The FreeThinkers Network of

the Philippines - A

THE CASE CONCERNING THE

CONSTITUTIONALITY OF THE ANTI-HATE
SPEECH ACT OF 2016 AND THE RELIGIOUS
SOLIDARITY LAW ACT OF 2016.
The Civil Liberties Club of the Philippines
The FreeThinkers Network of the Philippines
Philippine Media Association
(Petitioners)
V.
Solicitor General, representing the Executive Secretary
Catholic Lawyers Association of Mindanao
Muslim Lawyers League of Mindanao
.(Respondents)

MEMORIAL FOR RESPONDENT

STATEMENT OF JURISDICTION

Petitioner Freethinkers Network of the Philippines, in compliance with this Honorable Courts
directive during the 22 February 2016 oral arguments, respectfully submit their memorandum.

QUESTIONS PRESENTED

I. Whether or Not the police power of the state include the power to address hate
speech and take measures to prevent it
II. Whether or Not the police power of the state include the power to promote religious
solidarity
III. Whether or Not sections 2, 3, 5 and 6 of RA XAYZ violate the Bill of Rights
IV. Whether or Not sections 2, 3 and 5 of RA XBYZ violate the Bill of Rights
V. Whether or Not these two laws are unconstitutional

STATEMENT OF FACTS
The constitutionality of two related (fictitious) laws: (1) the Anti-Hate Speech Act of
2016; (2) The Religious Solidarity Law Act of 2016. They were enacted as a legislative
package and have overlapping provisions, thus the Supreme Court consolidated the
cases.

These laws were enacted in October 2016 after the new President and Congress
assumed office. They were legislated as a reaction to the all-out war waged first against
the BIFF and then the MILF after the BBL law was not enacted. The war by June 2016
had resulted in 10,000 plus casualties, three million displaced people, and billions of
pesos in economic damage. It had bogged down the Philippine military, which is now
unable to defend our disputed territory with China and is also threatened with being
overran in some places by the NPA. Although most of the deaths, displaced and
damage is in the ARMM provinces, the war has now been brought to the cities of
Mindanao and to Metro Manila. IS has now a firm foothold in the Moro youth that has
been radicalized because of the all-out war. And as it has happened many times before,
the government, including Congress, has again realized that there is no pathway for
victory in this fight with the MILF.
The elected President and many legislators were elected on a peace platform and so
now we are back to the negotiating table, this time following a Belfast approach where
all the stakeholders in the Mindanao conflict are represented. In the meantime, many in
Congress were upset that the all-out war was ignited, among others, through traditional
and social media that had sensationalized the Mamasapano tragedy and abetted
bigotry against Muslims. The two laws are a response to this; they were enacted so that
hate speech does not lead to violence between groups and so that solidarity between
religious groups would be encouraged.

SUMMARY OF PLEADINGS
The police power of the state does not include the power to address hate speech and
take measures to prevent it as it would violate the peoples right to articulate and
disseminate idea as guaranteed under the freedom of expression clause in the
Philippine Constitution. Such of the State does not also include the power to promote
religious solidarity as it actually collides with the peoples constitutional rights to religion
as guaranteed in Article III of the 1987 Philippine Constitution.
Sections 2, 3, 5 and 6 of RA XAYZ are violative to the right of the people to freedom of
speech, freedom of the press, and the right not to be detained solely by reason of ones
political beliefs and aspirations as afforded in the Bill of Rights. Sections 2, 3 and 5 of
R.A. XBYZ also violate the Freedom of Religion Clause of the Bill of Rights.
The two laws (RA XAYZ and RA XBYZ) violate the provisions of Sections 4 & 5, Bill of
Rights of the 1987 Constitution. Section 4 states 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. On the
other hand, Section 5 states that no law shall be passed respecting an establishment of
religion, or prohibiting the free exercise thereof.

MAIN PLEADINGS
I.

