Ateneo de Davao University – College of Law
Criminal Law II | Atty. Paolo Evangelista
Immoral Doctrines, Obscene Publication, and Exhibitions.
PEOPLE v. KOTTINGER
G.R. No. 20569 | 10-29-1923
Facts: On November 24, 1922, detective Juan Tolentino
raided the premises known as Camera Supply Co. at 110
Escolta, Manila. He found and confiscated the post-cards
which subsequently were used as evidenced against J. J.
Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J.
J. Kottinger in the Court of First Instance of Manila. The
information filed in court charged him with living kept for sale
in the store of the Camera Supply Co., obscene and indecent
pictures, in violation of section 12 of Act No, 277. Following
the presentation of evidence by the Government and the
defense, judgment was rendered finding the defendant guilty
of the offenses charged and sentencing him to pay a fine of P50
with subsidiary imprisonment in case of insolvency, and the
costs.
The pictures which it is argued offend against the law
on account of being obscene and indecent, disclose six
different postures of non-Christian inhabitants of the
Philippines. Exhibit A carries the legend "Philippines, Bontoc
Woman." Exhibit A-1 is a picture of five young boys and carries
the legend "Greetings from the Philippines." Exhibit A-2 has
the legend "Ifugao Belle, Philippines. Greetings from the
Philippines." Exhibit A-3 has the legend "Igorrot Girl, Rice Field
Costume." Exhibit A-4 has the legend "Kalinga Girls,
Philippines." Exhibit A-5 has the legend "Moros, Philippines."
Issue: WON pictures portraying the inhabitants of the
country in native dress and as they appear and can be seen in
the regions in which they live, are obscene or indecent.
Held: No.
Act No. 277 is the Philippine Libel Law. But included
therein is a section, No. 12, making obscene or indecent
publications misdemeanors. Said section 12 which, it is
contended by the Government, has here been violated, and
which, appellant argues, does not apply to the information and
the facts, reads as follows:
"Any person who writes, composes, stereotypes, prints, publishes,
sells, or keeps for sale, distributes, or exhibits any obscene or indecent
writing, paper, book, or other matter, or who designs, copies, draws,
engraves, paints, or otherwise prepares any such writing, paper,
book, print, or figure shall be guilty of a misdemeanor and punished
by a fine of not exceeding one thousand dollars or by imprisonment
not exceeding one year, or both."
The word "obscene" and the term "obscenity" may be
defined as meaning something offensive to chastity, decency,
or delicacy. "Indecency" is an act against good behavior and a
just delicacy. The test ordinarily followed by the courts in
determining whether a particular publication or other thing is
obscene within the meaning of the statutes, is whether the
tendency of the matter charged as obscene, is to deprave or
corrupt those who minds are open to such immoral influences
and into whose hands a publication or other article charged as
being obscene may fall. Another test of obscenity is that which
shocks the ordinary and common sense of men as an
indecency. (29 Cyc., 1315; 8 R. C. L., 312.)
The Philippine statute does not attempt to define
obscenity or indecent pictures, writings, papers, or books. But
the words "obscene or indecent" are themselves descriptive.
They are words in common use and every person of average
intelligence understands their meaning. Indeed, beyond the
evidence furnished by the pictures themselves, there is but
little scope for bearing on the issue of obscenity or indecency.
Whether a picture is obscene of indecent must depend upon
the circumstances of the case. (People vs. Muller [1884], 96 N.
Y., 408; 48 Am. Rep., 635.)
The pictures in question merely depict persons as
they actually live, without attempted presentation of persons
in unusual postures or dress. The aggregate judgment of the
Philippine community, the moral sense of all the people in the
Philippines, would not be shocked by photographs of this type.
The Court were convinced that the post-card pictures in this
case cannot be characterized as offensive to chastity, or foul,
or filthy. The Court held that the pictures portraying the
inhabitants of the country in native dress and as they appear
and can be seen in the regions in which they live, are not
obscene or indecent within the meaning of the Libel Law.
