Thursday, January 31, 2013

Dismissal of probationary employee - G.R. No. 177937

see -  G.R. No. 177937

"x x x.

The Issue

          The sole issue for resolution is whether respondent was illegally terminated from employment by petitioners.

The Ruling of the Court
          We rule in the affirmative.

          There is probationary employment when the employee upon his engagement is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of engagement.[21]

          A probationary employee, like a regular employee, enjoys security of tenure.[22]  However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 281 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of the engagement.  Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following:  (1) a just or (2) an authorized cause; and (3) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.[23] 

          Article 277(b) of the Labor Code mandates that subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal, except for just and authorized cause and without prejudice to the requirement of notice under Article 283 of the same Code, the employer shall furnish the worker, whose employment is sought to be terminated, a written notice containing a statement  of the causes of termination, and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires, in accordance with company rules and regulations pursuant to the guidelines set by the Department of Labor and Employment.

          In the instant case, based on the facts on record, petitioners failed to accord respondent substantive and procedural due process. The haphazard manner in the investigation of the missing cash, which was left to the determination of the police authorities and the Prosecutor’s Office, left respondent with no choice but to cry foul.  Administrative investigation was not conducted by petitioner Supermarket.  On the same day that the missing money was reported by respondent to her immediate superior, the company already pre-judged her guilt without proper investigation, and instantly reported her to the police as the suspected thief, which resulted in her languishing in jail for two weeks.  

          As correctly pointed out by the NLRC, the due process requirements under the Labor Code are mandatory and may not be supplanted by police investigation or court proceedings. The criminal aspect of the case is considered independent of the administrative aspect. Thus, employers should not rely solely on the findings of the Prosecutor’s Office. They are mandated to conduct their own separate investigation, and to accord the employee every opportunity to defend himself.  Furthermore, respondent was not represented by counsel when she was strip-searched inside the company premises or during the police investigation, and in the preliminary investigation before the Prosecutor’s Office.

          Respondent was constructively dismissed by petitioner Supermarket effective October 30, 1997. It was unreasonable for petitioners to charge her with abandonment for not reporting for work upon her release in jail. It would be the height of callousness to expect her to return to work after suffering in jail for two weeks. Work had been rendered unreasonable, unlikely, and definitely impossible, considering the treatment that was accorded respondent by petitioners.

          As to respondent’s monetary claims, Article 279 of the Labor Code provides that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. However, due to the strained relations of the parties, the payment of separation pay has been considered an acceptable alternative to reinstatement, when the latter option is no longer desirable or viable.  On the one hand, such payment liberates the employee from what could be a highly oppressive work environment.  On the other, the payment releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.[24]

           Thus, as an illegally or constructively dismissed employee, respondent is entitled to: (1) either reinstatement, if viable, or separation pay, if reinstatement is no longer viable; and (2) backwages. These two reliefs are separate and distinct from each other and are awarded conjunctively.[25]

 In this case, since respondent was a probationary employee at the time she was constructively dismissed by petitioners, she is entitled to separation pay and backwages. Reinstatement of respondent is no longer viable considering the circumstances.

          However, the backwages that should be awarded to respondent shall be reckoned from the time of her constructive dismissal until the date of the termination of her employment, i.e., from October 30, 1997 to March 14, 1998.  The computation should not cover the entire period from the time her compensation was withheld up to the time of her actual reinstatement. This is because respondent was a probationary employee, and the lapse of her probationary employment without her appointment as a regular employee of petitioner Supermarket effectively severed the employer-employee relationship between the parties. 
          In all cases involving employees engaged on probationary basis, the employer shall make known to its employees the standards under which they will qualify as regular employees at the time of their engagement. Where no standards are made known to an employee at the time, he shall be deemed a regular employee,[26] unless the job is self-descriptive, like maid, cook, driver, or messenger.  However, the constitutional policy of providing full protection to labor is not intended to oppress or destroy management.[27] Naturally, petitioner Supermarket cannot be expected to retain respondent as a regular employee considering that she lost P20,299.00  while acting as a cashier during the probationary period. The rules on probationary employment should not be used to exculpate a probationary employee who acts in a manner contrary to basic knowledge and common sense, in regard to which, there is no need to spell out a policy or standard to be met.[28]

x x x."

COA bars certification for liquidation starting this year – Lacson -

COA bars certification for liquidation starting this year – Lacson -

"x x x.

