we shall now relate. to our topic, the Law
was passed at a time when there was a communist phobia not only in the
Philippines but in the United States and the rest of the so-called "free
world". The "cold war" was at its "coldest' with both communist and
western camps sowing intrigues everywhere. Western imperialist powers saw
to it that communism was repulsed at all fronts both through military and
propaganda means. Puppet regimes were set up and utilized to lend not
only military and moral support but to contain communism wherever it
may be found. And so the Philippines, which never truly understood the
politics of world powers, and toeing the line of American Policy had to
send troops to Korea and pass an Anti-Subversion Law. The' extreme irony
of colonial puppetry however, is that the colonized tends to overdo things
imitated from the colonizer. Thus, while the United States merely required
the registration of American communists, the Philippines sought to legally
wipe out the local communists. If there was a witch-hunting committee in
the United States Congress by the name of Congressional Committee on
Un-American Activities, there was to be a local branch in the Philippines-
the Congressional Committee on Anti-Filipino Activities.
      By the time the Law was passed, the local communists had been con-
siderably crippled but according to the Committee on Anti-Filipino Acti-
vities, there was a shift in the strategy of the Communist Party from armed
struggle to parliamentary struggle. The truth was that our solons were
afraid to meet communists in the electoral process for lack of meaningful
alternatives to the communist challenge. The communists had something
concrete to offer.

      The cases of Cummings and Garland,44 Lovett 45 and Brown,46 are ex-
plicit in their interpretations of a similar provisions in the United States
Constitution. The principles are reiterated in this jurisdiction by People v.
Carlos 47 and Montenegro v. Castaneda.i48 Textwriters and legal scholars
have elucidated the concept of a bill of attainder. Oili the basis of all these,
the Anti-Subv'ersion Law fits into the classic pattern of a bill of attainder.

2. The Question of Ambiguity
     Sections 2 and 4 of the Law suffer from unconstitutional vagueness.
     Section 2 provides:
         The Congress hereby declares the Communist Party of the Philippines to
         be an organized conspiracy to overthrow the Government . . . . 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.

     The vagueness in this provision lies in tbe inaccuracy of its own find-
ing of fact. As already stated, the Law itself makes a finding of fact "the
Communist Party . . . is an organized conspiracy to overthrow the Gov-
ernment . . . etc." This is inaccurate because while it may be true that
the Communist Party is "on organized conspiracy to overthrow the Gov-
ernment," it does not have for its purpose the establishment of a totalita-
rian regime subject to alien control and domination.
      The Constitution of the Communist Party of the Philippines (1946
edition) states, in its preamble, the purpose of the Party:
    44 Supra,   notes 13 & 21.
    45 Supra,   note 24.
    46 Supra,   note 25.
    47 Supra,   note 31.
    48 Supra,   note 32.
     The Communist Party of the Philippines (Merger of Socialist and Com-
     munist Parties) is the! political party of the Filipino working classes based
     on the principles of scientific Communism and Marxism-Leninism. It fights
     for the immediate 'and basic wants of the workers, peasants and all ele-
     ments exploited by capitalists. As the vanguard of the working classes,
     it stands in the forefront of this struggle.
     The Communist Party will fight for the democratic rights won by the
     Filipino people and will defend them against enemies desiring to crush
     democracy and all national freedoms. The Party leads the struggle against
     impel'ialism, exploitation of colonial and semi-colonial countries, division
     of classes and nations and all forms of chauvinism.
     In the struggle for .democracy, the independence and progress of the
     classes, the Communist Party supports the democratic principles of Boni-
     facio, Rizal, Luna and other heroes and also the teachings of Crisanto
     Evangelista and other working class leaders.49

