AGABIN VERZOLA and LAYAOEN LAW OFFICES

PACIFICO A. AGABIN VILLARCLEOFE B. VILLAR-VERZOLA EMILIE S. LAYAOEN MARCELIANO C. CALICA LINA M. LABAGUIS PACIFIC STAR BLDG. 26TH FLOOR GIL PUYAT AVE. COR. MAKATI AVE. MAKATI CITY PHILIPPINES TEL. [632] 817-7717 817751FAX [632] 751-7951 E-mail: averheldlaw@yahoo.com.ph

August 17, 2011

SANGGUNIANG PANGLUNSOD Balanga, Bataan Dear Sangguniang Panglunsod of Balanga, Bataan: I am sending you this letter on behalf of a client. This refers to the issue of the constitutionality of Ordinance No. 3, series of 2011 of Barangay Tortugas, Municipality of Balanga, Province of Bataan. I have read a copy of said Ordinance, and it is my considered opinion that Section 6 is constitutionally infirm on at least four fundamental grounds: First, Section 6, Nos. 1 and 3 of the Ordinance violate freedom of expression guaranteed by the free speech clause of the Constitution; Second, Section 6 Nos. 1, 3, 4 and 5 violate the right to privacy included in the concept of liberty under the Due Process Clause; and Third, Section 6, Nos. 1, 3, 4 and 5 violate the right of the people to be secure in their persons and the right of privacy of communication. Fourth, Section 6, No. 5 is beyond the competence of the Barangay to enact, as the matter of discipline is already governed by existing national laws.

VIOLATION OF FREE EXPRESSION Paragraphs Nos. 1 and 3 of Section 6 of the Ordinance declares it illegal and unlawful for: 1. Any natural or juridical person to advertise within the territorial jurisdiction of the BARANGAY by billboards, brochures, leaflets, flyers or similar means or in any manner or form sell, offer for free or endorse, promote, prescribe or distribute abortifacients as defined in Section 4. Definition of Terms.
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3. Any person to hold, conduct or teach compulsory sex education without prior consultation with, and written permission of, the parents or guardians or minor students in any school, public or private within the territorial jurisdiction of the BARANGAY. These violate the provision of the Bill of Rights which provides that No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances (Sec. 4, Art. III, Constitution). These two sections obviously restrict communications aimed at what they say, that is, the restrictions of Paragraphs 1 and 3 are based on the content of the speech. It is obviously the kind of speech restriction that is prohibited by the freedom of speech clause of our Constitution, which forbids any governmental restriction on communications aimed at what the speakers say. In this case, what is prohibited by Paragraph 1 is communication about abortifacients, and what is restricted by Paragraph 3 is about sex education. Freedom of speech is guaranteed by the Constitution primarily so that the electorate can be in a position to make informed choices on public issues. The legitimate scope of public debate protected by the free speech clause includes any issue of possible debate, not necessarily limited to political issues. It includes central issues of both general welfare and justice, including sex education and use of contraceptives which is the subject of Paragraphs 1 and 3. While the above-quoted Paragraph 1 of Section 6 of the Ordinance strikes only at abortifacients as defined in Section 4, it should be noted that the definition in Section 4 includes intrauterine devices (IUDs) and hormonal contraceptives, which are listed in an Annex. In other words, the Ordinance penalizes advertisement of goods which are not prohibited by law, and the use of which is constitutionally protected by the due process clause of the Constitution. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied equal protection of the law (Art. III, Sec. 1 of the Constitution), guarantees liberty for all. It should be borne in mind that expression, even commercial expression, is protected by the free speech clause of the Bill of Rights (Bernas, The Constitution of the Republic of the Philippines (2003), p. 274). Speech does not lose the protection of the Constitution because money is spent to project it, as in a paid advertisement of one form or another (Virginia State Board Pharmacy v. Virginia Citizens Consumer Council (425 U.S. 748 [1976]). Likewise, speech is protected even though it is carried in a form that is sold for profit, and even though it may involve a solicitation to purchase or otherwise pay or contribute money (Ibid.).
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Since Paragraph 1 impinges on the fundamental right of liberty, the test to be used to determine its constitutional validity will have to be the strict scrutiny test. When the integrity of a fundamental right is at stake, this Court will give the challenged law, administrative order, rule or regulation a stricter scrutiny (Ople v. Torres, G.R. No. 12785, July 23, 1998). Using this test, I do not see any compelling state interest to justify approval of Paragraph 1, except that it seeks to implement the current law prohibiting abortifacients. It also suffers from the evil of overbreadth, as it includes not only abortifacients but also contraceptives within its scope. The same observation holds true for Section 6, Paragraph No. 5: there is no compelling government interest in discriminating against employees soliciting, accepting or dispensing contraceptives as defined in the Ordinance's Section 4. These provisions of the Ordinance lose sight of the constitutional guarantee of the right to privacy, which includes crucial personal decisions as to procreation and contraception, and they impose an undue burden for the exercise of a basic right guaranteed by the Constitution. As for Paragraph 3, since it is a good example of prior restraint to pure speech, as distinguished from speech plus conduct, it calls for application of the clear and present danger rule (Chavez v. Gonzales, 545 SCRA 441 [2008]). Under this test, an utterance can be restricted by the government only in such circumstances or is such a nature as to create a clear and present danger that it would bring about the substantive evils within the power of the government to control. In the present Ordinance, what is the substantive evil sought to be prevented by the government? I do not see any which is substantive enough to outweigh the interest in pure speech. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. (Ang Ladlad LGBT v. Comelec, 618 SCRA 32, 66). This Paragraph 3 places an undue burden for the exercise of free speech; it is therefore constitutionally suspect. Probably, the Barangay justifies it in the name of morality. While this may be a good justification for legislation, it must be balanced against the preferred freedom of expression. As our Supreme Court has observed, the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life (White Light Corporation v. City of Manila, 576 SCRA 445 [2009]). The value of free speech to a democratic society like ours mandates our courts to place it on a preferred position as against invocation of public morality where the danger is neither clear nor present. Our democracy precludes using the religious or moral views of one part of the community to exclude them from consideration the values of other members of the community. (Ang Ladlad LGBT v. Comelec, 618 SCRA at 72)