PEOPLE v. VIRGINIA APARICI
52 OG 249 | n.d.
Facts: On February 3, 1953, Detectives Nibungco and Jose,
accompanied by photographers Fajardo and Domingo of the
Manila Chronicle, went to Azcaragga Theatre in order to
observe what was being exhibited by the accused Virginia
Aparici there. She was in a dimly lit stage “dancing with her
hips swaying” with nothing on except nylon patches over her
breasts and a “too abbreviated pair of nylon panties to
interrupt her stark nakedness” and around her waist was a
“furry white girdle with a middle piece punctuating attention
on the thing she was supposed to hide.” There were more than
100 customers and all of them were men. Most of them have
been howling and shouting in tagalog: “sigue muna, sigue
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 Ateneo de Davao University – College of Law
Criminal Law II | Atty. Paolo Evangelista
nakakalibog.” Detectives Nibungco and Jose stopped the show
and asked the accused to put on her dress and to surrender to
them her brassiere and panties.
In her defense, she claimed that her performance
(hula-hula dance) was her portrayal of the life of a widow
whose guerilla husband was killed by the Japanese; depicting
the different emotions of the widow such as sadness, anger,
and happiness. She was prosecuted for violation of Article 201
of the Revised Penal Code which penalizes : “3. Those who in
theatres, fairs, cinematographs, or any other place open to
public view, shall exhibit indecent or immoral plays, scenes,
acts and shows.
Issue: WON accused-appellant’s dancing was indecent or
immoral in violation of Art. 201 of the RPC.
Held: Yes, the Court held that the accused had exhibited
indecent or immoral acts.
The test of obscenity is whether the tendency of the
matter charged as obscene is to deprave or corrupt those
whose minds are open to such immoral influences.
The test therefore was satisfied with the crowd’s
reaction. Her defense that the crowd was of lower class was
not supported by any proof. Moreover, it doesn’t matter what
class the crowd belonged to. What is important is Aparici,
while performing the hula-hula dance was able to induced or
encourage the crowd to think of immoral acts.
PEOPLE v. PADAN
G.R. No. L-7295 | 06-28-1957
Facts: In the Court of First Instance of Manila, Marina Padan,
Jose Fajardo, Cosme Espinosa, and Ernesto Reyes were
charged with a violation of Article 201 of the Revised Penal
Code.
At the corner of Morga Extension and Camba
Extension, Tondo, Manila, was a one story building, with a floor
space of eight by fifteen meters which was mainly used for
playing ping-pong. A ping-pong table must have been placed in
the center and on two sides were built benches in tiers, so that
the spectators seated on them could look down and see the
game.
On September 13, 1953, however, the building was
used for a different purpose. It was to be the scene of what
was said to be an exhibition of human "fighting fish", the actual
act of coitus of copulation. It must have been advertised by
word of mouth; tickets therefor were sold at P3 each, and the
show was supposed to begin at 8:00 o'clock in the evening.
About that time of the night, there was already a
crowd around the building, but the people were not admitted
into it until about an hour later, and the show did not begin
until about 9:15. The Manila Police Department must have
gotten wind of the affair; it bought tickets and provided several
of its members who later attended the show, but in plain
clothes, and after the show conducted a raid and made arrests.
At the trial, said policemen testified as to what actually took
place inside the building. About two civilians who attended the
affair gave testimony as to what they saw.
The customers not provided with tickets actually paid
P3 at the entrance to defendant Ernesto Reyes. He also
collected tickets. In all, there were about ninety paying
customers, while about sixteen were allowed to enter free,
presumably friends of the management. Jose Fajardo y Garcia
was clearly the manager of the show. He was at the door to
see to it that the customers either were provided with tickets
or paid P3.00 entrance fee. He even asked them from whom
they had bought the tickets. He ordered that an army steel bed
be placed at the center of the floor, covered with an army
blanket and provided with a pillow. Once the spectators, about
106 in number, were crowded inside that small building, the
show started. Fajardo evidently to arouse more interest
among the customers, asked them to select among two girls
present who was to be one of the principal actors. By pointing
to or holding his hand over the head of each of the two women
one after the other, and judging by the shouts of approval
emitted by the spectators, he decided that defendant Marina
Padan was the subject of popular approval, and he selected
her. After her selection, the other woman named Concha, left.