      The adoption of the principles of scientific Communis'll, Marxism and
Leninism could not amount to placing the Philippines under the control
and domination of an alien power. In the same way that our Republic is
based on the principles of liberal democracy and constitutionalism found
in the writings of Locke, Montesquieu, the Federalists and others in the
democratic tradition, Communists believe in the principles laid down by
Marx, Engels, Lenin and until recently Mao Tse-tung. They believe in
the universality of these principles. Does adoption necessarily follow the
selling of our patrimony to an alien power?
      The attachment of the local Communist Party with foreign communist
parties}particularly those of Russia and China is understandable in the face
of imperialist attachment and control of republican governments in the
free world which include the Philippine government. If this Government
has cordial and special relations with the United States, why should we
condemn the Communist Party for cultivating friendly relations with all
countries? In fact, the present Marcos administration, in its effort to sal-
vage the economy by looking for all possible sources of foreign aid and
loans, is now about to open trade and diplomatic relations with Russia and
some East European cO'llmunist countries.
     The same finding of fact in section 2 falls down when we examine
the wartime record of the Communist Party. The People's Anti-Japanese
Army or Hukbo ng Bayan Laban sa Hapon (HUKBALAHAP) was estab-
lished during the Pacific War to serve as the military arm of the Commu-
nist Party :lid to forge a united. front against the Japanese.
     The object of this army is to drive out the Japanese fascist aggressors
     from the Philippines; to safeguard lives, properties and democratic rights
     of the people, and to assure the territorial integrity of the people and the
     independeIIK:e of the Philippines . . . The Army cooperates with the
         United StateS! Armed Forces in the Far East (USAFFE), for the resistance
         against the common enemy-the      Japanese aggressors.6'0

According to Bernard and Laurence Salisbury, in Cross-Currents in the Phil-
ippines,51 the Huks had 1,200 engagements with the enemies (Japanese
and mercenary forces) and had inflicted some 25,000 enemy casualties.
      Thus, contrary to section 2, this war time record of the Communist
Party proves them to be nationalists. Alfredo Saulo, a former Huk and
political prisoner for eight years, now lecturer at the Ateneo University,
makes the following appraisal:
               It would be incorrect to say that the communists and their Huk fol-
        lowers have been fighting for the past twenty years solely for the com-
        munist cause. The author (Saulo) has found out that communism in the
        Philippines, as in all developing countries freed from the yoke of colo-
        nialism, is still in the nationalist phase of development. The local com-
        munist movement, indeed, cannot just skip this preliminary phase and
        go full blast into communism. What transient observers may find hard
        to understand is the fact that Filipino Communists themselves do, not be-
        lieve that they will see communism fully established in the Philippines
        in their own lifetime. This belief is not defeatist but realistic and is rooted
        in the practical experience of the Soviet Union which, after 52 years of
        unintermpted communist rule, is still far from achieving full-pledged
        oommunism. Technically, Russia today is a socialist, not communist

               Nationalism is the most overriding imperative for communism in
         the Philippines today. Filipino Communists advocate nationalism-and       in-
         deed they mean it-to lay the groundwork for the establishment of so-
         cialism, the transition stage to communism proper. To say, then, that
         they are merely riding on the crest of nationalism or using it to serve
        their communist ends would be a great mistake. Filipino Communist,
         it must be borne in mind, are! nationalists by force of necessity. It is pre-
        cisely their communist ideology that compels them to be sinoere and
        militant nationalists even to the exclusion of all other persuasion and 10-
        A ranking communist leader once said that he would not hesitate to
        fight the Russians or the Chinese if they should come and invade the
        Philippine. However, another communist leader, to forestall a possible
        'apostasy and to safeguard the communist principle of international soli-
        darity of the working class, hastened to add that the Russian or Chinese
        communists would never come to dominate or colonize their Filipino

   50 Ibid, p. 82.
   51 cited in Saulo. p. 43.
   52 SAULO, op. cil., viii.
   53 IhicA
   54   Ibid.
      To the question "How are we to establish in this country, so long ex-
ploited by both foreign and native oppressors, a society of justice and peace,
based on cordial cooperation among all social ranks and levels." 55 Father
Horacia de la Costa observes:
     To this crucial question, the Communist Party of the Philippines had a
     clear and definite reply-a   set of goals, a plan, and a time-table.56

