Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 104408 June 21, 1993

METRO MANILA TRANSIT CORPORATION, petitioner,

vs.

THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.

Office of the Government Corporate Counsel for petitioner.

Renato P. Decena and Restituto Abjero for private respondent.

REGALADO, J.:

This appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due
diligence in the selection and supervision of employees as its defense against liability resulting from
a vehicular collision. With the facility by which such a defense can be contrived and our country
having reputedly the highest traffic accident rate in its geographical region, it is indeed high time for
us to once again address this matter which poses not only a litigation issue for the courts but affects
the very safety of our streets.

The facts of the case at bar are recounted for us by respondent court, thus —

At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita Custodio boarded
as a paying passenger a public utility jeepney with plate No. D7 305 PUJ Pilipinas 1979, then driven
by defendant Agudo Calebag and owned by his co-defendant Victorino Lamayo, bound for her work
at Dynetics Incorporated located in Bicutan, Taguig, Metro Manila, where she then worked as a
machine operator earning P16.25 a day. While the passenger jeepney was travelling at (a) fast clip
along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving vehicle, a Metro Manila
Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB (Philippines) "79 driven by
defendant Godofredo C. Leonardo was negotiating Honeydew Road, Bicutan, Taguig, Metro Manila
bound for its terminal at Bicutan. As both vehicles approached the intersection of DBP Avenue and
Honeydew Road they failed to slow down and slacken their speed; neither did they blow their horns
to warn approaching vehicles. As a consequence, a collision between them occurred, the passenger
jeepney ramming the left side portion of the MMTC bus. The collision impact caused plaintiff-
appellant Nenita Custodio to hit the front windshield of the passenger jeepney and (she) was thrown
out therefrom, falling onto the pavement unconscious with serious physical injuries. She was
brought to the Medical City Hospital where she regained consciousness only after one (1) week.
Thereat, she was confined for twenty-four (24) days, and as a consequence, she was unable to work
for three and one half months (31/2).1

A complaint for damages2 was filed by herein private respondent, who being then a minor was
assisted by her parents, against all of therein named defendants following their refusal to pay the
expenses incurred by the former as a result of the collision.

Said defendants denied all the material allegations in the complaint and pointed an accusing finger
at each other as being the party at fault. Further, herein petitioner Metro Manila Transit Corporation
(MMTC), a government-owned corporation and one of the defendants in the court a quo, along with
its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim and counterclaim3
that the MMTC bus was driven in a prudent and careful manner by driver Leonardo and that it was
the passenger jeepney which was driven recklessly considering that it hit the left middle portion of
the MMTC bus, and that it was defendant Lamayo, the owner of the jeepney and employer of driver
Calebag, who failed to exercise due diligence in the selection and supervision of employees and
should thus be held solidarily liable for damages caused to the MMTC bus through the fault and
negligence of its employees.

Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and counterclaim4
that the damages suffered by therein plaintiff should be borne by defendants MMTC and its driver,
Godofredo Leonardo, because the latter's negligence was the sole and proximate cause of the
accident and that MMTC failed to exercise due diligence in the selection and supervision of its
employees.

By order of the trial court, defendant Calebag was declared in default for failure to file an answer.5
Thereafter, as no amicable settlement was reached during the pre-trial conference,6 trial on the
merits ensued with the opposing parties presenting their respective witnesses and documentary
evidence.

Herein private respondent Nenita Custodia, along with her parents, were presented as witnesses for
the prosecution. In addition, Dr. Edgardo del Mundo, the attending physician, testified on the cause,
nature and extent of the injuries she sustained as a result of the vehicular mishap.7 On the other
hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and
Milagros Garbo. Defendant Lamayo, however, failed to present any witness.

Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of the
company's bus drivers, conducting for this purpose a series of training programs and examinations.
According to her, new applicants for job openings at MMTC are preliminarily required to submit
certain documents such as National Bureau of Investigation (NBI) clearance, birth or residence
certificate, ID pictures, certificate or diploma of highest educational attainment, professional driver's
license, and work experience certification. Re-entry applicants, aside from the foregoing
requirements, are additionally supposed to submit company clearance for shortages and damages
and revenue performance for the preceding year. Upon satisfactory compliance with said requisites,
applicants are recommended for and subjected to a Preliminary interview, followed by a record
check to find out whether they are included in the list of undesirable employees given by other
companies.

Thereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief
Supervisor is scheduled and followed by a training program which consists of seminars and actual
driving and Psycho-physical tests and X-ray examinations. The seminars, which last for a total of
eighteen (18) days, include familiarization with assigned routes, existing traffic rules and regulations,
Constabulary Highway Patrol Group (CHPG) seminar on defensive driving, preventive maintenance,
proper vehicle handling, interpersonal relationship ,and administrative rules on discipline and on-
the-job training. Upon completion of all the seminars and tests, a final clearance is issued, an
employment contract is executed and the driver is ready to report for duty.8

MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily
operation of buses in the field, to countercheck the dispatcher on duty prior to the operation of the
buses in the morning and to see to it that the bus crew follow written guidelines of the company,
which include seeing to it that its employees are in proper uniform, briefed in traffic rules and
regulations before the start of duty, fit to drive and, in general, follow other rules and regulations of
the Bureau of Land Transportation as well as of the company.9

The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding
vehicles concurrently negligent for non-observance of appropriate traffic rules and regulations and
for failure to take the usual precautions when approaching an intersection. As joint tortfeasors, both
drivers, as well as defendant Lamayo, were held solidarily liable for damages sustained by plaintiff
Custodio. Defendant MMTC, on the bases of the evidence presented was, however, absolved from
liability for the accident on the ground that it was not only careful and diligent in choosing and
screening applicants for job openings but was also strict and diligent in supervising its employees by
seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations
before the start of duty, and that it checked its employees to determine whether or not they were
positive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land
Transportation and of the company.
The trial court accordingly ruled:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing the complaint against
the Metro Manila Transit Corporation and ordering defendants Agudo P. Calebag, Victorino Lamayo
and Godofredo C. Leonardo to pay plaintiffs, jointly and severally, the following:

a) the sum of P10,000.00 by way of medical expenses;

b) the sum of P5,000.00 by way of expenses of litigation;

c) the sum of P15,000.00 by way of moral damages;

d) the sum of P2,672.00 by way of loss of earnings;

e) the sum of P5,000.00 by way of exemplary damages;

f) the sum of P6,000.00 by way of attorney's fees; and

g) costs of suit.

SO ORDERED. 11

Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from liability
reconsidered 12 having been denied for lack of merit, 13 an appeal was filed by her with respondent
appellate court. After consideration of the appropriate pleadings on appeal and finding the appeal
meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarily
liable with the other defendants for the damages awarded by the trial court because of their
concurrent negligence, concluding that while there is no hard and fast rule as to what constitutes
sufficient evidence to prove that an employer has exercised the due diligence required of it in the
selection and supervision of its employees, based on the quantum of evidence adduced the said
appellate court was not disposed to say that MMTC had exercised the diligence required of a good
father of a family in the selection and supervision of its driver, Godofredo Leonardo. 14

The Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of
appellee Custodio and appellant MMTC in a resolution dated February 17, 1982, 15 thus prompting
MMTC to file the instant petition invoking the review powers of this Court over the decision of the
Court of Appeals, raising as issues for resolution whether or not (1) the documentary evidence to
support the positive testimonies of witnesses Garbo and Bautista are still necessary; (2) the
testimonies of witnesses Garbo and Bautista may still be disturbed on appeal; and (3) the evidence
presented during the trial with respect to the proof of due diligence of petitioner MMTC in the
selection and supervision of its employees, particularly driver Leonardo, is sufficient.

Prefatorily, private respondent questions the timeliness of the filing of the petition at bar in view of
the procedural stricture that the timely perfection of an appeal is both a mandatory and
jurisdictional requirement. This is a legitimate concern on the part of private respondent and
presents an opportune occasion to once again clarify this point as there appears to be some
confusion in the application of the rules and interpretative rulings regarding the computation of
reglementary periods at this stage of the proceedings.