Without much ado, Fajardo selected Cosme Espinosa
to be Marina's partner. Thereafter, Cosme and Marina
proceeded to disrobe while standing around the bed. When
completely naked, they turned around to exhibit their bodies
to the spectators. Then they indulged in lascivious acts,
consisting of petting, kissing, and touching the private parts of
each other. When sufficiently aroused, they lay on the bed and
proceeded to consummate the act of coitus in three different
positions which we deem unnecessary to describe. The four or
five witnesses who testified for the Government when asked
about their reaction to what they saw, frankly admitted that
they were excited beyond description. Then the police who
were among the spectators and who were previously provided
with a search warrant made the raid, arrested the four
defendants herein, and took pictures of Marina and Cosme still
naked and of the army bed, which pictures were presented as
exhibits during the trial.
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 Ateneo de Davao University – College of Law
Criminal Law II | Atty. Paolo Evangelista
The four accused was found guilty for the crime
charged. They appealed the decision of the CFI but was
dismissed. Because of her plea of guilty in the lower court,
appellant Marina in her appeal does not question her
conviction; she merely urges the reduction of the penalty by
eliminating the prison sentence.
Going to the appeal of Jose Fajardo, while he does not
deny the fact of the commission of the offense charged, he
insists that he was not the manager or the person in charge of
the show or proceedings on the night of September 13, 1953;
that his participation, if he participated at all, was to play the
role of an innocent bystander, but that because of his
popularity in the neighborhood, being popularly known as a
"siga-siga" character, he was requested by the spectators to
select the man and the woman to engage or indulge in the
actual act of coitus before the spectators; that after making the
selection, he did not even care to witness the act but left the
scene and returned to it only when he heard a commotion
produced by the raid conducted by the police.
Issue: Whether or not the contentions of the accused are
meritorious.
Held: No.
The Court believed that the penalty imposed fits the
crime, considering its seriousness. As far as we know, this is the
first time that the courts in this jurisdiction, at least this
Tribunal, have been called upon to take cognizance of an
offense against morals and decency of this kind. We have had
occasion to consider offenses like the exhibition of still or
moving pictures of women in the nude, which we have
condemned for obscenity and as offensive to morals. In those
cases, one might yet claim that there was involved the element
of art; that connoisseurs of the same, and painters and
sculptors might find inspiration in the showing of pictures in
the nude, or the human body exhibited in sheer nakedness, as
models in tableaux vivants. But an actual exhibition of the
sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see
nothing in it but clear and unmitigated obscenity, indecency,
and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting
influence especially on the youth of the land. We repeat that
because of all this, the penalty imposed by the trial court on
Marina, despite her plea of guilty, is neither excessive nor
unreasonable.
There can be no doubt that Jose Fajardo, contrary to
what he claims, was the person in charge of the show. Besides,
as found by the trial court and as shown by some of the tickets
collected from the spectators, submitted as exhibits, said
tickets while bearing on one side printed matter regarding an
excursion to Balara to be held on August 30, 1953, from 7:00
a.m. to 5:00 p.m., sponsored by a certain club, on the other
side appears the following typewritten form, reading:
"P3.00 Admit one
PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.
Time: 8:00 o'clock sharp",
And, superimposed on the same is the rubber stamped name
"Pepe Fajardo," which defendant Fajardo admits to be his
name. Considering all the above circumstances, we agree with
the trial court that Jose Fajardo is the most guilty of the four,
for he was the one who conducted the show and presumably
derived the most profit or gain from the same.