      The true purpose of the Communist Party of the Philippines became
clearer and ideologically concrete with the Party's re-establishment in 1968
and with the drawing of a new platform and program of action.
     Amado Guerrero, chairman of the Party's Central Committee and un-
disputably the Party's leading theoretician, sets out in concise language,
the basic tasks of the People's democratic revolution".
     The program for a People's Democratic Revolution in the Philippines,
     which is the programme of the Communist Party of the Philippines, com-
     prehenSiively lays dbwn the general and specific tasks not only of the
     proletarian revolutionary party but also of the entire revolutionary mass
     movement. In another summary form, let us state the basic tasks of the
     people's democratic revolution . . . the Central task of the Philippine
     revolution in the present stage is the overthrow of U.S. imperialism, feudal-
     ism and bureaucract capitalism, the seizure of political power and its con-
     solidation. Our purpose is to liberate the Filipino nation from foreign
     oppression and also the great masses of the Filipino people, especially the
     peasantry, from feudal oppression.57 (Underscoring supplied).

      The objective reality of American imperialism had earlier been ex-
posed by the post-war nationalism of Claro M. Recto. The issues of U.S.
imperialism, feudalism and bureaucrat capitalism had been concretized in
the post-1960's. Where Recto left, the young intellectuals in the universities
re-studied his position and correctly concretized imperialism, feudalism and
bureaucrat capitalism as the proper and logical issues of contemporary
Filipino nationalism.
      Viewed from any angle, section 2 of the Anti-Subversion Law can
not be correct and accurate as against the truth of history and objective
     Section 4 is also ambiguous.
     Section 4, in part, provides:
     "...  After the approval of this Act, whoever knowingly, wilfully and by
     over acts affiliates himself, becomes or remains a member of the Com-
     munist Party of the Philippines and/or its successors or any subversive
     association as defined in section 2 hereof shall be punished by the penalty

   55 I bid at vi.
   M Ibid.
          of arreslo 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 prison cor-
          reccional, and in all subsequent convictions the penalty of prision mayor
          shall be imposed . . "

     The pharse "overt acts" is ambiguous because it is not defined by
the Law. Would it be sufficient to convict an accused for merely having
sworn to an oath of membership in the Party or association or for having
one's name listed in an official roster?
     It is pertinent to point out for a comparative analysis that in section
5 of the U.s.. Communist Control Act of 1954, a listing of what are "overt
acts" is drawn. The original bill (Bill No. 6584) of the Anti-Subversion
Law contained a similar listing but in the final draft it was deleted. What
could have been the purpose or legislative intent of such deletion?
      The Law is a penal statute. It is a well known doctrine that a penal
statute must be certain and accurate in its proscription. "No one may be
required at peril of life, liberty or property to speculate as tio the meaning
of a penal statute." 58
      Any uncer,tainty in the provisions of a penal statute cuts deep into
the elementr)" principle of due process. "A statute which either forbids or
requires the doing of an act in terms so vague that men of common in-
telligence 'must necessarily guess as to its meaning and differ as to its ap-
plication, violates the first essential of due process of law" .59
      Due prooess as succinctly described by Justice Fernando is:
      "...    responsiveness to the supremacy of reason, obedience to the dictates
      of justice. Negatively put, arbitrariness is ruled out and unfairness avoided.
      To satisfy the due process requirement, official action, to paraphraSe! Car-
      dozo, must not outrun the bounds of reason and result in sheer oppression.
      Due process is thus hostile to any official action marred by lack of reason-
      ableness. Correctly, it has been identified as freedom from arbitrariness.
      It is the embodiment of the sporting idea of fair play. It exacts fealty 'to
      those striving for justice' and judges the act of officialdom of whatever 'in the light of reason drawn from considerations of fairness that
      reflect traditions of legal and! political thought'. It is not a narrow or 'tech-
      nical conception with fixed content unrelated to time, place and circumstances'
      Questions of due process are not to be treated narrowly or pedantically
      in slavery to form or pnrases."60