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VIOLATION OF THE RIGHT TO PRIVACY While it may be argued that Section 6, Paragraph 1 prohibits only a kind of speech that advertises or promotes abortifacients, it should be noted as stated earlier, that the definition of the term in Section 4 of the Ordinance is overbroad. The term is defined as Abortifacient is any device, medicine, substance or practice which may damage, injure, interfere with the natural development, endanger or cause the expulsion or death of an unborn child; except for such devices, medicines, substances or practices which are standard medical treatments for medical conditions which threaten the life or physical health of a pregnant woman or an unborn child, when used to treat such medical conditions, and neither the primary effect nor purpose of such device, medicine, substance, or practice is to cause the termination of a pregnancy or prevent conception. Abortifacients include intrauterine devices (IUD's), and hormonal contraceptives, as well as any and all other devices, medicines, substances or practices which fall within the foregoing definition, including but not limited to the list attached as Annex A entitled as List of Hormonal Contraceptives. This list shall be updated from time to time as the need arises. (Emphasis supplied). The above definition is overbroad as it includes in the definition and list not only abortifacients but also contraceptives, which are not illegal medicines under our national penal laws, and the use of which is constitutionally protected by the right to privacy. The doctrine of overbreadth in constitutional law states that by simply looking at the language of the statute, it could be applied in a manner which would be unconstitutional and, therefore, it should be struck down as such. A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Estrada v. Sandiganbayan, 369 SCRA 394). In other words, if the petitioner can show that the government or any of its instrumentalities can apply the statute unconstitutionally, the court can enjoin the government from ever applying it, even if the latter could apply the law in such a fashion as not to violate constitutional strictures (White Light Corporation v. City of Manila, 576 SCRA 440 [2009]). If Section 6, No. 1 can be applied as well to a protected right like the right to use contraceptives, the courts can declare this provision unconstitutional. Section 6, Paragraph 5 is more direct and unequivocal, as it refers explicitly to contraceptives. It is patently illegal.
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It is settled in our jurisdiction that the liberty protected by the due process clause of the Constitution includes personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education (City of Manila v. Laguio, 455 SCRA 337). In arriving at this conclusion, our Supreme Court cited an American Supreme Court precedent with approval, as follows: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under the compulsion of the State. (Lawrence Texas, 539 U.S. 558 [2003]). It should be observed that our Constitution uses the term no person in the due process clause. Personhood protected by the due process clause includes the right to make decisions relating to marriage, procreation, contraception and family relations (City of Manila v. Laguio, G.R. No. L-118127, April 12, 2005). In other words, the constitutional right to privacy protects decisions of a person whether or not to reproduce. In short, the right to use, accept or dispense contraceptives is part of the liberty of an individual protected by the due process clause of the Constitution. Section 6, Paragraph 1 of the Ordinance, while striking down the use of abortifacients, has so defined the term as to include contraceptive devices, the use of which is protected by the Constitution. Thus, the overbroad Ordinance, which penalizes the advertising, accepting, soliciting, or dispensing of contraceptives, is facially infirm using constitutional tests, and may be struck down as violative of the due process clause of the Constitution. Under Paragraph 1 of the Ordinance, the government, acting through the Barangay, can choose to prosecute persons giving, advertising or selling contraceptive devices within its territory, activities which are constitutionally protected by the right of free expression and the right to privacy. That the Ordinance seeks to prevent the use of abortifacients is not a sufficient justification for its approval as presently worded, since it is not narrowly-drawn and does not tie in with another constitutional requisite for its legitimacy as a police power measure. The test to determine the validity of overbroad measures like that of Section 6, Paragraph 1 has been laid down by the Supreme Court as follows: It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be
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evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. (White Light Corporation v. City of Manila, 576 SCRA at 441).