PITA v. PEOPLE
G.R. No. 80806 | 10-05-1989
Facts: Pursuant to an Anti-Smut Campaign initiated by
Manila Mayor Ramon D. Bagatsing, elements of the Special
Anti-Narcotics Group, et al, seized and confiscated from
dealers, distributors, newsstand owners and peddlers along
Manila sidewalks, publications believed to be obscene,
pornographic and indecent and later burned the seized
materials in public at the University belt. Among the
publications seized and burned, was "Pinoy Playboy"
magazines published and co-edited by petitioner Leo Pita.
Pita subsequently filed a case for injunction against
Bagatsing and the police force, seeking to enjoin said
defendants and their agents from confiscating plaintiffs
magazines or preventing the sale or circulation thereof,
claiming that the magazine was a decent one, and that the
publication was protected by the Constitutional guarantees of
freedom of speech and of the press.
The trial court denied the motion for a writ of
preliminary injunction and dismissed the case for lack of merit.
The CA also dismissed Pita’s appeal and ruled that freedom of
the press was not without restraint, as the state had the right
to protect society from pornographic literature that was
offensive to public morals.
Issue: WON the Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding that the police
officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their
determination that they are obscene.
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Criminal Law II | Atty. Paolo Evangelista
Held: Yes. The Court is not convinced that the
private respondents have shown the required proof to justify
a ban and to warrant confiscation of the literature for which
mandatory injunction had been sought below. First of all, they
were not possessed of a lawful court order: (1) finding the said
materials to be pornography, and (2) authorizing them to carry
out a search and seizure, by way of a search warrant.
People v. Kottinger; it ruled that obscenity upon
circumstance on the aggregate sense of the community. It
would render hypothetical community standard.
People v. Go Pin; it is caused reviewed, if for
commercial purpose and if artistic values are commercialized
and gain or profit was main consideration, and audience did
not care for the art. The primary manifestation is the purpose
of commercialization making its obscene removing the artistic
value.
People v. Padan; the concept of redeeming feature
Gonzales v. Kalaw Katigbak; whether the
determination of the obscene, whether the average person
who take dominantly on the point of the material.
It is largely a judicial question, if the law enforcement
if they want to apprehend must submit the question to the
court. You have convinced the judge that there must be
probable cause. It largely rests on the discretion of the judge
and weighed on a case to case.
The court here also applied the Reyes v. Bagatsing
ruling wherein the clear and present danger was applied in
showing if whether or not the publication is also considered
obscene.
However, it was shown that the seizure was without
a valid search warrant, and that it does not fall under the valid
instances of warrantless searches. Regardless, the case still
considered moot and academic for the seized materials were
already destroyed.
Guidelines Laid Down By the SC
(a) The authorities must apply for the issuance of a search
warrant from a judge, if in their opinion, an obscenity rap is in
order
(b) The authorities must convince the court that the materials
sought to be seized are "obscene", and pose a clear and
present danger of an evil substantive enough to warrant State
interference and action.
(c) The judge must determine whether or not the same are
indeed "obscene:" the question is to be resolved on a case-to-
case basis and on His Honor's sound discretion.
(d) If, in the opinion of the court, probable cause exists, it may
issue the search warrant prayed for.
(e) The proper suit is then brought in the court under Article
201 of the Revised Penal Code.
(f) Any conviction is subject to appeal. The appellate court may
assess whether or not the properties seized are indeed
"obscene".
FERNANDO v. CA
G.R. No. 159751 | 12-06-2006
Facts: The RTC convicted Gaudencio E. Fernando and Rudy
Estorninos for violation of Article 201[2] of the Revised Penal
Code, as amended by Presidential Decree Nos. 960 and 969,
and sentenced each to imprisonment of four (4) years and one
(1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.
Acting on reports of sale and distribution of
pornographic materials, officers of the Philippine National
Police Criminal Investigation and Detection Group in the
National Capital Region (PNP-CIDG NCR) conducted police
surveillance on the store bearing the name of Gaudencio E.
Fernando Music Fair (Music Fair). On May 5, 1999, Judge
Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article
201 of the Revised Penal Code against petitioner Gaudencio E.