    58    Lanzetta v. New Jersey, 306 U.S. 451 at 458, 59 S. Ct. 618, 83 L. Ed. 888
     ,59 Connally v. General Construction Co., 269 U.S. 386, 391, 46 S. Ct. 126, 70
LEd. 322 (1926); Cline v. Frink Dairy Co., 274 U.S. 445, eonally (1927); Strom-
berg v. California, 283 U.S. 359 51 S. Ct. 532, 75 L. Ed. 1117 (1931); Herndon
v. Lowry, 301 U.S. 242 57 S. Ct. 732, 81 L. Ed. 1066 (1937); Cramp v. Board of
Public Instruction, 368 U.S. 278 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961); U.S. v.
National Dairy Products, 372 U.S. 29, 831 S. Ct. 594, 9 L. Ed. 2d 561 (1963).
     60Ermita-Malate Hotel and Motel Operators Association v. City Mayor, G.R.
No. 24693, July 31, 1967, 20 SeRA 849 (1967).
     The danger in a penal statute with vague provisions lies in its inter-
pretation and ultimately its application. If the provisions are vague, the
judge is left to surmise or speculate as to their meaning, thereby giving
him an undue discretion. The accused is virtually handed out to the mercy
of judicial legislation. This is contrary to the principle of separation of
powers. An unjust judge would have the occasion to interpret and apply
the law unjustly.

      That the Act is superfluous is patent in the light of specific provisions
in the Revised Penal Code punishing rebellion, sedition and any other con-
ceivable act against the State or public order. These provisions are not
bills of attainder and are adequately clear as to their proscriptions.
      We have Art. 147 penalizing the founders, directors, presidents and
members of associations totally or partially organized {or the purpose of
committing any of the crimes punishable under the Code or for some pur-
pose contrary to public morals. This provision does not single out or spe-
cifically name an organization. It punishes membership in any illegal as-
sociation e.g. a carnapping syndicate.
      Art. 135 punishes rebellion or insurrection. The basis of conviction
under this provision must conform, among other requisites, to a strict de-
finition of the oQ'enses of rebellion or insurrection.
     Art. 136 punishes conspiracy and proposal to commit rebellion or in-
      Art. 137 punishes public officials and employees "who have failed to
resist rebellion by all means in their power, or shall continue to discharge
the duties of their offices under the control of the rebels or shall accept
appointment to office under them."
     Art. 138 punishes inciting to rebellion or insurrection.
     Art. 139 defines sedition, and Art. 140 prescribes the penalties for
its commision. Art. 142 punishes inciting to sedition.
     Art. 117 penalizes espionage, which is supplemented by Common-
wealth Act No. 616.61
     Art. 114 penalizes treason and Art. 116, misprison of treason.
     There is adequate jurisprudence in the interpretion and application
of these provisions. For instance, in People v. Nabong,62 the accused was
convicted for having advocated in a public gathering the overthrow of
    61 Passed June   1, 1941.
    6257 Phil. 455   (1932).
    the Goverll'ment. In People v. Bagalawis,f>3and in Peopie v. Villanueva,64
    the Supreme Court denied the defense of duress or uncontrollable fear and
    convicted the defendant of treason for having connived with the Japanese.
    In People v. Almazan,65 four hundred sakdals were convicted of rebellion
    for fighting constabulary troops and taking possession of the municipal build-
    ing and proclaiming the independence of the Philippines. In People v. To..
    gonon,66 and in People v. A garin, 67 although the court ruled that robbery
    and murder when committed in furtherance of the rebellion, are not se-
    parate crimes, it convicted several Huks of simple rebellion. In an early
    case, U.S. v. Vegara,68 the court convicted the accused of conspiracy to
    commit rebellion for "organizing Filipino soldiers, recruiting various per-
    sons to become members which held several meetings, and soliciting money
    to overthrow the Government". The accused were convicted of sedition
I   in the case of U.S. v. Lapus, et. al.,69People v. Cabrera,70 People v. Umali,71
    and People v. Tahil and Tarson.72 In People v. Evangelista,73 the Court
    outlawed the Communist Party of the Philippines. But this was by judicial
    not legislative fiat.
          These provisions and the judicial support they have, are adequate to
    render unnecessary any Law like the Anti-Subversion Law. The person ac-
    cused of having violated any of these provisions, is afforded the safeguards
    of due process. For instance, he shall be presumed innocent in all cases
    until proven to be guilty beyond reasonable doubt. Under Republic Act No.
    1700, the mere appearance of the name of the accused in the list of mem-
    bers of the Communist Party or any similar organization is sufficient to
    convict the accused.
          The right· of the State to contain subversion may prove legitimate, but
    it cannot "be pursued by means that broadly stifle fundamental personal
    liberties when the end can be narrowly achieved." 74