VIOLATION OF THE RIGHT TO SECURITY OF PERSONS Aside from the constitutionally-protected right to use contraceptives, one other aspect of privacy implicated in Section 6, Paragraphs 1 and 3 of the Ordinance is security of person and privacy of communication. Privacy is also protected by Art. III, sec. 2 of the Constitution, which guarantees the security of persons against unreasonable searches and seizures, and by Article III, sec. 3(1) which provides: The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. This provision refers primarily to informational privacy, and it is inviolable. Before any infringement is allowed, there must be a court order, or law emanating from the legislature premised on considerations of public safety or order. In the present issue, prohibition on the use of, or commercials for, contraceptives, or sex education for students, are not reasonably related to public order or safety. Communications with respect to contraceptives, procreation, and sex education are usually private in nature. The question posed by Justice Douglas in the Griswold case (the rationale of which was adopted by the Philippine Supreme Court in Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968) can be rephrased in this case: Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of flyers and advertisements of contraceptives? Historically, we should note that this provision of Art. III, sec. 3(1) of our present Constitution is borrowed from the Malolos Constitution. This shows the concern of our forbears for the right to privacy even before this concept was imported from American jurisprudence. It belies the common belief that the Filipino has no concept of privacy before the coming of the Americans. Furthermore, it should not escape our attention that the concept of a person under the Due Process Clause and of the same term in the guarantee against unreasonable searches and seizures (Art. III, Sec. 1 of the Constitution), include the private aspects of an individual's personal life that makes him human, and makes for his individuality (Puno, C.J.,
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concurring in Ang Ladlad LGBT v. Comelec, supra). Webster defines person as the individual personality of a human being (Third International Dictionary). As our Supreme Court observed in the Morfe decision, the right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. Thus, the right of the people to be secure in their persons shall be inviolable, and this includes not only communication and correspondence but also all aspects of his private life that constitutes his identity as a person, unless he waives his right to privacy. If a law, even in the form of a Barangay ordinance, is found to violate the guarantee against security of persons and that of privacy of communication, then it should be struck down as unconstitutional and invalid.

DENIAL OF EQUAL PROTECTION Section 6, Paragraph 5 of the Ordinance penalizes with dismissal and disqualification from holding any public office the Barangay or its employees or its agencies to solicit, accept or dispense contraceptives as defined in Section 4 Definition of Terms. This is clearly a case of unwarranted classification violative of the equal protection clause (Ang Ladlad LGBT v. Comelec, 618 SCRA 32). It must be stated, once again, that the right to privacy, which includes the right to make personal decisions on procreation and contraception, is a right protected by the Constitution. Under this provision of the Ordinance, employees or agencies of the Barangay who exercise their right to privacy are dismissed from office and forever barred from holding public office. Aside from the fact that this subject is beyond the competence of the Barangay, it is also a case of denial of equal protection in violation of the constitutional prohibition. These employees are not only denied the right to use or dispense contraceptives; they are also discriminated against because of their belief to control biological reproduction. Because they have exercised their protected right to decide whether or not to reproduce, they are to be penalized and prohibited from holding public office. This is nothing short of invidious discrimination because of the beliefs held by said employees and agencies with regard to procreation. It fails to recognize the fact that, as our Supreme Court has said, our concept of liberty compels respect for the individual whose claim to privacy and interference demands respect (City of Manila v. Laguio, 455 SCRA at 338). These private matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, or meaning, of universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood where they formed under the compulsion of the State. (Id. at 337, quoting Lawrence v. Texas, 539 U.S. 558 [2003]).
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The concept of equal protection means that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances (Tolentino v. Board of Accountancy, 90 Phil. 83, 90 [1951]). In the present case, the denial of equal protection to employees or agents who do not subscribe to the sectarian view of sex for reproduction cannot be upheld on constitutional grounds. Where state intrusion on fundamental rights is equally burdensome to certain groups, it violates equal protection of the law.

LACK OF COMPETENCE Lastly, Section 6, Paragraph No. 5 provides an additional ground for disciplinary action against Barangay employees. This is one subject that is already covered by the Local Government Code, the Code of Conduct and Ethical Standards, the Revised Penal Code, the Administrative Code of 1987, and the Civil Service Law. For an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict or repugnant to the general law (City of Manila v. Laguio, supra). A local government unit cannot usurp the authority of the national government by legislating on a subject that falls within the authority of the national government (Zoomsat, Inc. v. People, 451 SCRA 226). In the present case, Section 6, Paragraph No. 5 adds a new ground for disciplinary action against public officers, which is subject beyond the authority of the Barangay. The above is my considered opinion on the subject Ordinance, for your consideration. If you have further questions, please let me know. Sincerely,

PACIFICO A. AGABIN
Opinion on Reproductive HealthREV.17Aug11 PAA/Vivian

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