The records of this case reveal that the decision of respondent Court of Appeals, dated October 31,
1991, was received by MMTC on November 18, 1991 16 and it seasonably filed a motion for the
reconsideration thereof on November 28, 1991. 17 Said motion for reconsideration was denied by
respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC on
March 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15)
days therefrom or up to March 24, 1992 within which to file its petition, for review on certiorari.
Anticipating, however, that it may not be able to file said petition before the lapse of the
reglementary period therefor, MMTC filed a motion on March 19, 1992 for an extension of thirty
(30) days to file the present petition, with proof of service of copies thereof to respondent court and
the adverse parties. The Court granted said motion, with the extended period to be counted from
the expiration of the reglementary period. 19 Consequently, private respondent had thirty (30) days
from March 24, 1992 within which to file its petition, or up to April 23, 1992, and the eventual filing
of said petition on April 14, 1992 was well within the period granted by the Court.

We digress to reiterate, in view of erroneous submissions that we continue to receive, that in the
case of a petition for review on certiorari from a decision rendered by the Court of Appeals, Section
1, Rule 45 of the Rules of Court, which has long since been clarified in Lacsamana vs. The Hon.
Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the same to be
filed "within fifteen (15) days from notice of judgment or of the denial of the motion for
reconsideration filed in due time, and paying at the same time to the corresponding docket fee." In
other words, in the event a motion for reconsideration is filed and denied, the period of fifteen (15)
days begins to run all over again from notice of the denial resolution. Otherwise put, if a motion for
reconsideration is filed, the reglementary period within which to appeal the decision of the Court of
Appeals to the Supreme Court is reckoned from the date the party who intends to appeal received
the order denying the motion for reconsideration. 21 Furthermore, a motion for extension of time to
file a petition for review may be filed with this Court within said reglementary period, paying at the
same time the corresponding docket fee.

1. The first two issues raised by petitioner shall be correlatively discussed in view of their
interrelation.
In its present petition, MMTC insists that the oral testimonies of its employees were presented as
witnesses in its behalf sufficiently prove, even without the presentation documentary evidence, that
driver Leonardo had complied with all the hiring and clearance requirements and had undergone all
trainings, tests and examinations preparatory to actual employment, and that said positive
testimonies spell out the rigid procedure for screening of job applicants and the supervision of its
employees in the field. It underscored the fact that it had indeed complied with the measure of
diligence in the selection and supervision of its employees as enunciated in Campo, et al. vs.
Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good father of a
family, to carefully examine the applicant for employment as to his qualifications, experience and
record service, and not merely be satisfied with the possession of a professional driver's license.

It goes on to say since the testimonies of these witnesses were allegedly neither discredited nor
impeached by the adverse party, they should be believed and not arbitrarily disregarded or rejected
nor disturbed on appeal. It assiduously argues that inasmuch as there is no law requiring that facts
alleged by petitioner be established by documentary evidence, the probative force and weight of
their testimonies should not be discredited, with the further note that the lower court having passed
upon the relevancy of the oral testimonies and considered the same as unrebutted, its consideration
should no longer be disturbed on appeal. 23

Private respondent, on the other hand, retorts that the factual findings of respondent court are
conclusive upon the High Court which cannot be burdened with the task of analyzing and weighing
the evidence all over again. 24

At this juncture, it suffices to note that factual findings of the trial court may be reversed by the
Court of Appeals, which is vested by law with the power to review both legal and factual issues, if on
the evidence of record, it appears that the trial court may have been mistaken 25 particularly in the
appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general rule
laid down in a plethora of cases is that such findings of fact by the Court of Appeals are conclusive
upon and beyond the power of review of the Supreme Court. 27 However, it is now well-settled that
while the findings of fact of the Court of Appeals are entitled to great respect, and even finality at
times, that rule is not inflexible and is subject to well established exceptions, to wit: (1) when the
conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) where there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same are contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact
are conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition, as well as in the petitioner's main and reply briefs are not disputed by the
respondents and (10) when the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and are contradicted by the evidence on record. 28
When as in this case, the findings of the Court of Appeals and the trial court are contrary to each
other, this court may scrutinize the evidence on record, 29 in order to arrive at a correct finding
based thereon. 30

A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence
on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant
Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with
defendant Lamayo, the owner of the jeepney, we are spared the necessity of determining the
sufficiency of evidence establishing the fact of negligence. 31 The contrariety is in the findings of the
two lower courts, and which is the subject of this present controversy, with regard to the liability of
MMTC as employer of one the erring drivers.