         Perhaps the strongest reason against the Anti-Subversion Law is one
    which tackles the most elementary factor in any issue: the question of
    definition. "Subversion" as the violent overthrow of the Government is too
    narrow a defi..'1itionbecause it makes any ruling class for that matter, ne-

        6878 Phil. 174 (1947).
        ;64G.R. No. 9529, August 30, 1958, 56 a.G. 923, 104 Phil. 450 (1958).
        65 G.R. No. 44278, February 9, 1939 37 O.G. 1932 (Aug., 1939).
        66 G.R. No. 8926, June 29, 1957 54 a.G. 8238 (Dec., 1958)
        67G.R. No. 12298 September 29, 1960 60 a.G. 3753 (Dec., 1958).
        683 Phil. 432 (1904).
        694 Phil. 147 (1905).
        7043 Phil. 64 (1922).
        71 G.R. No. L-5803, Nobember 29, 1954
        72 52 Phil. 318 (1928).
        73 57 Phil. 375 (1932).
        '74Shelton v. Tucker, 364 U.s. 479, 488, 5 L. Ed. 2d 231, 237 81 S. Ct. 247
cessarily the subverted. The Law defines "subversion" as an "illegal means
to overthrow the Government". The Government must necessarily be the
subverted. The definition does not contemplate the subversion of the peo-
ple or the ruled by the government.
     But what has reality to say on the application of this definition? That
the Filipino people have never been the subversive but are instead the sub-
     Political thought from Classical Greek and Roman antiquity and like-
wise from the ancient philosophers of the Orient, up to modern political
science, observes the social phenomena of subversion ·as occuring when
the ruling class can no longer rule at the expense of the ruled. The ruling
class becomes unbearable and the tolerance of the ruled burst into sub-
versive action. Subversion then merely becomes a violent reaction to the
violence of the rulers.
      When government no longer rules for the people, it must by this choice
rule for itself. This in essence is state violence because the end for which
government is instituted is not achieved but subverted. When such violence
reaches unmeasured proportions and the people are on the brink of ma-
teria~ extinction, subversion becomes a matter of survival. The violence to
be exerted then must not only be equal to the violence of the Government
but must be exceedingly greater.
     Locke, a representative of the democratic tradition says:
     ... Great mistakes in the ruling part, many wrong and inconvenient laws,
     and all the slips of human frailty will be borne by the people without
     mutiny or murmur. But if a long train of abuses, prevarications, and arti-
     fices, all tending the same way, make the design visible to the people, and
     they can not but feel what they lie under, and see whether they are going,
     it is to be wondered that they should then rouse themselves and endeavor
     to put the rule into such hands which may secure to them the ends for
     which government at first erected . . .. For when the people are made
     miserable, and find themselves exposed to the ill usage of arbitrary power,
     cry up their governors as much as you will for sons of Jupiter, let them
     be sacred and divine, descended or authorized from Heaven; give them out
     or what you please, the same will happen. The people generally ill treated,
     and contrary to right, will be ready upon any occasion to ease themselves
     of the burden that sits upon them.75