Fernando and a certain Warren Tingchuy. The warrant ordered
the search of Gaudencio E. Fernando Music Fair at 564 Quezon
Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of
the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene
pictures;
c. Copies of Hustler International Magazine with nude
obscene pictures; and
d. Copies of VHS tapes containing pornographic shows.
On the same day, police officers of the PNP-CIDG NCR
served the warrant on Rudy Estorninos, who, according to the
prosecution, introduced himself as the store attendant of
Music Fair. The police searched the premises and confiscated
twenty-five (25) VHS tapes and ten (10) different magazines,
which they deemed pornographic. Petitioners with Warren
Tingchuy, werecharged for selling and exhibiting obscene
copies of x-rated VHS Tapes pursuant to Article 201 of the
Revised Penal Code.
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 Ateneo de Davao University – College of Law
Criminal Law II | Atty. Paolo Evangelista
Petitioners contend that the prosecution failed to
prove that at the time of the search, they were selling
pornographic materials. Fernando contends that since he was
not charged as the owner of an establishment selling obscene
materials, the prosecution must prove that he was present
during the raid and that he was selling the said materials.
Moreover, he contends that the appellate court's reason for
convicting him, on a presumption of continuing ownership
shown by an expired mayor's permit, has no sufficient basis
since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he
was not an attendant in Music Fair, nor did he introduce
himself so.
The Solicitor General counters that owners of establishments
selling obscene publications are expressly held liable under
Article 201, and petitioner Fernando's ownership was
sufficiently proven. As the owner, according to the Solicitor
General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor
General also maintains that Estorninos was identified by
Barangay Chairperson Socorro Lipana as the store attendant,
thus he was likewise liable.
Issue: WON the appellate court erred in affirming the
petitioners’ conviction.
Held: No.
As obscenity is an unprotected speech which the
State has the right to regulate, the State in pursuing its
mandate to protect, as parens patriae, the public from
obscene, immoral and indecent materials must justify the
regulation or limitation.
One such regulation is Article 201 of the Revised Penal
Code. To be held liable, the prosecution must prove that (a)
the materials, publication, picture or literature are obscene;
and (b) the offender sold, exhibited, published or gave away
such materials. Necessarily, that the confiscated materials are
obscene must be proved.
We emphasized that mere possession of obscene
materials, without intention to sell, exhibit, or give them away,
is not punishable under Article 201, considering the purpose of
the law is to prohibit the dissemination of obscene materials
to the public. The offense in any of the forms under Article 201
is committed only when there is publicity. The law does not
require that a person be caught in the act of selling, giving
away or exhibiting obscene materials to be liable, for as long
as the said materials are offered for sale, displayed or exhibited
to the public.
In the present case, we find that petitioners are
engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant
was the Gaudencio E. Fernando Music Fair, named after
petitioner Fernando. The mayor's permit was under his name.
Even his bail bond shows that he lives in the same place.
Moreover, the mayor's permit dated August 8, 1996, shows
that he is the owner/operator of the store. While the mayor's
permit had already expired, it does not negate the fact that
Fernando owned and operated the establishment. It would be
absurd to make his failure to renew his business permit and
illegal operation a shield from prosecution of an unlawful act.
Furthermore, when he preferred not to present contrary
evidence, the things which he possessed were presumptively
his.
Petitioner Estorninos is likewise liable as the store
attendant actively engaged in selling and exhibiting the
obscene materials. Prosecution witness Police Inspector
Tababan, who led the PNP-CIDG NCR that conducted the
search, identified him as the store attendant upon whom the
search warrant was served. Tababan had no motive for
testifying falsely against Estorninos and we uphold the
presumption of regularity in the performance of his duties.
Lastly, this Court accords great respect to and treats with
finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or
arbitrariness in their findings. In our view, no reversible error
was committed by the appellate court as well as the trial court
in finding the herein petitioners guilty as charged.