The trial court, in absolving MMTC from liability ruled that —

On the question as to whether defendant MMTC was successful in proving its defense that indeed it
had exercised the due diligence of a good father of a family in the selection and supervision of
defendant Leonardo, this Court finds that based on the evidence presented during the trial,
defendant MMTC was able to prove that it was not only careful and diligent in choosing and
screening applicants for job openings but also strict (and) diligent in supervising its employees by
seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations
before the start of duty, checked employees to determine whether they were positive for alcohol
and followed other rules and regulations and guidelines of the Bureau of Land Transportation as well
as its company. Having successfully proven such defense, defendant MMTC therefore, cannot be
held liable for the accident.

Having reached this conclusion, the Court now, holds that defendant MMTC be totally absolved from
liability and that the complaint against it be dismissed. . . . 32

whereas respondent court was of the opinion that —

It is surprising though that witness Milagros Garbo did not testify nor present any evidence that
defendant-appellee's driver, defendant Godofredo Leonardo has complied with or has undergone all
clearances and trainings she referred to. The clearances, result of seminars and tests which
Godofredo Leonardo submitted and complied with, if any, were not presented in court despite the
fact that they are obviously in the possession and control of defendant-appellee. Instead, it resorted
to generalities. The Court has ruled that due diligence in (the) selection and supervision of
employee(s) are not proved by mere testimonies to the effect that its applicant has complied with all
the company requirements before one is admitted as an employee but without proof thereof. . . .
On the part of Christian Bautista, the transport supervisor of defendant-appellee, he testified that it
is his duty to monitor the operation of buses in the field; to countercheck the dispatchers' duty prior
to the operation of the buses in the morning; to see to it that bus crew follows written guidelines of
the company (t.s.n., April 29, 1988, pp. 4-5), but when asked to present in court the alleged written
guidelines of the company he merely stated that he brought with him a "wrong document" and
defendant-appellee's counsel asked for reservation to present such written guidelines in the next
hearing but the same was (sic) never presented in court. 33

A thorough and scrupulous review of the records of this case reveals that the conclusion of
respondent Court of Appeals is more firmly grounded on jurisprudence and amply supported by the
evidence of record than that of the court below.

It is procedurally required for each party in a case to prove his own affirmative assertion by the
degree of evidence required by law. 34 In civil cases, the degree of evidence required of a party in
order to support his claim is preponderance of evidence, or that evidence adduced by one party
which is more conclusive and credible than that of the other party. It is, therefore, incumbent on the
plaintiff who is claiming a right to prove his case. Corollarily, defendant must likewise prove own
allegation to buttress its claim that it is not liable. 35

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the
burden of presenting at the trial such amount of evidence required by law to obtain a favorable
judgment. 36 It is entirely within each of the parties discretion, consonant with the theory of the
case it or he seeks to advance and subject to such procedural strategy followed thereby, to present
all available evidence at its or his disposal in the manner which may be deemed necessary and
beneficial to prove its or his position, provided only that the same shall measure up to the quantum
of evidence required by law. In making proof in its or his case, it is paramount that the best and most
complete evidence be formally entered. 37

Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to
hold sway, must be corroborated by documentary evidence, or even subject evidence for that
matter, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the
same as sufficiently persuasive proof that there was observance of due diligence in the selection and
supervision of employees. 38 Petitioner's attempt to prove its diligentissimi patris familias in the
selection and supervision of employees through oral evidence must fail as it was unable to buttress
the same with any other evidence, object or documentary, which might obviate the apparent biased
nature of the testimony. 39

Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as
would convincingly and undoubtedly prove its observance of the diligence of a good father of a
family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab
Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almost identical factual
setting, where we held that:
. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must accomplish
before he is employed by the company, a written "time schedule" for each bus, and a record of the
inspections and thorough checks pertaining to each bus before it leaves the car barn; yet no attempt
was ever made to present in evidence any of these documents, despite the fact that they were
obviously in the possession and control of the defendant company.

xxx xxx xxx

Albert also testified that he kept records of the preliminary and final tests given him as well as a
record of the qualifications and experience of each of the drivers of the company. It is rather
strange, therefore, that he failed to produce in court the all important record of Roberto, the driver
involved in this case.

