MOTION TO QUASH

COME NOW defendants, by counsel and unto this Honorable Court,

most respectfully move to quash the information filed against the

defendants on the ground of lack of jurisdiction over the subject

matter.

ARGUMENTS

Defendants are indicted for committing the crime of "Unjust Vexation"

that is punished under the Article 287, Paragraph 2 of the Revised

Penal Code; Said provision states that:

"Any other coercions or unjust vexations shall be punished by arresto

menor or a fine ranging from 5 pesos to 200 pesos, or both."(emphasis

ours)

 

Defendants, however, most respectfully submit that this Honorable

Court lacks jurisdiction over the subject matter of the offense for the

reason that article 287, paragraph 2 of the revised penal code that

punishes "unjust vexations" cannot be a basis of any criminal

prosecution for being NULL AND VOID AND patently unconstitutional on

its face because of the FOLLOWING reasons:

a)Said penal provision condemns no specific or definite act or omission

thus failing to define any crime or felony;

b)Said penal provision is so indefinite, vague and overbroad as not to

enable it to be known what ACT is forbidden;

c)Such vagueness and overbreadth result to violation of the due

process clause and the right to be informed of the nature of the

offense charged;

d) such vagueness and overbreadth likewise amount to an invalid

delegation by Congress of legislative power to the courts to determine

what acts should be held to be criminal and punishable.

e) a criminal or penal legislation must clearly define or specify the

particular act or acts punished

It is a well-established doctrine that a criminal or penal legislation must

clearly define or specify the particular acts or omissions punished. As

early as 1916, in the case of "United States vs. Luling, 34 Phil. 725, our

Honorable Supreme Court had the occasion to hold that:

1

"In some of the States, as well as in England, there exist what are

known as common law offenses. In the Philippine Islands no act is a

crime unless it is made so by statute. The state having the right to

declare what acts are criminal, within certain well defined limitations,

has a right to specify what act or acts shall constitute a crime, as well

as what act or acts shall constitute a crime, as well as what proof shall

constitute prima facie evidence of guilt, and then to put upon the

defendant the burden of showing that such act or acts are innocent

and are not committed with any criminal intent or intention."(emphasis

and underscoring ours, cited in the fairly recent case of Dizon-

Pamintuan v. People of the Philippines, G.R. No. 111426, July 11, 1994)

(emphasis and underscoring ours).

Two years later, this was followed by a scholarly exposition by Justice

Johnson in the case of In re: R. MCCULLOCH DICK, 38 Phil. 41, April 16,

1918, where he stated that:

"x x x In the Philippine Islands no act is a crime unless it is made so by

law. The law must specify the particular act or acts constituting the

crime. If that were not so, the inhabitants could not know when they

would be liable to be arrested, tried and punished. Otherwise the

mandatory provisions of the law, that all criminal laws shall be

prescribed, would prove to be a pitfall and a snare. The inhabitants of

the Philippine Islands, whether citizens, denizens or friendly aliens,

have a right to know, in advance of arrest, trial and punishment, the

particular acts for which they may be so tried. They cannot be arrested

and tried, and then be informed for the first time that their acts have

been subsequently made a crime, and be punished therefor. x x

x"(emphasis and underscoring ours).

Justice (later Chief Justice) Fernando in his concurring opinion in the

case of PEOPLE v. CABURAL, G.R. No. L-34105, February 4, 1983, also

made a similar observation, stating that:

"The maxim Nullum crimen nulla poena sine lege has its roots in

history. It is in accordance with both centuries of civil law and common

law tradition. Moreover, it is an indispensable corollary to a regime of

liberty enshrined in our Constitution. It is of the essence then that

while anti-social acts should be penalized, there must be a clear

definition of the punishable offense as well as the penalty that may be

imposed - a penalty, to repeat, that can be fixed by the legislative

body, and the legislative body alone. So constitutionalism mandates,

2

with its stress on jurisdictio rather than guvernaculum. The judiciary as

the dispenser of justice through law must be aware of the limitation on

its own power." (emphasis and underscoring ours).

The rationale of said doctrine that a criminal or penal legislation must

clearly define or specify the particular act or acts punished is ably

explained by the United Stated Supreme Court in the case of

LANZETTA v. STATE OF NEW JERSEY, 306 U.S. 451, where it held that:

"x x x It is the statute, not the accusation under it, that prescribes the

rule to govern conduct and warns against transgression. x x x No one

may be required at peril of life, liberty or property to speculate as to

the meaning of penal statutes. All are entitled to be informed as to

what the State commands or forbids. x x x" (emphasis and

underscoring ours).

Article 287, par. 2 of the Revised Penal Code condemns no SPECIFIC

act or omission!Therefore, it does not define any crime or felony.

Paragraph 2 of Article 287 of the Revised Penal Code does not define,

much less specify, the acts constituting or deemed included in the

term "unjust vexations" resulting to making the said provision a sort of

a "catch-all" provision patently offensive to the due process clause;

The right to define and punish crimes is an attribute of sovereignty.

Each State has the authority, under its police power, to define and

punish crimes and to lay down the rules of criminal procedure.

Pursuant to this power to define and punish crimes, the State may not

punish an act as a crime unless it is first defined in a criminal statute

so that the people will be forewarned as to what act is punishable or

not. The people cannot be left guessing at the meaning of criminal

statutes;

Moreover, Article 3 of the Revised Penal Code defines felonies (delitos)

as "acts or omissions" punishable by law. Article 287, Par. 2 of the

Revised Penal Code condemns no specific act or omission! Therefore, it

does not define any crime or felony!

Philippine Jurisprudence is replete with examples that would readily

show that Art. 287, Par. 2 of the Revised Penal Code has not been used

to prosecute a well-defined or specific criminal act.Instead, it was used

as a "catch-all" provision to prosecute acts which are not expressly

made criminal by any other provision of the Revised Penal Code. This is

3

anathema to criminal due process that requires notice of what specific

act or omission is punished by law;

An examination of the annals of our jurisprudence would likewise show

that Art. 287, par. 2 of the Revised Penal Code has not been used to

punish a specific act:

a)In People v. Reyes, 60 Phil. 369, August 23, 1934, accused were

found guilty of unjust vexation by their act of disturbing or interrupting

a ceremony of a religious character;

b)In Lino v. Fugoso, 77 Phil. 983, January 30, 1947, it was used to

prosecute the accused of unjust vexation committed by stopping the

jeep driven by the complainant in a threatening attitude and without

any just cause therefor and telling him to stop driving for the City of

Manila while the strike of city laborers was still going on;

c)In People v. Reyes, 98 Phil. 646, March 23, 1956, it was held that the

act of seizing, taking and holding possession of passenger jeep

belonging to complainant, without the knowledge and consent of the

latter, for the purpose of answering for the debt of the said owner,

constitutes unjust vexation;

d)In People v. Yanga, 100 Phil. 385, November 28, 1956, accused was

convicted of unjust vexation for the act of compelling the complainant

to do something against his will, by holding the latter around the neck

and dragging him from the latter's residence to the police outpost;

e)In People v. Abuy, G.R. No. L-17616, May 30, 1962, the accused was

prosecuted for unjust vexation for the act of embracing and taking hold

of the wrist of the complainant;

f)In People v. Carreon, G.R. No. L-17920, May 30, 1962, accused was

convicted of unjust vexation by the act of threatening the complainant

by holding and pushing his shoulder and uttering to the latter in a

threatening tone the following words: "What inspection did you make

to my sister in the mountain when you are not connected with the

Bureau of Education?"

g)In People v. Gilo, G.R. No. L-18202, April 30, 1964, the Court held

that the absence of an allegation of "lewd design" in a complaint for

acts of lasciviousness converts the act into unjust vexation;

4

h)In Andal v. People of the Philippines, G.R. No. L-29814, March 28,

1969, accused were found guilty of unjust vexation under an

information charging them with the offense of offending religious

feelings, by the performance of acts notoriously offensive to the

feelings of the faithful;

i)In People v. Maravilla, G.R. No. L-47646, September 19, 1988, a

accused was convicted of unjust vexation for the act of grabbing the

left breast of the complainant against her will; and

j) Recently in Kwan v. Court of Appeals, G.R. No. 113006, November

23, 2000, the act of abruptly cutting off the electric, water pipe and

telephone lines of a business establishment causing interruption of its

business operations during peak hours was held as unjust vexation;

From the above-cited cases, it clearly appears that Art. 287, par. 2 of

the Revised Penal Code does not punish a specific act.Instead, any and

all kind of acts that are not specifically covered by any other provision

of the Revised Penal Code and which may cause annoyance, irritation,

vexation, torment, distress or disturbance to the mind of the person to

whom it is directed may be punished as unjust vexation; art. 287, par.

2 of the revised penal code suffers from A CONGENITAL DEFECT OF

vagueness and must be stricken down.

The term "unjust vexation" is a highly imprecise and relative term that

has no common law meaning or settled definition by prior judicial or

administrative precedents; Thus, for its vagueness and overbreadth,

said provision violates due process in that it does not give fair warning

or sufficient notice of what it seeks to penalize;

This kind of challenge to the constitutionality of a penal statute on

ground of vagueness and overbreadth is not entirely novel in our

jurisdiction. In an en banc decision in the case of GONZALES v.

COMELEC, G.R. No. L-27833, April 18, 1969, re: Constitutionality of

Republic Act No. 4880, our Honorable Supreme Court had the occasion

to rule that the terms "election campaign" and "partisan political

activity" which are punished in said R.A. 4880 would have been void

for their vagueness were it not for the express enumeration of the acts

deemed included in the said terms. The Supreme Court held:

"The limitation on the period of "election campaign"or "partisan

political activity" calls for a more intensive scrutiny. According to

Republic Act No. 4880: "It is unlawful for any person whether or not a

5

voter or candidate, or for any group or association of persons, whether

or not a political party or political committee, to engage in an election

campaign or partisan political activity except during the period of one

hundred twenty days immediately preceding an election involving a

public office voted for at large and ninety days immediately preceding

an election for any other elective public office. The term 'candidate'

refers to any person aspiring for or seeking an elective public office

regardless of whether or not said person has already filed his

certificate of candidacy or has been nominated by any political party

as its candidate. The term 'election campaign' of 'partisan political

activity' refers to acts designed to have a candidate elected or not or

promote the candidacy of a person or persons to a public office . . ."

"If that is all there is to that provision, it suffers from the fatal

constitutional infirmity of vagueness and may be stricken down. x x x x

x x x x x x x x.

"There are still constitutional questions of a serious character then to

be faced. The practices which the act identifies with "election

campaign" or"partisan political activity" must be such that they are

free from the taint of being violative of free speech, free press,

freedom of assembly, and freedom of association. What removes the

sting from constitutional objection of vagueness is the enumeration of

the acts deemed included in the terms "election campaign" or

"partisan political activity." (emphasis and underscoring ours).

Article 287, par. 2 of the Revised Penal Code punishes "unjust

vexations" and that is all there is to it! As such, applying the

incontestable logic of the Supreme Court in said case of GONZALES v.

COMELEC would lead us to the inescapable conclusion that said penal

provision suffers from the fatal constitutional infirmity of vagueness

and must be stricken down;

In the case of Connally v. General Construction Co., 269 U.S. 385, cited

by our own Supreme Court en banc in the case of Ermita-Malate Hotel

and Motel Operators Assn., Inc. v. City Mayor of Manila, G.R. No. L-

24693, July 31, 1967), the United States Supreme Court ruled:

"That the terms of a penal statute creating a new offense must be

sufficiently explicit to inform those who are subject to it what conduct

on their part will render them liable to its penalties is a well-recognized

requirement, consonant alike with ordinary notions of fair play and the

6

settled rules of law; and a statute which either forbids or requires the

doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application

violates the first essential of due process of law." (emphasis and

underscoring ours).

In fact, it is worst in the case of the 2nd Paragraph of Article 287 of the

Revised Penal Code because it punishes "unjust vexations" without

even defining or enumerating the acts constituting the said crime thus

leaving men of common intelligence necessarily guessing at its

meaning and differing as to its application in complete disregard of

constitutional due process;

Our Supreme Court in the case of U.S. v. NAG TANG HO, 43 Phil. 1, held

that one cannot be convicted of a violation of a law that fails to set up

an ascertainable standard of guilt. Said ruling cites the landmark case

of U.S. v. L. COHEN GROCERY CO., 255 U.S. 81, where the United

States Supreme Court in striking down Section 4 of the Federal Food

Control Act of August 10, 1917, as amended, as unconstitutional,

stated that:

"The sole remaining inquiry, therefore, is the certainty or uncertainty

of the text in question, that is, whether the words 'that it is hereby

made unlawful for any person willfully ... to make any unjust or

unreasonable rate or charge in handling or dealing in or with any

necessaries,' constituted a fixing by Congress of an ascertainable

standard of guilt and are adequate to inform persons accused of

violation thereof of the nature and cause of the accusation against

them. That they are not, we are of opinion, so clearly results from their

mere statement as to render elaboration on the subject wholly

unnecessary. Observe that the section forbids no specific or definite

act. It confines the subject matter of the investigation which it

authorizes to no element essentially inhering in the transaction as to

which it provides. It leaves open, therefore, the widest conceivable

inquiry, the scope of which no one can foresee and the result of which

no one can foreshadow or adequately guard against. In fact, we see no

reason to doubt the soundness of the observation of the court below in

its opinion to the effect that, to attempt to enforce the section would

be the exact equivalent of an effort to carry out a statute which in

terms merely penalized and punished all acts detrimental to the public

interest when unjust and unreasonable in the estimation of the court x

x x (emphasis and underscoring ours).

7

Recently, in COATES v. CITY OF CINCINNATI, 402 U.S. 611, the United

States Supreme Court passed upon the issue of constitutionality of a

Cincinnati, Ohio, ordinance that provides that:

It shall be unlawful for three or more persons to assemble, except at a

public meeting of citizens, on any of the sidewalks, street corners,

vacant lots, or mouths of alleys, and there conduct themselves in a

manner annoying to persons passing by, or occupants of adjacent

buildings. Whoever violates any of the provisions of this section shall

be fined not exceeding fifty dollars ($50.00), or be imprisoned not less

than one (1) nor more than thirty (30) days or both. Section 901-L6,

Code of Ordinances of the City of Cincinnati. (emphasis and

underscoring ours).

In hammering down the constitutionality of the above-cited Cincinnati,

Ohio ordinance in its landmark decision, the United States Supreme

Court held that:

Conduct that annoys some people does not annoy others. Thus, the

ordinance is vague, not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative

standard, but rather in the sense that no standard of conduct is

specified at all. As a result, men of common intelligence must

necessarily guess at its meaning. Connally v. General Construction Co.,

269 U.S. 385, 391.

It is said that the ordinance is broad enough to encompass many types

of conduct clearly within the city's constitutional power to prohibit. And

so, indeed, it is. The city is free to prevent people from blocking

sidewalks, obstructing traffic, littering streets, committing assaults, or

engaging in countless other forms of antisocial conduct. It can do so

through the enactment and enforcement of ordinances directed with

reasonable specificity toward the conduct to be prohibited. It cannot

constitutionally do so through the enactment and enforcement of an

ordinance whose violation may entirely depend upon whether or not a

policeman is annoyed.(emphasis and underscoring ours).

Same things can be said of Art. 287, par. 2 of the Revised Penal Code

that punishes unjust vexations. As previously shown, the term"unjust

vexations" is broad enough to encompass many types of acts or

conduct. But while these acts of types of conduct are within the State's

police power to prohibit and punish, it cannot however constitutionally

8

do so when its violation may entirely depend upon whether or not

another is vexed or annoyed by said act or conduct and whether or not

said act or conduct is unjust is the estimation of the court;

ARTICLE 287, PAR. 2 OF THE REVISED PENAL CODE IS AN INVALID

DELEGATION OF THE LEGISLATIVE POWER to DEFINE what acts should

be held to be criminal and punishable.

The failure of Art. 287, par. 2 of the Revised Penal Code to define or

specify the act or omission that it punishes likewise amounts to an

invalid delegation by Congress of legislative power to the courts to

determine what acts should be held to be criminal and punishable.

Potestas delegata non delegare potest. What has been delegated

cannot be delegated. This doctrine is based on the ethical principle

that such as delegated power constitutes not only a right but a duty to

be performed by the delegate through the instrumentality of his own

judgment and not through the intervening mind of another (United

States v. Barrias, 11 Phil. 327, 330);

Congress alone has power to define crimes. This power as an attribute

of sovereignty may not be delegated to the courts. When a criminal

legislation leaves the halls of Congress, it must be complete in itself in

that it must clearly define and specify the acts or omissions deemed

punishable; and when it reaches the courts, there must be nothing left

for the latter to do, except to determine whether person or persons

indicted are guilty of committing the said acts or omissions defined

and made punishable by Congress. Otherwise, borrowing the immortal

words of Justice Isagani Cruz in Ynot v. Intermediate Appellate Court

(148 SCRA 659), the law becomes a "roving commission," a wide and

sweeping authority that is not "canalized within banks that keep it from

overflowing," in short a clearly profligate and therefore invalid

delegation of legislative powers;

Art. 287, par. 2 of the Revised Penal Code fails to set an immutable

and ascertainable standard of guilt, but leaves such standard to the

variant and changing views and notions of different judges or courts

which are called upon to enforce it. Instead of defining the specific acts

or omissions punished, it leaves to the courts the power to determine

what acts or types of conduct constitute "unjust vexation". Moreover,

liability under the said provision is also made dependent upon the

varying degrees of sensibility and emotions of people. It depends upon

whether or not another is vexed or annoyed by said act or conduct. As

9

previously intimated, one cannot be convicted of a violation of a law

that fails to set up an immutable and an ascertainable standard of

guilt.

Conclusion

In view of all the foregoing, Defendants submit that Art. 287, par. 2 of

the Revised Penal Code that punishes "unjust vexations" is

unconstitutional on its face for its fatal failure to forbid a specific or

definite act or conduct resulting to its congenital vagueness and

overbreadth which are anathema to constitutional due process and the

right to be informed of the nature of the offense charged;

Moreover, by leaving it to the judiciary to determine the "justness" or

"unjustness" of an act or conduct that is not clearly defined or specified

by law constitutes a fixing by Congress of an unascertainable standard

of guilt and therefore an invalid delegation, if not an abdication, of

legislative power;

Therefore, the conclusion is inevitable that Art. 287, par. 2 of the

Revised Penal Code, being facially unconstitutional, cannot be a basis

of any criminal prosecution. As such, there is no offense to speak of

and consequently, this Honorable Court cannot acquire any jurisdiction

whatsoever to try the defendants of the charge of "unjust vexation".

P R A Y E R

WHEREFORE, it view of all the foregoing, it is most respectfully prayed

that the information be quashed, and defendants discharged.

Other relief just and equitable are likewise prayed for.

_____________, Philippines, __Date__.

(COUNSEL)

(NOTICE OF HEARING)

(EXPLANATION)

COPY FURNISHED:

OPPOSING COUNSEL

10