Jose P. Laurel’s sponsorship speech on the Bill of Rights in the 1935 Constitution
MR. LAUREL. (Continuing.) Mr. President, I just want to say a few words, and I will be through.
The history of the world is the history of man and his arduous struggle for liberty. And the history of the Philippines is the history of the Filipinos and their gigantic struggle for emancipation. It is the history of those brave and noble souls who, in the ages that are past, have labored, fought and bled that the government of the lash — that symbol of slavery and despotism — might endure no more. It is the history of those great self-sacrificing men who lived and suffered in an age of cruelty, pain and desolation, so that every man might stand, under the protection of great rights and privileges, the equal of every other man.
Every right that has been won is held in sacred esteem and guarded with intense jealously by those who possess them. To protect and preserve those rights: such is the desire of the liberty-loving and the free. With this end in view, care has been taken to insert in constitutions what is commonly known as a Bill of Rights — a comprehensive statement of those invaluable conquests of the past.
The student of American constitutional history will recall that when the United States Constitution was submitted to the thirteen original states for ratification, it did not contain a full enumeration of ancient rights and that it was ratified only upon the promise that such an enumeration would later on be made. The promise was fulfilled by the first Congress in the form of ten amendments to the Constitution. The Bill of Rights in the Federal Constitution was, therefore, the product of popular demand, consciously and conscientiously made, as against the judgment of the Constitutional Convention of 1787. So high is the regard of the American people for individual rights that the Congress, in enacting the Independence Law, imposed as one of the conditions the insertion in our constitution of a Bill of Rights.
The Bill of Rights in Section 3 of the Jones Law, reproduced from similar provisions in American Constitution, both Federal and State, is well-nigh precise and comprehensive. The Committee on Bill of Rights has had a relatively facile work, in this connection, namely that of adoption and adaptation. Modifications and changes in phraseology have been avoided, whenever possible. The principles have been left couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists who have vitalized them in the course of time.
It will not be possible to indulge in a thorough discussion of our proposed Bill of Rights. Every provision therein contained has a historical background too long to narrate. With the indulgence of this body, however, I shall briefly state the sources and offer a few remarks.
I shall begin with that broad enunciation that NO PERSON SHALL BE DEPRIVED OF LIFE LIBERTY AND PROPERTY WITHOUT DUE PROCESS OF LAW NOR SHALL ANY PERSON BE DENIED THE EQUAL PROTECTION OF THE LAWS. This provision is so broad that it may rightly “embrace all our liberties, personal, civil and political.” (Gillespie v. People, 188 111. 176, 52 L.R.A. 283.) The provision simply means that all persons within the territorial limits of the country are protected in their life and limb, their rights by “due process of law.” The fundamental principle of “due process of law” has not been fully defined by the courts which have contented themselves in merely applying the principle to specific cases as they arise. (Twining v. New Jersey, 211 U.S. 78.) Lord Coke said that “due process clause” conveys the same meaning as “law of the land” used in the Magna Charta and the Petition of Rights. This interpretation has been accepted by the United States Supreme Court. (Murray v. Hoboken Land and Improvement Co., 18 How. 272, 15 L. ed. 372.) According to Daniel Webster in his classic argument in the Dartmouth College case, “by the law of the land is most clearly intended the general law — which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society.” (Cited in U.S. v. Ling Su Fan, 10 Phil. 104.) The clause on equal protection of the law seeks to abolish class distinction and was inserted in furtherance of the principle of liberty which is the greatest of all rights.
PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION. This provision while recognizing the sanctity of private property also recognizes the existence of the power of eminent domain inherent in sovereignty to be exercised by the government subject to the condition that just compensation be paid and the due process clause of the Constitution observed. (Visayan Refining Co. v. Camus, 40 Phil. 551.) Our Code of Civil Procedure lays down the manner by which the power may be properly exercised. (Sees. 241 et seq.) There are also special laws (Acts 1459, Sees. 79 et seq.; Acts 284, 1258, 2826.) Among the Romans, private property could be taken for public use only upon payment to the owner of a value estimated by “good men”. It is not surprising, therefore, to find in Article 249 of our Civil Code — which is of Roman Law origin — a provision to the same effect. Magna Charta provides that no one shall be deprived of his property except by the law of the land or by the judgment of his peers. The Code Napoleon (1807) which is also based on the Roman Law requires “a just and previous indemnity” in such cases. The Malolos Constitution expresses the same idea. (Title IV, Art. 17.) As proposed, the provision is the same as the last clause of the Fifth Amendment to the United States Constitution and the last sentence of the first paragraph of Section 3 of the Jones Law. According to our Supreme Court, just compensation means “a fair and full equivalent of the loss sustained.” (City of Manila v. Estrada, 25 Phil. 208.)
Personal security against unreasonable searches and seizures is a necessary requisite of liberty. Modification of the provision in the Jones Law on the subject is proposed to make it conform entirely to the Fourth Amendment to the United States Constitution which reads: THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALL NOT BE VIOLATED AND NO WARRANT SHALL ISSUE BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED.
Two things are prohibited by this provision. They are unreasonable searches and unreasonable seizures. Reasonable searches may be allowed and, if the thing sought is found, it may be seized. Searches and seizures are reasonable when there exists a probable cause therefor and they may be effected when a warrant is obtained for the purpose in the manner provided by law. But even with a warrant, entry into a dwelling is not always legal as when it is made to secure evidence to be used against the owner in a criminal case. (Gould v. U.S., 255 U.S. 298.)
It has been suggested that the issuance of search warrant be also conditioned upon the examination by the issuing magistrate of the complainant and witnesses and the taking of their depositions in writing. This requirement, however, is already found in Section 98 of our Code of Criminal Procedure and its insertion in the Constitution seems unnecessary. I would, however, offer no objection to the incorporation.
The “precise” warrant is characteristically and peculiarly Anglican. It arose out of a practice in England of issuing general warrants which authorized “searches in any place, for anything.” Even in the colonies, there was a practice of issuing writs of assistance so-called to revenue officers which empowered them to search places believed to contain smuggled goods. That practice was denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book.” (Boyd v. U.S. 616; U.S. v. de los Reyes, 20 Phil. 469.) These practices in England and the colonies were fresh in the minds of the framers of the United States Constitution and they surrounded the issuance of warrant with necessary safeguards against arbitrary police measures.
The “general” warrant received its fatal blow in the famous case of Wilkes. Lord Halifax issued a general warrant for the arrest of an unknown author of the libelous Number Forty-Five of the North Briton. No particular individual was described in the warrant but the police were empowered to arrest whomever they might think was guilty. Many innocent persons were arrested, and their papers were seized. Wilkes was not described in the warrant. His victory in that case was rightly called by Mr. Justice Bradley, “landmark of English liberty.” (Boyd v. U.S., supra.) The case of Wilkes is “sufficiently explanatory of what was meant by unreasonable searches and seizures.” (Ibid.)
It is interesting to note that the Spanish Constitutions of 1845 and 1876 prohibit the entrance into a private house “except in the cases and in the manner expressly provided by law.” This provision led to the insertion in the Spanish Penal Code (which was made applicable to the Philippines) of certain provisions penalizing violation of domicile and trespass upon the dwelling. The Malolos Constitution also provides for the inviolability of domicile, papers and effects. (Title IV, Art. 10.) But inviolable as the home may be, it can neither be made the shelter of “crime and bad faith” nor be converted into “a citadel for aggression” within whose walls is created disorder which affects the peace of the community. (U.S. v. Vallejo, 11 Phil. 193.) The Malolos Constitution provides that authorities, in pursuit of an offender found in flagrante who has sought refuge in his or another house, may enter said house for the purpose of apprehending the criminal. (Title IV, Art. 10.) And, under our existing laws, when a crime is committed in the presence or within the hearing of a police officer, the latter may make arrests without a warrant.
The Committee on Bill of Rights also recommends the insertion of the following precept: THE LIBERTY OF ABODE AND OF CHANGING THE SAME WITHIN THE LIMITS PRESCRIBED BY LAW SHALL BE GUARANTEED. One needs only direct his attention to countries where this right is withheld to find the necessity for such a provision in his own. Liberty carries with it the right of man to live where he thinks he can best pursue the ends of life. The right may, however, be restricted by the government to certain localities for reasons of public health or policy provided due process of law is observed. (Rubi v. Provincial Board of Mindoro, supra.) The Malolos Constitution in Article II, Title IV, allowed compulsory changes of domicile only “by virtue of a final judgment” by a competent court.
Although the right is deeply imbedded in the jurisprudence of both the United States and the Philippines the necessity for the insertion of this provision in this jurisdiction suggests itself. (Villavicencio v. Lukban, 39 Phil. 778.) The incorporation of a provision in the Bill of Rights guaranteeing the liberty of abode and of changing the same would serve to confirm and strengthen an existing right.
The privacy of correspondence and communication is expressly recognized, subject to the ever-pervading police power of the State. Letters and messages are usually carried by the agencies of the Government and unless adequate safeguards are provided for, their privacy may be wantonly violated and great harm inflicted upon the citizen as a result. The precept reads: THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE SHALL BE INVIOLABLE EXCEPT UPON LAWFUL ORDER OF THE COURT. This provision is not found in either the Jones Law or the United States Constitution. The absence of such a provision in the “the Noble Charter of 1878” is probably due to the fact that its framers considered such precept as already embodied or implied from the general provision guaranteeing the enjoyment of life, liberty and property. They did not think of the subject just as the first law-makers of Rome did not think of punishing parricide. Neither did such a necessity appear among the English people. Had Charles I threatened letters, the Petition of Rights would have mentioned privacy of communication and correspondence as one of the grievances of the English people. A similar provision is found in the Malolos Constitution (Title IV, Arts. 12 and 13) and in the constitution of Spain, Italy and Japan.
No system of liberty is complete which does not guarantee religious freedom. The following provision now found in the Jones Law is incorporated: NO LAW SHALL BE MADE RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF, AND THE FREE EXERCISE AND ENJOYMENT OF RELIGIOUS PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION OR PREFERENCE, SHALL FOREVER BE ALLOWED. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS.
It was Lord Mansfield who said that “there is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the precepts and spirit of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy.” In England, the first step towards religious toleration was accomplished by the passage in 1888 of the English Toleration Act guaranteeing privileges to dissenters. Reactionary measures were passed later on under Queen Anne but they were repealed by the Hanovers. From the accession of George II dissenters were admitted to civil offices. Laws against the Roman Catholics were likewise gradually softened. In 1858, civil disabilities were totally removed.
The colonies were before the mother country in establishing religious toleration. (Stevens, Sources of the Constitution of the United States, 214.) This was so because whereas in England there was an established religion, in the colonies there was a medley of faiths such that no religion could claim superiority over the others, thus rendering persecution impossible. (Green, History of the English People, Vol. V, p. 216.) In the Constitution of the United States it is provided in Article VI that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This was followed and complimented by the provision in the first amendment that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The foregoing are not prohibitions upon the states; but practically all the states have adopted similar provisions.
The Spanish Constitutions of 1869 and 1876 establish a state religion for Spain but guarantee free practice of any other. (U.S. v. Balcorta, 25 Phil. 273.) Said constitutions were not made applicable to the Philippines. It was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country (Art. X). President McKinley’s Instructions to the Second Philippine Commission reasserted the right which later on was incorporated in the Philippine Bill and in the Jones Law.
INVOLUNTARY SERVITUDE IN ANY FORM SHALL NOT EXIST IN THE PHILIPPINE ISLANDS EXCEPT AS A PUNISHMENT FOR CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED. The foregoing statement is the provision found in the Jones Law minus “slavery”. “Slavery” is omitted because it is devoid of historical significance in our country and because it is a form of “involuntary servitude” embraced within this comprehensive term.
Little need be said in this regard. To recognize any form of involuntary servitude would be to take a backward step — to make a shameful retreat — to the days when people bowed before wealth and became abject in the presence of a titled few. We are beneficiaries of democracy and we should endeavor to march forward ready to hand over to the succeeding generations the flaming torch of individual freedom.
The United States was born of the misrule of monarchy. The Americans wanted equality in the Republic which they established. The Constitution, therefore, was made to contain prohibitions against the granting of titles of nobility not only by the Federal Government but by the States as well. (Art. 1, Sees. 9 and 10.) A provision of this nature is also found in the Articles of Confederation. (Art. VI, Sec. 1.) It was even proposed in 1810 to amend the Constitution so as to penalize those who violate this provision with forfeiture of citizenship and incapacity to hold office of trust or profit under the government. The proposed amendment lacked the necessary ratifying vote of only one state. (Norton, The Constitution of the United States, Its Sources and Applications, p. 90.) The Federalist (No. 84) speaking of the importance of the prohibition against titles of nobility in the Federal Constitution says: “This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people.”
The Filipinos have also suffered under the misguided rule of monarchy and upon the first chance of drafting a constitution of their own they provided that no Filipino could accept “honors, decorations or orders or titles of honor and nobility from foreign nations without authorization of the government.” The government was also forbidden from establishing or granting them to any Filipino. (Malolos Constitution, Art. 32, Title IV.)
It is proposed that the following provision now found in the Jones Law be incorporated: NO LAW GRANTING A TITLE OF NOBILITY SHALL BE ENACTED AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST IN THE PHILIPPINES SHALL, WITHOUT THE CONSENT OF THE NATIONAL ASSEMBLY, ACCEPT ANY PRESENT, EMOLUMENT, OFFICE OF TITLE OF ANY KIND WHATEVER FROM ANY FOREIGN STATE.
Since the beginning of time man has always been found grouped together for the promotion of the general welfare. In ancient times, tribal organizations were formed for common protection and mutual help. As industries developed, guilds were organized to insure fair treatment of certain classes of workers. And as civilization marched, so was the associative principle developed. Associations of all sorts were organized, unions of every denomination were formed, — and just as it would be futile to enumerate and discuss the various associations as we find them today, so would it be impossible to overstate the influence they are exerting and the important place they are occupying in modern society. They demonstrate very clearly the spirit of self-government. They make people self-reliant, energetic and active.
There is no doubt that the right of association can become dangerous as was the case with French Clubs of the First Revolution. But it is also undeniable that the more elementary, the more important the right is, the more dangerous and the more liable to abuse it becomes, and that unless the right is exercised with prudence and caution — unless the privilege-holder is guided by reasons — evil disastrous consequences would ensue. This might just as well be said of every other individual right. To offset this danger, limitations should be imposed. The Committee, therefore, submits the following precept: THE RIGHT TO FORM ASSOCIATIONS OR SOCIETIES FOR PURPOSES NOT CONTRARY TO LAW SHALL NOT BE ABRIDGED.
The foregoing provision is not found in the organic Law or in the United States Constitution, but the right is recognized here and in America to a greater extent than in Continental Europe, subject to certain limitations prescribed by law. The Malolos Constitution provides that no Filipino shall be deprived of “the right of joining any association for all the objects of human life” not contrary to public morals. (Art. 20, Tit. IV.)
The provision that NO PERSON SHALL BE IMPRISONED FOR DEBT is intended to prevent the commitment of debtors to prison for liabilities arising from actions ex contractu, express or implied, whether the liabilities were incurred with or without fraud, and not for damages arising ex delictu which are punishments for the wrong committed; nor to fines and penalties imposed by courts as punishment for crime (Freeman v. U.S., 217 U.S., 539) or the violation of ordinances. (U.S. v. Rodriguez, 28 Phil. 759.)
In the draft submitted by the Committee on Bill of Rights the prohibition is not extended to non-payment of taxes. It is a well-settled doctrine in American Constitutional Law that a tax is not a debt and that the abolition of imprisonment for debt has no application to taxes. (Cooley, The Law of Taxation, Vol. I, p. 91, Sec. 22.) We are expected to emphasize in the Constitution not only the rights but also the duties of Filipino citizens. One of these clear duties is the payment of taxes, and the extension of the constitutional provision to delinquency in the payment of taxes would not be much of an encouragement in the performance of these primary duties of citizenship. If the evil desired to be corrected refers to imprisonment due to non-payment of the cedula tax, then the prohibition should at most be limited to imprisonment for non-payment of this personal tax. A sweeping general inhibition may prove disastrous.
The prohibition that NO LAW IMPAIRING THE OBLIGATION OF CONTRACTS SHALL BE ENACTED is intended to secure private rights (Calcer v. Bull, 3 Dallas 386, 1 L. ed., 648); and has been more often relied upon by private litigants for the protection of property rights than any other sentence of the Constitution (Stimson, The American Constitution As It Affects Private Rights, p. 160), thus confirming Sir Henry Maine’s prediction that this clause in the Federal Constitution would prove to be “the bulwark of American individualism against democratic impatience and socialistic fantasy.” (Popular Government, 247.)
The obligation of the contract is the law which binds the parties to perform their agreement provided it is not contrary to law, morals or public order. Any law which enlarges, abridges or in any manner changes the intention of the parties, necessarily impairs the contract itself and is null and void. (U.S. v. Diaz Conde, 20, O.G. 1894.) The law to be void must impair the obligation of a valid and existing contract and the impairment must be substantial. (Detroit Union R. Co. v. Michigan, 242, U.S. 283; Gaspar v. Molina, 5 Phil. 197.)
The prohibition in the United States Constitution was directed towards the state legislatures. (Art. 1, Sec. 10, U.S. Constitution.)
The prohibition that Congress shall not enact bill of attainders or ex post facto laws was repeated as to the states with the addition that the states shall not impair the obligation of contracts.
This provision was twice referred to in THE FEDERALIST (Nos. 7 and 44.) In No. 44 we read:
“Bill of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State Constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”
Black believes that the prohibition was inserted in the Federal Constitution due to the financial condition of the country at the close of the Revolution and the disposition of the states then as to the enforcement of public and private obligations. It was realized that the states would repudiate their debts restrained by a constitutional provision. (Black, Henry Campbell, American Constitutional Law, p. 708.)
Although most state constitutions already had provisions on the subject yet there was a strong desire to issue paper money even to the extent of discharging previous contracts by the use of almost worthless paper money. Furthermore, the various states were inclined to make liberal provisions for the relief and encouragement of the debtors to the injury and detriment of creditors and to the serious impairment of public and private credit. The prohibition was therefore inserted in the Constitution to prevent the passage of state laws which would release debtors from their obligations to pay. In addition to this, we find that contracts of States themselves had been repudiated. “The separate legislatures have so often abused the obligation of contracts,” wrote Jefferson, “that the citizens themselves chose to trust it to the general (National) rather than to their own (States) authorities.” On the same subject, Chief Justice Marshall said “a course of legislation had prevailed in the states which weakened confidence of man in man.” (Quoted by Norton, The Constitution of the United States, Its Sources and Aplications, 92-93.)
The prohibition was added in limiting state powers when it was pointed out that the term ex post facto relates only to crimes and criminal proceedings. The provision was accordingly framed to cover civil cases. (Norton, Ibid, 92.)
While the prohibition is directly against state action alone, essentially the same protection is afforded against similar legislation by Congress by the Fifth Amendment providing that no person shall be deprived of property without due process of law. The guarantee against due process is broader than the protection afforded by the obligation of contracts clause since it extends to non-contractual as well as to contractual rights. In the case of Hepburn v. Griswold, 8 Wall, 603 (one of the Legal Tender Cases), the United States Supreme Court speaking of the prohibition with regard to the impairment of the obligation of contracts said:
“But we think it is clear that those who framed and those who adopted the Constitution intended that the spirit of this prohibition should pervade the entire body of legislation, and that the justice which the Constitution was ordained to establish was not thought by them to be compatible with legislation of an opposite tendency. In other words, we cannot doubt that a law not made in pursuance of an express power, necessarily, in its direct operation impairs the obligation of contracts, is inconsistent with the spirit of the Constitution.”
THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION, INSURRECTION, OR INVASION, THE PUBLIC SAFETY MAY REQUIRE IT, IN EITHER OF WHICH EVENTS THE SAME MAY BE SUSPENDED WHEREVER DURING SUCH PERIOD THE NECESSITY FOR SUCH SUSPENSION SHALL EXIST.
By the ancient writ of habeas corpus (have the body) the English court orders the person having a prisoner in charge to bring him before it for inquiry as to the legality of his detention. Although the privilege of habeas corpus may be said to antedate the Magna Charta of 1215, the first Habeas Corpus Act was passed only in 1679. The operation of the Act has in a way been annulled and the formal accusations and public trial of detained persons indefinitely deferred by the passage annually of Suspension Acts.
The power to suspend the privilege should be vested in the Chief Executive and should be so stated. Art. IX Sec. 12 (3) of the draft gives the power to suspend the writ of habeas corpus to the President. The United States Constitution did not vest that power in the President, and because mentioned in Article I which deals with the legislative power, it has been held that the power is confided to Congress alone. (Ex parte Hollman, 4 Cranch, 75, 101, 2 L. ed. 554; Ex parte Milligan, 4 Wall. 115, 18 L. ed. 281.) The power, however, was at one time given to President Lincoln by the Congress. (Norton, The Constitution of the United States, Its Sources and Applications, pp. 83-84.) The President is the commander-in-chief of the army and navy. The power may best be exercised by a single individual rather than by a legislative body. Prompt action is necessary in cases of public danger which should cause such suspension, which is ordered usually after martial law has been declared in a particular district. (Black, American Constitutional Law, p. 7037.)
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 law 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 law has a technical meaning and refers to crimes and criminal proceedings. It was 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. v. Ang Ken Ko, 6 Phil. 376.)
A bill of attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. 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 attainted 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, but the bill was not pressed to a vote.
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 Went-worth, 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. (Norton, The Constitution of the U.S., Its Sources and Applications, p. 85.) The prohibition in the Bill of Rights, therefore, seeks to prevent acts of violence and injustice brought about by the passage of such bills.
The rights of persons accused of crime are considered of primordial importance. When a person is indicted, he forms one party and the government — society — forms another. It is evident that unless strong and distinct guarantees are given the former, there can be no security against oppression by the latter. The Government is desirous of carrying into effect its avowed purpose of repressing crimes and criminals through the exercise of superior powers which are likely to be abused in the absence of effective check measures. History records of numerous trials in various countries which are as shocking to the feelings of humanity as they are to the laws of logic. With all the constitutional guarantees in the United States, Prof. Edwin W. Borchard, of Yale University, presents an appalling cross-section of miscarriage of justice in the American Continent in his book entitled “Convicting the Innocent.”
Reforms in penal procedure have been slowly accomplished due to the fact that the persons affected are generally uninfluential and lawyers are usually attracted more to the civil than to the criminal branch of the profession.
It is the duty of the present generation, through this Constitutional Convention, to preserve the rights of accused persons, rights won after long and arduous struggles in the past. These rights are already embodied in the present Organic Law and in our Code of Criminal Procedure.
The most comprehensive and far-reaching of these rights is that which declares that NO PERSON SHALL BE HELD TO ANSWER FOR A CRIMINAL OFFENSE WITHOUT DUE PROCESS OF LAW.
The accused is deemed to have had due process of law if he “has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him with an opportunity to be heard and a judgment awarded within the authority of a constitutional law.” (Ong Chong Wing v. U.S. 218 U.S. 272, 54 L. ed. 4040.)
ALL PERSONS SHALL BEFORE CONVICTION BE BAILABLE WITH SUFFICIENT SURETIES, EXCEPT FOR CAPITAL OFFENSE; EXCESSIVE BAIL SHALL NOT BE REQUIRED. Even in the freest countries there exists a painful yet unavoidable contradiction that while an accused is presumed to be innocent until the contrary is proved, he is nevertheless arrested and deprived of his liberty until trial takes place. To mitigate this harshness, and to prevent long and undue imprisonments, the constitution of all free nations guarantee the right to bail. As far back as 1444 the Parliament of England passed an act which required sheriffs and other officers to “let out of prison all manner of persons upon reasonable sureties of sufficient persons.” To prevent the defeat of the right to bail, it is provided that “excessive bail shall not be required.”
But the right should not be extended to all cases. Capital cases are excepted since the punishment for death or life imprisonment which are imposed in those cases do not find any equivalent in money and because the offense committed is so grave that the escape of the offender is sought to be prevented. Suggestion has been made that the provision of Sec. 63 of Criminal Procedure (All prisoners shall be bailable before conviction, except those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt is strong) be adopted in lieu of what is provided in the draft. This is not believed necessary, especially in the light of the decision of our Supreme Court in the case of Montalbo v. Santamaria, (54 Phil. 955) but there is no serious objection to accepting this suggestion.
It is also important that a well-regulated penal trial be provided for. The following provision forms the basis of a carefully elaborated system. IN ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL BE PRESUMED TO BE INNOCENT UNTIL THE CONTRARY IS PROVED, AND SHALL ENJOY THE RIGHT TO BE HEARD BY HIMSELF AND COUNSEL, TO DEMAND THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM, TO HAVE A SPEEDY AND PUBLIC TRIAL, TO MEET THE WITNESSES IN HIS BEHALF. HE SHALL NOT BE COMPELLED TO BE A WITNESS AGAINST HIMSELF. The presumption of innocence spoken of in the first part of the foregoing provision is not found either in the Jones Law or in American Constitutions. It is, however, a rule of law recognized by all of civilized mankind and has found a place in our Code of Criminal Procedure (Sec. 58). No person accused of a crime can hope to receive a fair and impartial trial if at the outset he is deemed guilty of the crime of which he is charged. It is the burden of the prosecution to prove the guilt of the defendant beyond reasonable doubt. If the prosecution fails in this regard, the defendant is entitled to an acquittal. And the acquittal has to be total. The defendant should either be declared guilty or not guilty. There can be no such thing as “half and quarter proof” and “proportional punishments” as formerly recognized in Continental Europe. The judge can not say. “We can not find you guilty now but we may pick you up for the same offense next time.” (Liber, Civil Liberty and Self-Government.) In a sense, therefore, this provision has led to the prohibition against double jeopardy which I shall discuss later.
The right of an accused to be heard by counsel was denied in England for a long time in capital cases. This deficiency in English procedural law was supplied in the United States Constitution by the guarantee of counsel in all cases. The defeat in the English system was remedied later in 1836. (Cooley, Constitutional Limitations, pp. 330-338.)
It is the right of a person accused of crime to demand the nature and cause of accusation against him. He should know for what cause and of what crime he is being charged. The Petition of Rights denounced the former practice in England of imprisoning freemen “by the king’s special command, without any charge.”
The Petition of Rights also complained of the denial of the right to a speedy trial. As a result, it became the practice to issue “letters patent” from the king ordering the clearing of jails of all prisoners for the purpose of bringing them to trial. This was done twice a year. A provision for speedy trial may also be found in the Malolos Constitution. (Art. 8, Title IV.) A speedy trial has been defined as a trial held at such a time as shall afford the prosecution time to prepare, after a fair and honest exercise of reasonable diligence, for trial. (U.S. v. Fox, 3 Mont. 512.) Trial should also be public in order to offset any danger of conducting it in an illegal and unjust manner.
The accused has also the right to meet his witnesses face to face. This right may, however, be waived. (Diaz v. U.S., 223 U.S. 442, 56 L. ed. 500.)
There was a time in England when the depositions of witnesses were taken and read in court. This prevented the accused from being confronted by the witnesses against him and of cross-examining them. Sir Walter Raleigh was condemned to death on the written testimony of a single witness who had in the meantime recanted his accusations. (Norton, The Constitution of the U.S., Its Sources and Applications, p. 219.)
The practice in Imperial Rome conforms to the rule of confrontation and is illustrated by the case of St. Paul. Festus, the Roman Procurator of Judea, answered the accusers of St. Paul thus: “It is not the manner of the Romans to deliver any man to die before he has met his accuser face to face; and he has license to answer for himself concerning the crime laid against him.” (Acts XXV, 16.) And when St. Paul was sent before Felix, Roman Governor of Caesarea, the governor, after reading the letter of accusation, said: “I will hear the thee when thine accusers are also come.” (Acts XXIII, 35.)
The privilege granted the accused to have compulsory process to compel the attendance of witnesses in his behalf, as practised in England at the time the United States Constitution was being drafted, was not allowed in ordinary original cases. The framers of the United States Constitution improved upon this practice and as employed today the privilege extends to all criminal cases.
The prohibition against self-incrimination is found in the Fifth Amendment to the United States Constitution and is one of the cornerstones of English liberty. This prohibition arose out of a practice in England and the colonies of compelling the accused to be a witness against himself.
Even the criminal is entitled to the protection of just and humane laws. Hence, the requirement THAT EXCESSIVE FINES SHALL NOT BE IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENT INFLICTED. The provision of the Jones Law corresponds to the third and last clauses of the Eighth Amendment to the United States Constitution which is a transcript of a clause in the Bill of Rights framed after the English Revolution of 1688.
The excessive fine under Magna Charta was the penalty or forfeiture which deprived a man of his “contentment” — of his living and ability to pursue his calling or profession.
Cruel and unusual punishments are prohibited. As we read ancient and medieval history, we learn of criminals being whipped, their ears and noses cut, their eyes plucked out, and their cheeks branded. We read of them being hanged, thrown into dungeons to die of thirst and cold and hunger, or left in the forests for wild birds and beasts to feast on. Blackstone relates that as late as 1759 the punishment for treason in England was terrible. The guilty person was hanged by the neck, cut down alive and disemboweled while living. His head was cut off and his body divided into four parts for disposition by the king. The punishment was mitigated in 1814 by Parliament. The punishment in Continental Europe was even more severe. (Norton, The Constitution of the U.S., Its Sources and Applications, p. 224.) Acts of cruelty are unworthy of human beings — of the name of man — and they should never be tolerated in a land where law and justice obtain.
The Supreme Court of the United States in (Weems v. U.S. 217 U.S. 349), held that the penalty of cadena temporal, which is prescribed by the old Penal Code for the crime of falsification of a public document by a public official, is a cruel and unusual punishment. It is generally believed, however, that the Federal Supreme Court was misled by the English translation of the Penal Code, and our local Supreme Court declined to extend the ratio decidendo to other cases. (U.S. v. Pico, 18, Phil. 386.)
Finally, it is one of the universal maxims of Anglican liberty that NO PERSON FOR THE SAME OFFENSE SHALL BE TWICE PUT IN JEOPARDY OF PUNISHMENT. This provision now found in the Jones Law corresponds to the second clause of the Fifth Amendment to the American Federal Constitution. It descended from the days when sanguinary punishments were frequently resorted to by despots. A defendant in a criminal case should be adjudged either guilty or not guilty. If he is not guilty, the prosecution can not appeal. There can be no double jeopardy of punishment.
The decision of the Supreme Court of the United States in (Kepner v. United States, 195 U.S. 100), has not escaped criticism, and suggestion has been made to set aside the ruling in this jurisdiction by the constitutional provision to the contrary. The principal objective was either to permit appeal in case of acquittal of the accused or at least to provide for a review at the instance of the Government by an appellate court of questions of law, without disturbing the verdict in favor of the defendant. The following quotation, however, from Prof. Willoughby (Constitution of the United States, Vol. 2, Sec. 709, pp. 1163-1164) is illuminating and in my mind decisive:
“Despite this argument, the weight of authorities, both State and Federal, is overwhelming that, as stated earlier in this chapter, a verdict or judgment in a lower court of competent jurisdiction is final and conclusive as to the defendant. Provision has, however, been made in some of the States, and similar action has recently been taken by Congress, to provide for a review at the instance of the Government in a superior court of questions of law, with, however, the proviso that a verdict in favor of the defendant shall not be set aside. The objection, however, to such a proceeding is not only that it raises in the superior court merely moot questions, but that, irrespective of whether the superior courts will feel themselves bound or even constitutionally qualified to pass upon points with reference to which they are not able to issue any appropriate orders, there is the objection that the defendant, having no reason for contesting them, the decisions will be based upon ex parte argument, with all the evils generally recognized as thereupon attending.”
“The Federal act referred to was that of March 2, 1909; which provided as follows: “That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance: Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant.”
The following provision is not included in the report of the Committee on Bill of Rights, and, although deemed a surplusage, is a good guiding principle and may be allowed to stay: THE STATE SHALL NOT DENY TO ANY PERSON (CITIZEN) FREE ACCESS TO THE COURTS BY REASON OF POVERTY.
The provision in the Jones Law to the effect that NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS, OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES was copied verbatim from the first amendment to the United States Constitution. A similar provision is found in the Malolos Constitution. (Title IV, Art. 20.) The Committee on Bill of Rights in its report recommended the incorporation of this precept without any change. In the final draft of the Constitution now submitted for the consideration of this body the following provisions are however substituted.
“No law shall be passed abridging the freedom of speech, or the right of the people peaceably to assemble and petition the Government for redress of grievances.
“There shall be no limitations to the freedom of the press except those required by good morals and public order. No publication shall be suppressed except by final decision of a competent court.”
It should be observed that the limitations mentioned with respect to freedom of the press are all well-known and similar to the existing provision in the United States Constitution. A careful analysis of the proposed change will show that it is not an improvement upon the time-honored precept as embodied in the Jones Act. Upon the other hand, let us not create the impression that the freedom of speech is more important than the freedom of the press. Why restrict or liberalize the one and not the other when both are equally important? The limitation as to “good morals” should better be left out. We cannot define them in the Constitution even if we would want to. Also, the suppression of given publication by final order of a competent court is an unwarranted limitation upon the freedom of the press, and is ineffective at that, because pending final judgment of the court, the publication may continue. I, therefore, plead for the acceptance of the original recommendation of the Committee on Bill of Rights, that is to say, the approval of the following precept: “No law shall be passed abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances.”
Now, a few words concerning the freedom of speech and of the press and of the right of petition.
Free speech is, to quote Wendell Philipps, “at once the instrument, and the guarantee, and the bright consummate flower of all liberty.” A free and vigilant press is equally indispensable. It is “one of the chief educators of the people — an element so pervading in its influence, and withal so powerful” that it can not be overlooked. (Cooley, Constitutional Limitations, p. 641; cited by Malcolm, Philippine Constitutional Law, pp. 413-414.) When repression of political and religious discussion became intense — when censorship of the press was resorted to most vigorously by the Long Parliament in England — John Milton, that great historiographer of Cromwell, in his Areopagitica, denounced the suppression of truth and appealed for “the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” (Areopagitica, 73, 74, Ambler’s Reprint.) Censorship existed from the time the printing press was invented in the 15th century. Before 1694, licensing acts were enacted repeatedly in England. Unlicensed publications of seditious and scandalous matters were punishd with death and mutilation. And it was not until the accession of George III that the English press became truly unmolested. Lord Macaualay declared that the emancipation of the press “had done more for liberty and for civilization than the Great Charter or the Bill of Rights of England.” (History of England, Vol. IV, p. 543.) And as Mr. Justice Holmes has cautioned, “we should be eternally vigilant against attempts to check the expression of opinions” which free speech and free press guarantee. (Strom-berg v. People of California, 283, U.S. 359.) Censorship also existed in the colonies until about 1755. (Tyler, History of American Literature, Vol. I, p. 113.) It is related that in 1723 the illustrious Franklin left Massachussetts for Pennsylvania when his brother was imprisoned on account of a libel. (Stevens, Sources of the Constitution of the United States, p. 221, n. 2.)
Freedom of the press is the right to publish the truth with good motives and for justifiable ends without previous license or censorship. (6 R.C.L., 254.) Such a definition implies restrictions. “The freedom of the press is not an absolute right that gives immunity for every possible use of language.” (Gitlow v. Sanford, 267 U.S.) When “the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that (the state) has a right to prevent,” then punishment may attach to him who has abused this freedom. (Schenck v. U.S. 249, U.S. 47.)
Rizal in The Philippines A Century Hence (p. 62) and Mabini in his La Revolución Filipina expressed the longing of their countrymen when they pleaded for liberty of the press. We may well repeat now what Mr. Justice Malcolm of our Supreme Court said sixteen years ago: “A reform so sacred to the people of these Islands and we at so far a cost should now be protected and carried forward as one would protect and preserve the covenant of liberty itself.” (U.S. v. Bustos, 37 Phil. 731.)
The right of assembly and petition is rather the origin than a derivation of freedom of speech and of the press. (Stimson, The American Constitution As It Protects Private Rights, p. 152.) According to Chief Justice Marshall, it originated “from those laws whose authority is acknowledged by civilized man throughout the world.” (Gibbons v. Ogden, 9 Wheat. 211.) It is an important attribute of civilization and a necessary consequence of republican institutions. “The very idea of a government, republican in form,” says Chief Justice Waite, “implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” (U.S. v. Cruikshank, 92 U.S. 542, 23 L. ed. 588.) But, the persons participating in these meetings should answer for the consequences of their acts. (U.S. v. Apurado, 7 Phil. 422.)
Formerly, the right of petition in England was limited only to redress of grievances. Later on, petitions of political subjects came into being but Charles II regulated this right. The privilege was embodied in the Bill of Rights of William and Mary in the following language: “It is the right of the subject to petition the king; and all commitments and prosecutions for such petitioning are illegal.” The present practice of petitioning the government for the adoption of certain public measures and policies may be said to have begun in 1779 when a widely organized attempt, through numerous signed petitions, was made to procure the- adoption by Parliament of a certain measure. The privilege came into special prominence in the colonies during the revolutionary epoch. The Congress of 1774 stated in the Declaration of Rights: “They, THE COLONISTS, have a right peaceably to assemble, consider grievances, and petition the King, and that all prosecutions prohibiting proclamations and commitments for the same are illegal.”
It is now a settled doctrine, however, that the official conduct and the policies of public officials can be severely criticised without danger of punishment. (U.S. v. Bustos, 37 Phil 731.) Neither can criticism of the constitution and legislation of government measures or policies be suppressed or prevented, (U.S. v. Perfecto, 43 Phil., 225) unless the intention be to incite rebellion and civil war. (Cooley, Constitutional Limitations, p. 614.)
CONCLUSION
In conclusion, I wish to state, in the name of our Committee, our gratitude to the Sponsorship Committee and its Sub-committee of Seven for their having seen fit to accept practically the whole of our report. The Tydings-McDuffie Law requires that we insert in our Constitution a Bill of Rights; I repeat, even without this requirement, it would be inconceivable for us not to do so. There is no constitution, worthy of the name, without a bill or declaration of rights. This Bill of Rights is to be^ as it were, the living gospel of the liberties of the people. It is not to be a catalogue or compilation of inhibitions or restrictions upon the people, because the people are sovereign. Rather, it is to be the palladium of their liberties and immunities, so that their persons, their homes, their peace, their livelihood, their happiness and their freedom may be safe and secure from an ambitious ruler, an envious neighbor, or a grasping State. Under this Bill of Rights, we shall have no peculiar Corpus Juris to govern the relations of the government and the officials, no special type of administrative law as this system is known in some countries of Continental Europe. We are creating a strong Executive, an assertive National Assembly, and an independent Judiciary, but no official however high in our Government may overpass or transcend the limitations that we establish in this Bill of Rights, because these limitations go to the very root of the powers of the Government “to act at all irrespective of time and place.”
Attention has been called by a leading political scientist of our country, Dean Maximo M. Kalaw, to the necessity of formulating our Bill of Rights no longer on the basis of inherent and natural rights of man — because this theory is now obsolete — but rather on the basis of social rights, as the State is, in the modern theory, the creator or dispenser of rights. We should not, however, be allured by new and untried dogmas and theories in the formation of our Bill of Rights, and again I suggest that we adopt a conservative attitude in this connection. There is in reality nothing new in this proposed Bill of Rights. It is but a restatement of what is found in the Jones Law, and the Bill of Rights contained in this law is in turn but a reproduction of similar provisions in American Constitutions, both Federal and State. The existing Bill of Rights embodied in the Jones Law is believed comprehensive enough and has worked out satisfactorily. It has become part and parcel of our jurisprudence and carries with it the interpretations given by the great Jurists and Statesmen who have vitalized its provisions. Again, it were better that we “keep close to the shores; let others venture on the deep.” Upon the other hand, notwithstanding the fact that the Bill of Rights of the United States Constitution may be said to be founded on an absolute theory, it has withstood the test of time, and for more than one and one-half century has not suffered an amendment. Congress, from time to time, has passed legislation on labor and capital and other matters affecting social conditions in America but the American Bill of Rights has been able to adapt itself to changing conditions and environments. This shows the flexibility of the Bill. In the very draft itself of the Constitution that we are considering we find provisions pertaining to social justice and of socialistic tendencies. For instance, we find limitation upon private ownership of agricultural land (Sec. 15, Art. XIII); we nationalize or socialize railroads, telegraphs and other means of communications, as they have done in the United States (Sec. 10, Ibid.) ;we nationalize our natural resources (Sec. 13, et seq.); we make it the duty of the State to safeguard social progress of the inhabitants, etc. (Sec. 9 Ibid.); we require the State, in the interest of social justice to afford the necessary protection to labor, especially to women and minors, and to regulate the relations between labor and capital, and landlord and tenant, both in agriculture and industry (Sec. 7, Ibid.), etc. More than that, to gain economic and social fortitude we provide in this draft for delegation of legislative authority to the President in connection with the fixing of tariff rates, tonnage and wharfage dues (Par. 13, Sec. 5, Art. VII) and the promulgation of rules and regulations to carry out a declared national policy in cases of emergency (Par. 15, Ibid.). And yet, our proposed Bill of Rights, I dare say, may be made to adapt itself to these perchance “revolutionary” provisions, through proper interpretation and application of the reserve “police power” of the State. The task in this respect will be thrown mainly on the judiciary and to some extent on the political departments of the government. We shall need to summon not only the learning but the vision and patriotism of our judges, so that in the process of exposition and construction of the fundamental law, they may emulate the “judicial statesmanship” of the great John Marshall of the Supreme Court of the United States. Let our judges be, as it were, the vestal keepers of the purity and sanctity of our Constitution and the protection and vindication of popular rights will, I trust, be safe and secure in their reverential guardianship.
MR. KINTANAR. Mr. President, will the gentleman yield?
THE PRESIDENT. The time of the gentleman has expired.
Monday, November 19, 1934, Proceedings of the Philippine Constitutional Convention (1934-1935), Volume III, P. 648 – 675. (