PEOPLE v. SITON
G.R. No. 169364 | 09-18-2009
Facts: Respondents Evangeline Siton and Krystel Kate
Sagarano were charged with vagrancy pursuant to Article 202
(2) of the Revised Penal Code in two separate Informations
dated November 18, 2003, raffled to Branch 3 of the Municipal
Trial Court in Cities, Davao City.
In the information, it was stated therein that on
November 14, 2003, Evangeline Siton and Krystel Kate
Sagarano were caught wandering and loitering around San
Pedro and Legaspi Streets, without any visible means to
support herself nor lawful and justifiable purpose.
Instead of submitting their counter-affidavits as
directed, respondents filed separate Motions to Quash on the
ground that Article 202 (2) is unconstitutional for being vague
and overbroad. Article 202 (2) reads: “2. Any person found
loitering about public or semi-public buildings or places or
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 Ateneo de Davao University – College of Law
Criminal Law II | Atty. Paolo Evangelista
tramping or wandering about the country or the streets
without visible means of support.”
In an Order dated April 28, 2004, the municipal trial
court denied the motions and directed respondents anew to
file their respective counter-affidavits. The municipal trial
court also declared that the law on vagrancy was enacted
pursuant to the State's police power and justified by the Latin
maxim "salus populi est suprema lex," which calls for the
subordination of individual benefit to the interest of the
greater number.
The municipal trial court also noted that in the
affidavit of the arresting police officer, SPO1 Jay Plaza, it was
stated that there was a prior surveillance conducted on the
two accused in an area reported to be frequented by vagrants
and prostitutes who solicited sexual favors. Hence, the
prosecution should be given the opportunity to prove the
crime, and the defense to rebut the evidence.
Respondents thus filed an original petition for
certiorari and prohibition with the Regional Trial Court of
Davao City, directly challenging the constitutionality of the
anti-vagrancy law, claiming that the definition of the crime of
vagrancy under Article 202 (2), apart from being vague, results
as well in an arbitrary identification of violators, since the
definition of the crime includes in its coverage persons who are
otherwise performing ordinary peaceful acts. They likewise
claimed that Article 202 (2) violated the equal protection
clause under the Constitution because it discriminates against
the poor and unemployed, thus permitting an arbitrary and
unreasonable classification.
The RTC granted the petition and declared Article
202(2) of the RPC as unconstitutional for being vague and for
violating the equal protection clause. On its pronouncement
that Article 202 (2) violated the equal protection clause of the
Constitution, the trial court declared:
“The application of the Anti-Vagrancy Law, crafted in
the 1930s, to our situation at present runs afoul of the equal
protection clause of the constitution as it offers no reasonable
classification between those covered by the law and those who
are not.
Class legislation is such legislation which denies rights
to one which are accorded to others, or inflicts upon one
individual a more severe penalty than is imposed upon another
in like case offending.
Applying this to the case at bar, since the definition of
Vagrancy under Article 202 of the Revised Penal Code offers no
guidelines or any other reasonable indicators to differentiate
those who have no visible means of support by force of
circumstance and those who choose to loiter about and bum
around, who are the proper subjects of vagrancy legislation, it
cannot pass a judicial scrutiny of its constitutionality.”
Hence, this petition for review on certiorari.
Issue: WON the RTC committed a reversible error in
declaring Article 202(2) as unconstitutional.
Petitioner argues that every statute is presumed valid
and all reasonable doubts should be resolved in favor of its
constitutionality; that, citing Romualdez v. Sandiganbayan,[13]
the overbreadth and vagueness doctrines have special
application to free-speech cases only and are not appropriate
for testing the validity of penal statutes; that respondents
failed to overcome the presumed validity of the statute, failing
to prove that it was vague under the standards set out by the
Courts; and that the State may regulate individual conduct for
the promotion of public welfare in the exercise of its police
power.