MANILA, Philippines – Senator Panfilo Lacson said Wednesday both chambers of Congress have agreed with the ruling of the Commission on Audit (COA) to stop using mere certifications as liquidating instruments for any of its expenditures.

“(We) agreed to submit ourselves to the disposition of COA, whatever COA says we will follow. And COA explicitly expressed that liquidation by certification will no longer be allowed, at least prospectively, starting 2013,” Lacson said in an interview.

Lacson said he and House Speaker Feliciano Belmonte sat down with COA chairman Ma. Gracia Pulido-Tan on the issue of liquidation of all funds appropriated to Congress, and they all agreed to rescind Concurrent Resolution No. 10 allowing Congress to liquidate Maintenance and 

Other Operating Expenses (MOOE) by mere certification.

“It goes without saying that COA no longer recognizes liquidation by certification. It goes without saying Concurrent Resolution No. 10 is no longer in force,” Lacson said.

Lacson said he supported the contention of COA that under the Constitution, all branches of government should liquidate funds under rules on auditing and accounting procedures.

Lastly, Lacson said that COA rejected the proposal made by Senate Minority Leader Alan Peter Cayetano in a resolution for a parallel audit of the Senate by a private auditing firm.

x x x."

Tuesday, January 29, 2013

Senatorial bet to SC: Compel passage of anti-political dynasty law

see  -  Senatorial bet to SC: Compel passage of anti-political dynasty law

"x x x.

MANILA, Philippines - A senatorial candidate in the 2013 midterm elections asked the Supreme Court on Monday, January 28, to compel Congress to pass a law banning political dynasties.
Ricardo Penson, president and CEO of Ausphil Tollways Corp and a senatorial hopeful, said the High Court should require lawmakers to enact a law against political dynasties, as mandated in the 1987 Constitution.
Sec.26, Article II of the Constitution specifies that "The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law."
Penson noted that since the Constitution took effect 26 years ago, no law defining and prohibiting political dynasties has been passed.
His petition was filed shortly after a losing senatorial candidate of the Liberal Party in 2010 announced in a forum that he was leading a group that would seek the disqualification of 3 political dynasties -- the Pinedas of Pampanga, Villafuertes of Camarines Sur, and Dutertes of Davao City.
Lawyer Alex Lacson said there is no need to wait for a new law against political dynasties since there are legal definitions already set in previous decisions of the Supreme Court.
Lacson is bringing his group's petition straight to the SC, so the latter can compel the Commission on Election to immediately disqualify the members of the 3 families who are running for various local posts.
For his part, Penson asked that his petition be consolidated with the petition of former Vice President Teofisto Guingona Jr. and Dante Jimenez, founding chairman of the Volunteers against Crime and Corruption.
In 2012, Guingona, Jimenez and lawyers of VACC asked the SC to also compel the House of Representatives and the Senate to pass a law against political dynasties.
The SC has yet to act on petition. It has, however,affirmed its earlier dismissal of a petition that asked the Commission on Elections to implement the constitutional provision against political dynasties.
Penson earlier promised that if he wins, he will push for the passage of an anti-political dynasty law. He is also among the candidates who have vowed to abolish the pork barrel if they get elected.
x x x."

Offending religious beliefs as a crime - MVRS Publications Inc vs Islamic Da'wah Council of the Phil Inc : 135306 : January 28, 2003 : J. Bellosillo : En Banc

see  -  MVRS Publications Inc vs Islamic Da'wah Council of the Phil Inc : 135306 : January 28, 2003 : J. Bellosillo : En Banc

"x x x.

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70) Muslim religious organizations, and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in their own behalf and as a class suit in behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid.  The article reads:
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang ‘Ramadan’."
The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these words alluding to the pig as the God of the Muslims was not only published out of sheer ignorance but with intent to hurt the feelings, cast insult and disparage the Muslims and Islam, as a religion in this country, in violation of law, public policy, good morals and human relations; that on account of these libelous words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim world, especially every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article did not mention respondents as the object of the article and therefore were not entitled to damages; and, that the article was merely an expression of belief or opinion and was published without malice nor intention to cause damage, prejudice or injury to Muslims.[2]
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish their cause of action since the persons allegedly defamed by the article were not specifically identified -
It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with specificity. The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs  x x x x It is thus apparent that the alleged libelous article refers to the larger collectivity of Muslims for which the readers of the libel could not readily identify the personalities of the persons defamed.  Hence, it is difficult for an individual Muslim member to prove that the defamatory remarks apply to him.  The evidence presented in this case failed to convince this court that, indeed, the defamatory remarks really applied to the herein plaintiffs.[3]
On 27 August 1998 the Court of Appeals reversed the decision of the trial court.   It opined that it was  "clear from the disputed article that the defamation was directed to all adherents of the Islamic faith.  It stated that pigs were sacred and idolized as god by members of the Muslim religion.  This libelous imputation undeniably applied to the plaintiff-appellants who are Muslims sharing the same religious beliefs."  It added that the suit for damages was a  "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave it the requisite personality to sue and protect the interests of all Muslims.[4]
Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of the elements of libel, (b) the right of respondents to institute the class suit, and, (c) the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements.[5] It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff.[6] It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute.[7] Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.[8]
It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special damages.[9] The fact that the language is offensive to the plaintiff does not make it actionable by itself.[10]
Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual.  Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action[11] without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the Bill of Rights.[12] Thus, in Newsweek, Inc. v. Intermediate Appellate Court,[13] we dismissed a complaint for libel against Newsweek, Inc., on the ground that private respondents failed to state a cause of action since they made no allegation in the complaint that anything contained in the article complained of specifically referred to any of them.  Private respondents, incorporated associations of sugarcane planters in Negros Occidental claiming to have 8,500 members and several individual members, filed a class action suit for damages in behalf of all sugarcane planters in Negros Occidental.  The complaint filed in the Court of First Instance of Bacolod City alleged that Newsweek, Inc., committed libel against them by the publication of the article "Island of Fear" in its weekly newsmagazine allegedly depicting Negros Province as a place dominated by wealthy landowners and sugar planters who not only exploited the impoverished and underpaid sugarcane workers but also brutalized and killed them with impunity. Private respondents alleged that the article showed a deliberate and malicious use of falsehood, slanted presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad light, expose them to public ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred, contempt and hostility of their agricultural workers and of the public in general. We ratiocinated -
x x x  where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be  x x x x  The case at bar is not a class suit.  It is not a case where one or more may sue for the benefit of all, or where the representation of class interest affected by the judgment or decree is indispensable to make each member of the class an actual party.  We have here a case where each of the plaintiffs has a separate and distinct reputation in the community.  They do not have a common or general interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article.  Since the persons allegedly defamed could not be identifiable, private respondents have no individual causes of action; hence, they cannot sue for a class allegedly disparaged.  Private respondents must have a cause of action in common with the class to which they belong to in order for the case to prosper. 
An individual Muslim has a reputation that is personal, separate and distinct in the community.  Each Muslim, as part of the larger Muslim community in the Philippines of over five (5) million people, belongs to a different trade and profession; each has a varying interest and a divergent political and religious view -some may be conservative, others liberal.  A Muslim may find the article dishonorable, even blasphemous; others may find it as an opportunity to strengthen their faith and educate the non-believers and the "infidels."  There is no injury to the reputation of the individual Muslims who constitute this community that can give rise to an action for group libel.  Each reputation is personal in character to every person.  Together, the Muslims do not have a single common reputation that will give them a common or general interest in the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,[14] the United States Court of Appeals held that one guiding principle of group libel is that defamation of a large group does not give rise to a cause of action on the part of an individual unless it can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive.  In an American case,[15] a person had allegedly committed libel against all persons of the Jewish religion.  The Court held that there could be no libel against an extensive community in common law.  In an English case, where libel consisted of allegations of immorality in a Catholic nunnery, the Court considered that if the libel were on the whole Roman Catholic Church generally, then the defendant must be absolved.[16] With regard to the largest sectors in society, including religious groups, it may be generally concluded that no criminal action at the behest of the state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed by the airing of a national television broadcast of a film depicting the public execution of a Saudi Arabian princess accused of adultery, and alleging that such film was "insulting and defamatory" to the Islamic religion.[17] The United States District Court of the Northern District of California concluded that the plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy to insult, ridicule, discredit and abuse followers of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia"  bordered on the  "frivolous,"  ruling that the plaintiffs had failed to demonstrate an actionable claim for defamation.  The California Court stressed that the aim of the law on defamation was to protect individuals; a group may be sufficiently large that a statement concerning it could not defame individual group members.[18]
Philip Wittenberg, in his book  "Dangerous Words:  A Guide to the Law of Libel,"[19]  discusses the inappropriateness of any action for tortious libel involving large groups, and provides a succinct illustration:
There are groupings which may be finite enough so that a description of the body is a description of the members.  Here the problem is merely one of evaluation.  Is the description of the member implicit in the description of the body, or is there a possibility that a description of the body may consist of a variety of persons, those included within the charge, and those excluded from it?
A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the lawyers were shysters.  A charge that the lawyers in a local point in a great city, such as Times Square in New York City, were shysters would obviously not include all of the lawyers who practiced in that district; but a statement that all of the lawyers who practiced in a particular building in that district were shysters would be a specific charge, so that any lawyer having an office within that building could sue.
If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind.   Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself.[20] At present, modern societal groups are both numerous and complex.  The same principle follows with these groups: as the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive.  This principle is said to embrace two (2) important public policies:  first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.[21]
In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were particularly defamed.  The size of the group renders the reference as indeterminate and generic as a similar attack on Catholics, Protestants, Buddhists or Mormons would do.  The word  "Muslim" is descriptive of those who are believers of Islam, a religion divided into varying sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon political and theological distinctions.   "Muslim" is a name which describes only a general segment of the Philippine population, comprising a heterogeneous body whose construction is not so well defined as to render it impossible for any representative identification.
The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups the essence of which may lie in an inspired charlatan, whose temple may be a corner house in the fringes of the countryside.  As with the Christian religion, so it is with other religions that represent the nation's culturally diverse people and minister to each one's spiritual needs.  The Muslim population may be divided into smaller groups with varying agenda, from the prayerful conservative to the passionately radical.  These divisions in the Muslim population may still be too large and ambiguous to provide a reasonable inference to any personality who can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the course of the deliberations in this case.  We extensively reproduce hereunder his comprehensive and penetrating discussion on group libel -
Defamation is made up of the twin torts of libel and slander – the one being, in general, written, while the other in general is oral. In either form, defamation is an invasion of the interest in reputation and good name. This is a “relational interest” since it involves the opinion others in the community may have, or tend to have of the plaintiff.
The law of defamation protects the interest in reputation – the interest in acquiring, retaining and enjoying one’s reputation as good as one’s character and conduct warrant. The mere fact that the plaintiff’s feelings and sensibilities have been offended is not enough to create a cause of action for defamation. Defamation requires that something be communicated  to a third person that may affect the opinion others may have of the plaintiff. The unprivileged communication must be shown of a statement that would tend to hurt plaintiff’s reputation, to impair plaintiff’s standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action is upon the allegedly defamatory statement itself and its predictable effect upon third persons. A statement is ordinarily considered defamatory if it “tend[s] to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace…” The Restatement  of Torts defines a defamatory statement as one that “tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima facie case that the defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff.
The rule in libel is that the action must be brought by the person against whom the defamatory charge has been made. In the American jurisdiction, no action lies by a third person for damages suffered by reason of defamation of another person, even though the plaintiff suffers some injury therefrom. For recovery in defamation cases, it is necessary that the publication be “of and concerning the plaintiff.” Even when a publication may be clearly defamatory as to somebody, if the words have no personal application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no one’s reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that the plaintiff is the person with reference to whom the statement was made. This principle is of vital importance in cases where a group or class is defamed since, usually, the larger the collective, the more difficult it is for an individual member to show that he was the person at whom the defamation was directed.
If the defamatory statements were directed at a small, restricted group of persons, they applied to any member of the group, and an individual member could maintain an action for defamation. When the defamatory language was used toward a small group or class, including every member, it has been held that the defamatory language referred to each member so that each could maintain an action. This small group or class may be a jury, persons engaged in certain businesses, professions or employments, a restricted subdivision of a particular class, a society, a football team, a family, small groups of union officials, a board of public officers, or engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and there is nothing that points, or by proper colloquium or innuendo can be made to apply, to a particular member of the class or group, no member has a right of action for libel or slander. Where the defamatory matter had no special, personal application and was so general that no individual damages could be presumed, and  where the class referred to was so numerous that great vexation and oppression might grow out of the multiplicity of suits, no private action could be maintained. This rule has been applied to defamatory publications concerning groups or classes of persons engaged in a particular business, profession or employment, directed at associations or groups of association officials, and to those directed at miscellaneous groups or classes of persons. 
Distinguishing a small group-which if defamed entitles all its members to sue from a large group – which if defamed entitles no one to sue – is not always so simple. Some authorities have noted that in cases permitting recovery, the group generally has twenty five (25) or fewer members. However, there is usually no articulated limit on size. Suits have been permitted by members of fairly large groups when some distinguishing characteristic of the individual or group increases the likelihood that the statement could be interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma University football team was permitted to sue when a writer accused the entire team of taking amphetamines to “hop up” its performance; the individual was a fullback, i.e., a significant position on the team and had played in all but two of the team’s games.
A prime consideration, therefore, is the public perception of the size of the group and whether a statement will be interpreted to refer to every member. The more organized and cohesive a group, the easier it is to tar all its members with the same brush and the more likely a court will permit a suit from an individual even if the group includes more than twenty five (25) members. At some point, however, increasing size may be seen to dilute the harm to individuals and any resulting injury will fall beneath the threshold for a viable lawsuit.
x x x x There are many other groupings of men than those that are contained within the foregoing group classifications. There are all the religions of the world, there are all the political and ideological beliefs; there are the many colors of the human race. Group defamation has been a fertile and dangerous weapon of attack on various racial, religious and political minorities. Some states, therefore, have passed statutes to prevent concerted efforts to harass minority groups in the United States by making it a crime to circulate insidious rumors against racial and religious groups. Thus far, any civil remedy for such broadside defamation has been lacking.
There have been numerous attempts by individual members to seek redress in the courts for libel on these groups, but very few have succeeded because it felt that the groups are too large and poorly defined to support a finding that the plaintiff was singled out for personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by petitioners in the instant case did not specifically identify nor refer to any particular individuals who were purportedly the subject of the alleged libelous publication.  Respondents can scarcely claim to having been singled out for social censure pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is an intentional tortious act causing mental distress and not an action for libel.  That opinion invokes Chaplinsky v. New Hampshire[22] where the U.S. Supreme Court held that words heaping extreme profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection; andBeauharnais v. Illinois[23] where it was also ruled that hate speech which denigrates a group of persons identified by their religion, race or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of an individual.
We do not agree to the contrary view articulated in the immediately preceeding paragraph.  Primarily, an "emotional distress" tort action is personal in nature, i.e., it is a civil action filed by an individual[24] to assuage the injuries to his emotional tranquility due to personal attacks on his character.  It has no application in the instant case since no particular individual was identified in the disputed article of Bulgar.  Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm - which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive harm - which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress.  In their complaint, respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating their faith in Metro Manila and in other non-Muslim communities in the country.[25] It is thus beyond cavil that the present case falls within the application of the relational harm principle of tort actions for defamation, rather than the reactive harm principle on which the concept of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the plaintiff must show that:  (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's mental distress was extreme and severe.[26]
"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.  The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff.[27]   Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as his or her reaction.[28]
"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin.[29] "Severe emotional distress,"  in some jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia.[30] The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages.[31]
Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger.  Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.  In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.[32]
Hustler Magazine v. Falwell[33] illustrates the test case of a civil action for damages on intentional infliction of emotional distress.  A parody appeared in Hustler magazine featuring the American fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated state having an incestuous sexual liaison with his mother in an outhouse.   Falwell sued Hustler and its publisher Larry Flynt for damages.  The United States District Court for the Western District of Virginia ruled that the parody was not libelous, because no reasonable reader would have understood it as a factual assertion that Falwell engaged in the act described.  The jury, however, awarded $200,000 in damages on a separate count of "intentional infliction of emotional distress," a cause of action that did not require a false statement of fact to be made.  The United States Supreme Court in a unanimous decision overturned the jury verdict of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of emotional distress.  It was argued that the material might be deemed outrageous and may have been intended to cause severe emotional distress, but these circumstances were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the United States Constitution.  Simply stated, an intentional tort causing emotional distress must necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he was an individual particularly singled out or identified in the parody appearing on Hustler magazine.  Also, the emotional distress allegedly suffered by Reverend Falwell involved a reactive interest - an emotional response to the parody which supposedly injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners was not extreme or outrageous.   Neither was the emotional distress allegedly suffered by respondents so severe that no reasonable person could be expected to endure it.  There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner[34] - 
There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek.  Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind x x x  The plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:[35]
There is no occasion for the law to intervene in every case where someone’s feelings are hurt.  There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would "open up a wide vista of litigation in the field of bad manners," an area in which a "toughening of the mental hide" was thought to be a more appropriate remedy.[36]Perhaps of greater concern were the questions of causation, proof, and the ability to accurately assess damages for emotional harm, each of which continues to concern courts today.[37]
In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First Amendment doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse a theory, known as the Two-Class Theory, that treated certain types of expression as taboo forms of speech, beneath the dignity of the First Amendment.  The most celebrated statement of this view was expressed in Chaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.  These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.  It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Today, however, the theory is no longer viable; modern First Amendment principles have passed it by.  American courts no longer accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or offensive.[38] Cohen v. California[39] is illustrative: Paul Robert Cohen wore a jacket bearing the words  "Fuck the Draft" in a Los Angeles courthouse in April 1968, which caused his eventual arrest.  Cohen was convicted for violating a California statute prohibiting any person from "disturb[ing] the peace x x x by offensive conduct."  The U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar," but it concluded that his speech was nonetheless protected by the right to free speech.  It was neither considered an "incitement" to illegal action nor "obscenity."  It did not constitute insulting or "fighting" words for it had not been directed at a person who was likely to retaliate or at someone who could not avoid the message.  In other words, no one was present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor was there any danger of reactive violence against him.  
No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket.  The conviction could only be justified by California’s desire to exercise the broad power in preserving the cleanliness of discourse in the public sphere, which the U.S. Supreme Court refused to grant to the State, holding that no objective distinctions can be made between vulgar and nonvulgar speech, and that the emotive elements of speech are just as essential in the exercise of this right as the purely cognitive.  As Mr. Justice Harlan so eloquently wrote:  "[O]ne man’s vulgarity is another man’s lyric x x x words are often chosen as much for their emotive as their cognitive force."[40] With Cohen, the U.S. Supreme Court finally laid the constitutional foundation for judicial protection of provocative and potentially offensive speech.
Similarly, libelous speech is no longer outside the First Amendment protection.  Only one small piece of the Two-Class Theory inChaplinsky survives - U.S. courts continue to treat "obscene" speech as not within the protection of the First Amendment at all. With respect to the "fighting words" doctrine, while it remains alive it was modified by the current rigorous clear and present danger test.[41] Thus, in Cohen the U.S. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky.   Indeed, when Beauharnais was decided in 1952, the Two-Class Theory was still flourishing.  While concededly the U.S. High Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence substantially undercut Beauharnais and seriously undermined what is left of its vitality as a precedent.   Among the cases that dealt a crushing impact on Beauharnais and rendered it almost certainly a dead letter case law areBrandenburg v. Ohio,[42] and, again, Cohen v. California.[43] These decisions recognize a much narrower set of permissible grounds for restricting speech than did Beauharnais.[44]
In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and propriety  of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.[45]   Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized.  Prof. Smolla affirmed that "Brandenburg must be understood as overruling Beauharnais and eliminating the possibility of treating group libel under the same First Amendment standards as individual libel."[46] It may well be considered as one of the lynchpins of the modern doctrine of free speech, which seeks to give special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit.  As correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations,  "an element of a class suit is the adequacy of representation.  In determining the question of fair and adequate representation of members of a class, the court must consider (a) whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class.[47]
The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned.  In the present controversy, Islamic Da’wah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well.  Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent.  Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing."[48]
Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its causal connection with the acts complained of,[49] and so it must be, as moral damages although incapable of pecuniary estimation are designed not to impose a penalty but to compensate for injury sustained and actual damages suffered.[50] Exemplary damages, on the other hand, may only be awarded if claimant is able to establish his right to moral, temperate, liquidated or compensatory damages.[51] Unfortunately, neither of the requirements to sustain an award for either of these damages would appear to have been adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about another individual's religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments.  The greater danger in our society is the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others.  This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious agenda. 
It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither does it have the authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast asunder, for the validity of religious beliefs or values are outside the sphere of the judiciary.  Such matters are better left for the religious authorities to address what is rightfully within their doctrine and realm of influence.  Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where  "[a]ll ideas are treated equal in the eyes of the First Amendment - even those ideas that are universally condemned and run counter to constitutional principles."[52] Under the right to free speech,  "there is no such thing as a false idea.  However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."[53] Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press.
WHEREFORE, the petition is GRANTED.  The assailed Decision of the Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED.  No pronouncement as to costs.
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raissa robles | Criminal law professor questions constitutionality of the crime of “offending religious feelings”

raissa robles | Criminal law professor questions constitutionality of the crime of “offending religious feelings”

"x x x.

Criminal law professor questions constitutionality of the crime of "offending religious feelings"


By Raïssa Robles

The crime of “offending religious feelings” – for which Carlos Celdran was convicted is unconstitutional – believes Ibarra Gutierrez III, a criminal law professor at the University of the Philippines.
“I don’t think it’s constitutional,” he told me in an interview.

Gutierrez gave several reasons.
“First of all, it is strangely placed. It appears in one chapter of the Revised Penal Code – under “Crimes Against the Fundamental Laws of the State. Look at the other crimes (under this section). They all refer to a situation where a government official violates the Bill of Rights such as arbitrary detention, illegal search and seizure.
At the very last (of the same section), you have a crime that does not punish a government official who commits crimes against the Bill of Rights but a crime that offends religious feelings.
I looked and indeed the provision was strangely placed, tacked on like an afterthought.
The Bill of Rights does mention religion but only with respect to a person’s right to freely exercise it.
Prof. Ibarra Gutierrez
Prof. Ibarra Gutierrez
Prof. Gutierrez also expressed the belief that the State
“has no business prosecuting crimes anchoring on religious feelings. The problem is, it calls upon the court to make a determination of what the religious faithful will find offensive…what will ridicule the church.”
He said this would mean that the court would have to make a judgment in relation to doctrines of a particular church.
Third, he called the crime “archaic” and a throwback to the Spanish colonial period when the native population in the Philippines was ruled by a theocracy and Church and State were one.
To non-lawyers like me, the name “Revised Penal Code” was highly misleading since it initially gave me the impression the revision was recent. It turns out our Code of Crimes was last revised back in 1930 yet. It replaced the previous Spanish Penal Code but apparently carried over quite a number of the latter’s provisions.
I asked Prof. Gutierrez to recall previous cases where the court ruled that religious feelings were offended.
He said one case was penned by the late Justice Jose P. Laurel before World War II. It involved a man who had a non-Catholic buried with Catholic rites in a Catholic cemetery.
Another more recent case involved a man who – during a religious rally of the Iglesia ni Cristo, had climbed the stage and started debating with the church minister. In that case, he said, the lower court convicted the man. But on appeal, he was acquitted because the judge ruled that a religious rally held in a public plaza is not a religious ceremony, he explained.
So I guess Prof. Gutierrez has just answered a question I had posed earlier – if the Catholic Church chooses to have an outdoor religious ceremony-cum-rally against the reproductive health law, can those who might hold counter-rallies in the vicinity be held liable for offending religious feelings?
Gutierrez added that even if the Church holds a mass during a public rally, the gathering cannot be considered a “religious ceremony” defined under Section 133. “Not even if you do something offensive,” he said.
Still another case of initial conviction involved a drunken man who had entered a church while singing was going on during a service and who tried to grab the mike. The Court of Appeals reversed his initial conviction and said he was not guilty of offending religious feelings because his intention was not to ridicule the church beliefs. He was just drunk .
In the case of Carlos Celdran, Gutierrez said:
“I would assume, the decision (of the judge) zeroed in more on his action – the mode he had adopted to get his particular message across, the fact that he had disrupted a mass – more than on his purpose.”
Celdran said he will appeal his case. He had earlier apologized for disrupting an ecumenical service inside the Manila Cathedral two years ago by holding up a sign with the word “Damaso” on it and yelling at senior Catholic clerics to stop meddling in politics by trying to block the passage of a reproductive health law.
I guess Celdran had also touched a sensitive spot. The Church would rather forget the oppressive role it played during the Spanish colonial period, which national hero Dr. Jose Rizal had satirized in the two novels that the Church also tried to ban from being read in schools.   Celdran twisted the knife in by dressing up like Rizal on the day he was executed for crimes against the State and the Church.
The one-man protest landed Celdran briefly in jail, which he cut short by posting bail.
Celdran then said:
“I really am sorry for the method but I hope you heard my message loud and clear. My message is unapologetic. But for interrupting the mass and ruining your day, sorry about that.”
Gutierrez noted that theoretically, Celdran can post bail despite his conviction, “while he is appealing the case.”
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