Internal Memorandum Sample.docx

ABERIN AND PARTNERS LAW FIRM Baguio City TO: Atty. Aberin, Lead Counsel FROM: Atty. Dumo, Associate DATE: December 11, 2018 IN RE: Civil Case No. 17-ABCD re: Constitutionality of the Anti-Profanity Ordinance INTERNAL MEMORANDUM FOR RESPONDENTS Before us is respondent City of Waka, an independent component city in the Republic of the Philippines. As counsel for the respondent, we will prove that complainant Juan Dela Cruz has no sufficient cause of action against our client with regards to the ratification of the Anti-Profanity Ordinance which became effective January 5, 2018. Below are the statement of facts, identification of issues, and possible attacks and defenses, as well as possible weaknesses of their position.

STATEMENT OF FACTS On December 5, 2017, the City Mayor ratified an ordinance which is referred to as an Anti-Profanity Ordinance which became effective January 5, 2018. With the intention of curbing the revolting habit of cursing and being oblivious to its repercussions; a habit which is often observed in computer shops and employed by children who engage in war games and feudal battles who insult each other in indecent and profane languages. The Sangguniang Panlungsod that this habit of cursing causes the very fabric of human decency to deteriorate to such a degree that it must be prevented before any irreparable damage might happen. The Ordinance obligates computer shops and arcades to cause the hanging or posting of signs and signage in their business establishments to announce the announce the observance of the Anti-Profanity Ordinance, in word such as “Cursing is NOT allowed”, “Profanity prohibited”, “Bawal magmura”. Computer shops and arcades found without an Anti-Profanity sign, after approval of the ordinance, and having been informed of the Ordinance’s effectivity shall be apprehended by the Permits and Licensing Division of the City Government for their non-compliance. Complainant is the owner of several computer shops in the City of Waka. He is a law abiding citizen and makes sure that all licenses and permits are secured at the start of every year. He is considered one of the top 100 taxpayers in the City of Waka. In November 1, 2018, complainant received a notice of cancellation of his Mayor’s Permit and other licenses on the ground that he failed to post the required notices in his computer shops. His refusal to do so was intentional because he believed that the ordinance is unconstitutional, claiming the it violates his rights under Section 4, Article III of the 1987 Constitution and is suing our client for the alleged violation.

STATEMENT OF THE ISSUES I. II. III.

Whether or not the Anti-Profanity Ordinance violates Section 4, Article III of the 1987 Constitution. Whether or not the requirements of publication for such ordinance was complied with. Whether or not Juan Dela Cruz has legal standing to sue as a taxpayer.

ARGUMENTS AND DISCUSSIONS I.

The Anti-Profanity Ordinance does not violate Section 4, Article III of the 1987 Constitution.

Complainant based his suit on Article III, Section 4 of the 1987 Constitution which states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceable to assemble and petition the government for redress of grievances.” Freedom of expression is essential for the search of truth and is needed for democracy to work properly. Every freeman has an undoubted right to lay what sentiments he pleases before the public: but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.1 Thus, the freedom contemplated in Article III, Section 4 of the Constitution is not absolute. In the oft-quoted of Justice Holmes, the constitutional guarantee “obviously was not intended to give immunity for every possible use of language.”2 The accepted rule in jurisprudence is that freedom of speech may be limited if “creates a dangerous tendency which the state has a right to prevent.”3 In the celebrated case of Schenk v. United States, Justice Holmes rejected the absolutist view of the freedom of speech saying that “the character of every act depends upon the circumstances in which it is done. The most stringent protection of speech does not protect a man in falsely shouting fire in a theater and causing a panic.”4 The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.5 Chief Justice Fernando expounded on the meaning of the clear and present danger test in Gonzalez v. Chairman Katigbak,6 to wit: The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but must also be present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any

limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech.7 Based on the foregoing, the City of Waka’s ratification of the AntiProfanity Ordinance is valid based on the principles of the Dangerous Tendency Rule because such ordinance seeks to prevent the deterioration of morals and human decency of its constituents which is the danger it seeks to prevent. The ordinance is also in keeping with the mandate of the city in the promotion of the general welfare of the people based on Section 16 of the Local Government Code of 1991 which states that: Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In conclusion, the limitation of the City of Waka on the freedom of expression claimed by Juan Dela Cruz is justified as it will prevent the deterioration of the decency and morals of its constituents. II.

The publication required for such ordinance is not faithfully complied with.

This is a procedural lapse that may be used by the opposing party against the validity of the ordinance. According to Section 59 (c-d) of the Local Government Code: xxx c. The gist of all ordinances with penal sanctions shall be published in a newspaper of general circulation within the province where the local

legislative body concerned belongs. In the absence of any newspaper of general circulation within the province, posting of such ordinance shall be made in all municipalities and cities of the province where the sanggunian of origin is situated. d. In the case of highly urbanized and independent component cities, the main features of the ordinance or resolution duly enacted or adopted shall, in addition to being posted, be published once in a newspaper of general circulation within the city: Provided, That in the absence thereof the ordinance or resolution shall be published in any newspaper of general circulation. The Anti-Profanity Ordinance sanctions those who does not comply with the requirement of posting signage, thus, can be classified as an ordinance with a penal sanction. Being an ordinance with a penal sanction and the City of Waka being an independent component city, it is clear from the provision of the local government code that a publication in a newspaper of general circulation is required for the Anti-Profanity Ordinance to be effective, thus, this might be one of the possible weakness of our defense if properly alleged by our opponent. III.

Juan Dela Cruz does not have legal standing to sue as a taxpayer.

One of the remedies that we may employ is to file for a motion to dismiss the case on the ground that Juan Dela Cruz does not have a legal standing to sue as a taxpayer. According to Remulla v. Maliksi8, jurisprudence dictates that a taxpayer may be allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law or ordinance. Based on the foregoing, the requisites of a valid taxpayer’s suit is: 1) Illegal disbursement of funds derived from taxation; and 2) The taxpayer is directly affected by such governmental act. In the present case, although Juan Dela Cruz is a taxpayer who faithfully complies with his obligations, he is not qualified to sue as there was no illegal disbursement of public fund as. And even if the ordinance requires disbursement of funds derived from taxation, it is used for a valid purpose because the ordinance is a constitutional one. It is true that Juan Dela Cruz is directly affected by the ordinance as he owns a lot of computer shops in the City of Waka, but, given that one of the requisites of a valid taxpayer’s suit is lacking, he cannot pursue his suit.

CONCLUSION First, in view of the foregoing discussions, it is submitted that the petitioners’ contention is bereft of merit on substantive grounds. It is such on the ground of lack of cause of action of the petitioner as the Anti-Profanity Ordinance is constitutional based on the principles of the Dangerous

Tendency Rule which is the recommended mainstay of our arguments in case the suit shall prosper. Second, one of the possible attacks of the opponents would be that the ordinance is ineffective as it did not comply with the publication requirement. Lastly, we should pray to the court that the suit be dismissed as Juan Dela Cruz does not have the legal standing to institute a taxpayer’s suit.

Endnotes: 1

The 1987 Constitution of the Republic of the Phil.: A Commentary, J.Bernas, 2009 Ed., 2

Trohwerk v. United States, 249, U.S. 204, 206 (1919)

3

People v. Perez, 454 Phil. 599 (1923

4

The 1987 Constitution of the Republic of the Phil.: A Commentary, J.Bernas, 2009 Ed., 5

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

6

222 Phil. 225

7

Chavez v. Gonzales, G.R. No. 168338, February 15, 2008

8

G.R. No. 171633, September 18, 2013