On the other hand, respondents argue against the
limited application of the overbreadth and vagueness
doctrines. They insist that Article 202 (2) on its face violates the
constitutionally-guaranteed rights to due process and the
equal protection of the laws; that the due process vagueness
standard, as distinguished from the free speech vagueness
doctrine, is adequate to declare Article 202 (2)
unconstitutional and void on its face; and that the presumption
of constitutionality was adequately overthrown.
Held: Yes.
Criminally, public order laws encompass a whole
range of acts - from public indecencies and immoralities, to
public nuisances, to disorderly conduct. The acts punished are
made illegal by their offensiveness to society's basic
sensibilities and their adverse effect on the quality of life of the
people of society. For example, the issuance or making of a
bouncing check is deemed a public nuisance, a crime against
public order that must be abated.[33] As a matter of public
policy, the failure to turn over the proceeds of the sale of the
goods covered by a trust receipt or to return said goods, if not
sold, is a public nuisance to be abated by the imposition of
penal sanctions.[34] Thus, public nuisances must be abated
because they have the effect of interfering with the
comfortable enjoyment of life or property by members of a
community.
Article 202 (2) does not violate the equal protection
clause; neither does it discriminate against the poor and the
unemployed. Offenders of public order laws are punished not
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Criminal Law II | Atty. Paolo Evangelista

for their status, as for being poor or unemployed, but for and the President of the Philippines, a law has been carefully
conducting themselves under such circumstances as to studied, crafted and determined to be in accordance with the
endanger the public peace or cause alarm and apprehension in fundamental law before it was finally enacted.
the community. Being poor or unemployed is not a license or
It must not be forgotten that police power is an
a justification to act indecently or to engage in immoral
inherent attribute of sovereignty. It has been defined as the
conduct.
power vested by the Constitution in the legislature to make,
Vagrancy must not be so lightly treated as to be ordain, and establish all manner of wholesome and reasonable
considered constitutionally offensive. It is a public order crime laws, statutes and ordinances, either with penalties or without,
which punishes persons for conducting themselves, at a not repugnant to the Constitution, as they shall judge to be for
certain place and time which orderly society finds unusual, the good and welfare of the commonwealth, and for the
under such conditions that are repugnant and outrageous to subjects of the same. The power is plenary and its scope is vast
the common standards and norms of decency and morality in and pervasive, reaching and justifying measures for public
a just, civilized and ordered society, as would engender a health, public safety, public morals, and the general welfare.
justifiable concern for the safety and well-being of members of As an obvious police power measure, Article 202(2) must
the community. therefore be viewed in a constitutional light.
Instead of taking an active position declaring public
order laws unconstitutional, the State should train its eye on
their effective implementation, because it is in this area that
the Court perceives difficulties. Red light districts abound,
gangs work the streets in the wee hours of the morning,
dangerous robbers and thieves ply their trade in the trains
stations, drunken men terrorize law-abiding citizens late at
night and urinate on otherwise decent corners of our streets.
Rugby-sniffing individuals crowd our national parks and busy
intersections. Prostitutes wait for customers by the roadside
all around the metropolis, some even venture in bars and
restaurants. Drug-crazed men loiter around dark avenues
waiting to pounce on helpless citizens. Dangerous groups
wander around, casing homes and establishments for their
next hit. The streets must be made safe once more. Though a
man's house is his castle, outside on the streets, the king is fair
game. The dangerous streets must surrender to orderly
society.
On Presumption of Constitutionality
Finally, we agree with the position of the State that
first and foremost, Article 202 (2) should be presumed valid
and constitutional. When confronted with a constitutional
question, it is elementary that every court must approach it
with grave care and considerable caution bearing in mind that
every statute is presumed valid and every reasonable doubt
should be resolved in favor of its constitutionality. The policy
of our courts is to avoid ruling on constitutional questions and
to presume that the acts of the political departments are valid
in the absence of a clear and unmistakable showing to the
contrary. To doubt is to sustain, this presumption is based on
the doctrine of separation of powers which enjoins upon each
department a becoming respect for the acts of the other
departments. The theory is that as the joint act of Congress
7