     Subversive words are found in the American Declaration of indepen-
     We hold these truths to be self-evident, that all men ar~ created equal;
     that they are endowed by their Creator with certain unalienable rights;
     that among these are life, liberty, and the pursuit of happiness. That to
      secure these rights, governments are instituted among men, deriving their
      just powers from the consent of the governed; that whenever any form of
      government becomes destructive of these ends, it is the right of the people
      to alter or to abolish it, and to institute a new government, laying its
      foundation on such principles, organizing its powers in such form, as to
      them shall seem most likely to effect their safety or happiness. Prudence,
      indeed will dictate that governments long established should not be changed
      for light and transient causes; and', accordingly, all experience hath shown,
      that mankind are more disposed to suffer, while evils are sufferable than
      to right themselves' by abolislllng the forms to which they are accustomed.
      But, when a long train of abuses and usurpations, pursuing invariably the
      same objects evinces a design to reduce them under despotism, it is their
      right, it is their duty, to throw off such government and to provide new
      guard fortheiri future security.76

     There can be no denying, therefore, that even the democratic tradi-
tion of Locke, Rosseau, the Federalists, and the constitutional ideas of
other great Americans, the foundation upon which this Republic claims
to be resting, sanction in no equivocal terms, the people's right to rebellion
or subversion.
      If this right is legitimate, as the law must ultimately stem from the
will of the people (salus populi es suprema lex), what anti-subversion law
shall declare an act, arising from this right, "subversive" and "unlawful"?

     We have discussed the arguments both legal and non-legal regarding
thet repeal of the Anti-Subversion Law. The Law is not valid because it
is a bill of attainder and is, therefore, unconstitutional. The Law is vague
and is against due process and the principle of separation of powers. The
Law is unnecessary because there are provisions in the Revised Penal Code,
which are not bills of attainder, but which punish every conceivable act
against the state. Lastly, the Law is not valid because it connives with
the government against the people. We have discussed the proposition
that a good government, attached and acceptable to the people. need not
fear subversion.
      About the strongest and only argument against the repeal of the Anti-
Subversion Law is the sovereign inherent right of the State to protect itself.
This right must be recognized. But the expression of this right cannot "be
pursued by means that broadly stifle fundamental personal liberties when
the end can be narrowly achieved." 77 The expression of this right in a
bill of attainder stifles the fundamental personal liberties of the citizen when
the end-to protect the State from subversion may be achieved by govern-
ment simply doing its essential task-to rule for the welfare of the gov-
    76July 4, 1776, 1.
    77 Shelton v. Tucker, supra, note 74.
erned. It would o nly be then that the protection which government so sa-
credly affords to its existence, will assume a concrete and valuable mean-
ing, not only to itseilf or the ruling class, but even more so to the people,
who instead of trying to subvert government and planning schemes to-
ward its downfall, would instead cherish and fight for it.
      Lastly, justice may not always be the motive of the lawmaker, but
It IS always for the law. Thus:, the law must not be an accomplice, nay, a
conscious conspirator to any treachery of government against the people.
When, a particular law is born oppressive, it must not perpetuate the whim
and ill motiv,e of those who enacted such law. It must, in self-negation seek
to extinguish itself, even if this would mean ingratitude to those who created
the law and disobedience to those who now wish to enforce its oppressive-
ness. For the continued existence of a bad law is always infectious of the
others. The entire legal system is blotted and is eventually shrouded with
illegitimacy. The people will equate the law with injustice and the govern-
ment which obstinately insists in upholding the law, must inevitably run the
risks of subversion.

Shared By: