GR L 32613 4; (April, 1974)

EN BANC

G.R. Nos. L-32613-4 April 30, 1974

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON N. FERRER, in his capacity as Judge of the Court of First Instance of Tarlac, Branch I; FELICIANO CO alias “Leoncio Co” alias “Bob” and NILO S. TAYAG alias “Romy Reyes” alias “Taba”, respondents.

Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor General Hugo E. Gutierrez, Jr. for petitioner.

R E S O L U T I O N

CASTRO, J.:

The respondents Feliciano Co and Nilo Tayag separately seek a reconsideration of our decision in this case dated December 27, 1972. The motion for reconsideration filed by Co, being a mere reiteration of arguments previously advanced, need not detain us. It is the motion filed by Tayag that requires detailed consideration.

The burden of Tayag’s motion is that knowing membership alone in the Communist Party of the Philippines or in any other subversive organization cannot, consistently with the Constitution, be made the basis of criminal prosecution under the Anti-Subversion Act. He argues that such membership must be coupled with direct participation by the defendant in the illegal activities of the organization. Thus, he seeks the inclusion in the guidelines set forth in our decision of a requirement that in prosecutions under the Act the State must prove that the defendant joined or remained a member of the CPP or of the subversive organization, knowing its subversive character and with specific intent to further its basic objectives as shown by direct participation in the organization’s unlawful activities.

1. The respondent Tayag’s submission would nullify the legislative policy embodied in the Anti-Subversion Act and frustrate prosecutions under it. On the basis of Congressional findings that the Communist Party of the Philippines is “an organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose of establishing in the Philippines a totalitarian regime … under the control and domination of an alien power,”1 the Act provides for the punishment of any person who “knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines.”2

The Act is thus a conspiracy statute. The gist is the agreement itself rather than action taken pursuant to it.3 Obviously, to require proof of direct participation of the defendant in the substantive offenses constituting the object of the conspiracy, in addition to proof of agreement, would render ineffectual the conspiracy device in penal law. The law is primarily concerned with conduct and will not intervene as long as the actor withdraws from what lie has planned to do. But where the act or acts in concert with others, the likelihood of a change of heart or of a misreading of his intention is minuscule. He is less likely to desist from the criminal enterprise where others are also involved. On the contrary, the encouragement and moral support of others in conspiracy with him fortifies his perseverance. The resulting collective action toward an anti-social end gives rise to a graver danger to society than individual action toward the same end, and justifies the intervention of the law at an earlier stage.4

Indeed, section 4 of the Act distinguishes one who only joins or maintains his membership in the CPP or other subversive organization, for whom the penalty provided is arresto mayor, from one who not only does so but as well takes up arms against the Government, for whom the Act provides a heavier penalty, namely, prision mayor to death. The respondent Tayag’s thesis would obliterate this distinction. The Court’s traditional avoidance of constructions of doubtful constitutionality cannot be turned into an instrument for the evisceration of a plain legislative policy.

2. Moreover, a requirement that the prosecution must prove direct participation by the defendant in the objectives of the conspiracy would run counter to another established principle in the law — that where conspiracy is proved, the act of one is deemed to be the act of all.5 That is why we referred to criminal conspiracy as a dragnet device for effectively dealing with the growth of organized crime. A contrary requirement would render society powerless to repress widespread criminality.

3. Indeed, as we noted in our decision, the requirement that membership in the CPP or in any other subversive organization be shown by overt acts was intended no more than to preclude the possibility that conviction may be obtained solely on the basis of incriminating evidence rather than positive acts of the defendant. As Senator Cea explained in the course of the deliberations on the bill: “I have inserted the words “overt acts” because we are punishing membership in the Communist Party. I would like that membership to be proved by overt acts, by positive acts, because it may happen that one’s name may appear in the list of membership.”6

Thus, where one is shown to have taken an oath of membership or signed affiliation papers in a subversive organization, knowing its illegal purposes, the requirement of the law is satisfied. Of course where, as it often happens, it cannot be shown that the defendant explicitly or expressly entered into the conspiracy, his agreement may be inferred from circumstances demonstrating concert of action. It is then that the defendant’s participation in the illegal activities of the organization would constitute proof of his specific intent.

4. But the over-act requirement may also be satisfied by proof of non-criminal and relatively minor acts.7 Such acts may consist in signing membership papers, paying dues, attending meetings, and the like, which, although in themselves may not be illegal, are nevertheless acts in pursuance of the objectives of the conspiracy. As the U.S. Supreme Court explained in Yates vs. United States:8

… It is not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy. Nor, indeed, need such an act, taken by itself, even be criminal in character. The function of the overt act in a conspiracy prosecution is simply to manifest “that the conspiracy is at work,” and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence.

Indeed, the rationale of the Anti-Subversion Act, like that of the Smith Act involved in Yates, is that the existence of the conspiracy by itself creates the danger to national security. As held in Dennis vs. United States,9 “the formation … of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders … felt that the time has come for action, … disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained because it comprises only the preparation. It is the existence of the conspiracy which creates the danger … If the ingredients are present, we cannot bind the Government to wait until the catalyst is added.” In the case of the CPP and other subversive groups, the danger posed is deemed in the Anti-Subversion Act to be so “clear, present and grave” as to warrant the prosecution of those engaged in the conspiracy.

5. Nor is there a constitutional compulsion that the overt acts of conspiracy be evidenced by direct participation of the defendant in the illegal objectives of the organization. In the first place, there is no reason why one who actively and knowingly works in the ranks of the organization, intending to contribute to the success of its specific illegal activities, should be any more immune from prosecution than one to whom the organization has assigned or entrusted the task of carrying out the substantive criminal acts. In United States vs. Vergara,10 for instance, it was shown that the defendants organized the Katipunan, a society for the purpose of overthrowing the Government by force, and that in pursuance of the conspiracy the defendants solicited public contributions. No overt acts of insurrection were shown, but the defendants were nevertheless held guilty of conspiracy to overthrow the Government.

In the second place, the requirement of proof of specific intent precisely limits the operation of the statute only to illegal conduct. There need be no apprehension that unless direct participation by the defendant in the illegal activities of the association is shown, the statute may sweep unnecessarily broadly into protected activities, as the association may have both legal and illegal aims. In the case of the Communist Party of the Philippines, this apprehension is without basis, for the very nature of that organization as a conspiracy for the violent overthrow of the Government defines the character of its objectives.

Indeed, as was held in Scales vs. United States,11 in answer to a similar contention,

If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. It is, of course, true that quasi-political parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as the First Amendment liberties are concerned. If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with “the substantive evils that Congress has a right to prevent.” Schenk v. United States, 249 U.S. 47, 52. The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant “specifically intend[s] to accomplish [the aims of the organization] by resort to violence.” Noto v. United States [367 U.S. at 299]. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute; he lacks the requisite specific intent “to bring about the overthrow of the government as speedily as circumstances would permit.” Such a person may be foolish, deluded or perhaps merely optimistic, but he is not by this statute made a criminal.’

ACCORDINGLY, the two motions for reconsideration are denied. Our decision of December 27, 1972 is hereby declared final and executory.

Makalintal, C.J., Zaldivar, Barredo, Esguerra, Fernandez and Aquino, JJ., concur.

Makasiar, Antonio and Muñoz Palma, JJ., took no part.

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Footnotes

1 Republic Act No. 1700, sec. 2 and preamble.

2 Id. sec. 4.

3 Compare article 8 of the Revised Penal Code which provides in pertinent parts that “Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it…” .

4 See, generally, Developments in the Law-Criminal Conspiracy, 72 Harv. L. Rev. 920 (1959).

5 E.g., People vs. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759..

6 Senate Cong. Rec., May 22, 1957, p. 1900.

7 Developments in the Law-Criminal Conspiracy, supra note 4 at 946; Emerson, The System of Freedom of Expression 409 (1969).

8 354 U. S. 298 (1957).

9 341 U.S. 494 (1951).

10 3 Phil. 491 (1904).

11 367 U.S. 203 (1961).

Batas Pinas