Police power of the state does not include the power to address hate speech
and take measures to prevent it
Police power is the power to restrain and regulate the use of liberty and
property to promote the public welfare. For the police power to be valid, it should
pass the 2 requisites; First, that the activity or property sought to be regulated
affects the public welfare. Second, that it must be made through lawful and
legitimate means. Lacking such concurrence, the police measure shall be struck
down as an arbitrary intrusion into private rights.
In the present case, it is evident that Police power cannot be validly
implemented as it would violate the peoples right to articulate and disseminate
idea as guaranteed under the freedom of expression clause in the Philippine
Constitution. Police power must conform to the safeguards embodied in the Bill
of Rights for the protection of private rights. Thus, failing to comply with the
second requirement, Police power cannot include the power to address hate
speech and take measures to prevent it. The inclusion of such would result to
unwarranted intrusion into individual liberty and property rights, or might even
become a bludgeon for oppression.
Addressing hate speech and taking measures to prevent it is certainly
nowhere in the provisions of Section 4, Bill of Rights of the 1987 Constitution.
The provision states 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. When the
government take measures to prevent hate speeches by way of providing
penalties, it is very tantamount to suppressing ones freedom of expressing

himself. It is virtually the same as abridging the freedom, which our constitution
proudly guarantees our freedom to speak and express of what we think is right
and just under a free country just like ours. Police power is defined as the
inherent power of the government to exercise reasonable control over persons
and property within its jurisdiction in the interest of general security, health,
safety, morals and welfare except where legally prohibited. When this power of
the state is used to prevent speeches, whether it is a hate speech or not, one
thing is sure we cannot call our freedom to speech as freedom to speech.

II. Does the police power of the state include the power to promote religious solidarity?
The police power of the State does not include the power to promote religious
solidarity because laws, such as in the case at bar i.e. RA XBYZ, tend to impose invalid
exercise of police power. It actually collides with the peoples constitutional rights as
guaranteed in Article III. The end does not justify the means, as they say. 1The
Establishment and Free Exercise Clauses as expressed in the Bill of Rights were not
designed to serve contradictory purposes. They have a single goal to promote freedom
of individual religious beliefs and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs
and practice, while the Establishment Clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. The two religion clauses
were intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices. The legislature, having the ultimate
authority in exercising the states police power, would recognize religions and their
practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and
burdened may turn to the courts for protection.

III. Sections 2, 3, 5 and 6 of RA XAYZ violate the Bill of Rights

1 Estrada v Escritor, A.M. No. P-02-1651 (2006)

Sections 2, 3, 5 and 6 of RA XAYZ violate the bill of rights. The constitution protects the
right of the people to freedom of speech, freedom of the press, and the right not to be
detained solely by reason of ones political beliefs and aspirations. Sovereignty resides
in the people thus they should be given the opportunity to participate in the shaping of
public affairs. Every citizen has a right to offer his views and suggestions in the
discussion of the common problems of the community or the nation. The best test of
truth is the power of the thought to get it accepted in the competition of the market. One
of the functions of freedom is precisely to invite dispute. The state cannot prohibit the
people from hearing what a person has to say, whatever the quality of his thoughts be.
In US vs Bustos, Justice Malcolm said:
The interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the
case of free speech. Men in public life may suffer under a hostile
and unjust accusation; the wound may be relieved by the balm of
a clear conscience. A public official must not be too thin-skinned
with reference to comment upon his official acts.
Official acts, and now even the private life, of a public servant are legitimate
subjects of public comment. The people have a right to scrutinize and commend or
condemn the conduct of their chosen representative in the government. As long as
comments are made in good faith and with justifiable ends, they are insulated from
prosecution or damage suits for defamation even if such views were found to be
inaccurate or erroneous. These also include Public figures or private individuals who
may be involved in a public issue.
Section 2 of RA XAYZ is inconsistent with Section 4, Article III of the Constitution. This
Section contravenes and infringes on the provision that no law shall be passed
abridging the freedom of speech, be it a hate speech or not. The law does not
distinguish, thus it covers all kinds of speech.
Our constitution provides that sovereignty resides in the people who manifest it
regularly by the assertion of their freedom of expression. It would be repudiated if they
were denied the opportunity to participate in the shaping of public affairs. The freedom
of expression contains two guarantees: prohibiting prior restraint and a prohibition of
subsequent punishment. The mere prohibition of government interference before words
are spoken or published would be an inadequate protection of the freedom of
expression if the government could punish without restraint after publication. The
unrestrained threat of subsequent punishment itself would operate as a very effective

prior restraint. Hence, the guarantee of freedom of expression also means a limitation
on the power of the state to impose subsequent punishment.
The creation of the Anti-hate commission which shall monitor traditional and
social media for hate speech outbursts, prevent publication of print media articles, issue
cease and desist orders, and make recommendations on how to curb hate speech in
the country also violates section 4 Art 3 of the constitution. Furthermore, the act itself is
unconstitutional thus all the other parts thereof must also be invalidated.

IV. Do Sections 2, 3 and 5 of R.A. XBYZ violate the Bill of Rights?

Sections 2, 3 and 5 of R.A. XBYZ violate the Bill of Rights.

Section 2 of said law explicitly states that funds shall be provided to support joint
religious celebrations especially in government functions. Furthermore, it provides that
all government programs, including all court proceedings, must always begin with an
ecumenical prayer representing the Catholic, Protestant and Muslim religions. These
parts are violative of Sec. 5, Article III of the 1987 Constitution.
The lawful means afforded by the law are unconstitutional. Firstly, instituting
measures and incentives to bring people of different faiths together is a violation to the
non-establishment clause as accorded in one of the two principal parts of Section 5 in
the Bill of Rights. It is contrary to the purpose of the non-establishment clause which is
expressed through voluntarism and insulation of the political process from interfaith
dissension. Voluntarism as a value is both personal and social. As a personal value, it is
nothing more than the inviolability of the human conscience which is protected by the
free exercise clause. As a social value, protected by the non-establishment clause, it
means that the growth of a religious sect as social force must come from the voluntary
support of its members because of the belief that both spiritual and secular society will
benefit if religions are allowed to compete on their own intrinsic merit without benefit of
official patronage. Instituting measures and incentives to bring people of different faiths
together is directly or indirectly tantamount to compelling them to gather together. This
signifies lack of volunteerism on getting them to pursue a dialogue. In such a case, their
consent in getting them to agree in the engagement may be vitiated through undue
influence on the part of the commission in charged to facilitate such talk.
Jurisprudence indicates that the non-establishment clause prohibits all
government that might redound to the benefit of religion. To be allowable, government
aid must have a (1) secular legislative purpose; (2) must have a primary effect that

neither advances nor inhibits religions; and (3) must not require excessive entanglement
with recipient institutions.
The act of encouraging religious solidarity by instituting measures and incentives
to bring people of different faiths together so that they can understand each other better
and pursue dialogue instead of conflict does not serve its secular legislative purpose
because its primary effect either advances or inhibits the liberty of the people to
exercise their religion. Bringing people of different faiths together in order to pursue
dialogue collides with the constitutional guarantee of 2freedom not to associate.
Freedom of association is an aspect of freedom of expression and of belief. The
inclusion of an individual in a dialogue imposes upon him a burden on his religious
exercise and commitment, and that it may significantly affect his associational ties with
the other member of his religious group.
Providing funds and support in joint religious celebrations expresses a violation of the
non-establishment principle contemplated not only in the Bill of Rights, but also in Article
VI, Section 29 (2) saying: No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the Armed Forces, or to any penal
institution, or government orphanage or leprosarium. The said provision is accorded in
the limitation of powers set upon the Congress considering that the latter has the control
of the expenditure of public funds. Given that the limits have been explicitly provided in
the Constitution, appropriating funds for the enforcement of this law, in which it may
redound to the benefit of the religious institutions, is plainly unconstitutional. This is also
breaches the wall between the Church and the State. Article II, Section 6 says: The
separation of Church and State shall be inviolable. The Board of Education v. Emerson
(1946) interpreted the clause as: 3Neither a State nor the Federal Government can set
up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one
religion over another. The standard of separation which may take in the form of the
theory of Strict Separation as produced in the line of US jurisprudence anchors on the
premise that an absolute barrier to formal interdependence of religion and state needs
to be erected. Religious institutions could not receive aid, whether direct or indirect,
from the state. Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers.

2 Boy Scouts of America v Dale (2000)

3 Board of Education v. Everson, 330 U.S. 1, 15-16 (1946)

Likewise, starting all government programs, and even in court proceedings, with an
ecumenical prayer representing the Catholic, Protestant, and Muslim religions may
require excessive entanglement with the religious group; consequently violating the
establishment clause of Section 5 of the Bill of Rights. In Engel v. Vitale (1962), the
Supreme Court ruled that nondenominational prayer in public schools violates the
Establishment Clause of the First Amendment (Freedom to Religion). Similarly, allowing
any governmental function with a prayer shall mean government interference with
religion. Since Filipinos adhere to a wide variety of beliefs, it is not appropriate for the
government to endorse any particular belief system (i.e. Catholic, Protestant, and
Muslim religions).
Sec. 3 of R.A. XBYZ is violative of the Bill of Rights.
It provides an amendment to Articles 132 and 133 of the Revised Penal Code,
punishing illegal acts regarding the interruption of religious worship and offending of the
religious feelings, respectively. This amendment increased by two degrees the original
punishment for both acts should any commit them. Instead of initially having Prision
Correcional as punishment for both, such has been worsened to Reclusion Temporal
and is further qualified to Reclusion Perpetua should there be any violence employed.
Such amendment is tantamount to cruel punishment, protected against by Art.
19, Art. III of the 1987 Constitution.
The main guides that may be used to gauge whether certain punishments are
cruel include that 1. A punishment must not be too severe that it degrades the dignity of
human beings, 2. It must not be arbitrarily applied, 3. It must be socially unacceptable
and 4. It must not be excessive, i.e., it must serve a penal purpose more effectively than
a less severe punishment would. Sec. 3 fulfills the fourth standard because it is
excessive in nature and that it serves a penal purpose more effective than a less severe
punishment would.

Sec. 5 violates Art. III of the 1987 Constitution.

In essence, Sections 2 and 3 form a primordial purpose of the entire enactment.
The contention is that both sections are void for violating the pertinent Constitutional
provisions on the rights of the people. Therefore, the law itself cannot stand on its own.
Its invalidation should be sustained. As a matter of statutory construction, the very
essence of RA XBYZ rests on Sections 2 and 3 of said law. Section 5 should also be
invalidated because it provides that the unconstitutionality of any section of the law does
not invalidate the entire law which has been established as not in accordance to legal

basis. The plaintiffs maintain that Section 5 of R.A. XBYZ because of such proposed
contentions.

V. Are these two laws unconstitutional?

Yes. As we have stated earlier, it violates the provisions of Sections 4 & 5, Bill of Rights
of the 1987 Constitution. Section 4 states 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. On the other hand,
Section 5 states that no law shall be passed respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political liberties.

CONCLUSION/ PRAYER FOR RELIEF

Wherefore, we respectfully pray that the Honorable Supreme Court render judgment in
favor of the petitioner that
1. REPUBLIC ACT NO. XAYZ, AN ACT DEFINING AND PENALIZING HATE SPEECH,
ESTABLISHING THE ANTI-HATE SPEECH COMMISSION, AND FOR OTHER
PURPOSES, be declared unconstitutional
2. REPUBLIC ACT NO. XBYZ, AN ACT ENCOURAGING RELIGIOUSSOLIDARITY,
PROVIDING INCENTIVES THEREOF, AMENDING ARTICLES 132 AND 133 OF THE
REVISED PENAL CODE, CREATING THE RELIGIOUS SOLIDARITY COMMISSION,
AND FOR OTHER PURPOSES, be declared unconstitutional