The failure of the defendant company to produce in court any "record" or other documentary proof
tending to establish that it had exercised all the diligence of a good father of a family in the selection
and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court
and the opposing counsel, argues strongly against its pretensions.

We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove
due observance of all the diligence of a good father of a family as would constitute a valid defense to
the legal presumption of negligence on the part of an employer or master whose employee has by
his negligence, caused damage to another. . . . (R)educing the testimony of Albert to its proper
proportions, we do not have enough trustworthy evidence left to go by. We are of the considered
opinion, therefore, that the believable evidence on the degree of care and diligence that has been
exercised in the selection and supervision of Roberto Leon y Salazar, is not legally sufficient to
overcome the presumption of negligence against the defendant company.

Whether or not the diligence of a good father of a family has been observed by petitioner is a matter
of proof which under the circumstances in the case at bar has not been clearly established. It is not
felt by the Court that there is enough evidence on record as would overturn the presumption of
negligence, and for failure to submit all evidence within its control, assuming the putative existence
thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference.

2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to
prove the diligence of a good father of a family, which for an employer doctrinally translates into its
observance of due diligence in the selection and supervision of its employees but which mandate, to
use an oft-quoted phrase, is more often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company's procedure for screening job applicants and
supervising its employees in the field, through the testimonies of Milagros Garbo, as its training
officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly
testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt
that considering the nature of the business of petitioner, it would not let any applicant-drivers to be
(sic) admitted without undergoing the rigid selection and training process with the end (in) view of
protecting the public in general and its passengers in particular; . . . thus, there is no doubt that
applicant had fully complied with the said requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and the training conducted consisting of seminars
and actual driving tests were satisfactory otherwise he should have not been allowed to drive the
subject vehicle. 41

These statements strike us as both presumptuous and in the nature of petitio principii, couched in
generalities and shorn of any supporting evidence to boost their verity. As earlier observed,
respondent court could not but express surprise, and thereby its incredulity, that witness Garbo
neither testified nor presented any evidence that driver Leonardo had complied with or had
undergone all the clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and complied with
were never presented in court despite the fact that, if true, then they were obviously in the
possession and control of petitioner. 42

The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180, of
the Civil Code provisions on quasi-delicts as all the elements thereof are present, to wit: (1) damages
suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for whose act
he must respond, and (3) the connection of cause and effect between fault or negligence of the
defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was originally
sued as employer of driver Leonardo under Article 2180, the pertinent parts of which provides that:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.

The basis of the employer's vicarious liability has been explained under this ratiocination:

The responsibility imposed by this article arises by virtue of a presumption juris tantum of negligence
on the part of the persons made responsible under the article, derived from their failure to exercise
due care and vigilance over the acts of subordinates to prevent them from causing damage.
Negligence is imputed to them by law, unless they prove the contrary. Thus, the last paragraph of
the article says that such responsibility ceases if is proved that the persons who might be held
responsible under it exercised the diligence of a good father of a family (diligentissimi patris familias)
to prevent damage. It is clear, therefore, that it is not representation, nor interest, nor even the
necessity of having somebody else answer for the damages caused by the persons devoid of
personality, but it is the non-performance of certain duties of precaution and prudence imposed
upon the persons who become responsible by civil bond uniting the actor to them, which forms the
foundation of such responsibility. 44

The above rule is, of course, applicable only where there is an employer-employee relationship,
although it is not necessary that the employer be engaged in business or industry. Whether or not
engaged in any business or industry, the employer under Article 2180 is liable for torts committed by
his employees within the scope of their assigned tasks. But, it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the employer liable,
that the employee was acting within the scope of his assigned task when the tort complained of was
committed. It is only then that the defendant, as employer, may find it necessary to interpose the
defense of due diligence in the selection and supervision of employees. 45 The diligence of a good
father of a family required to be observed by employers to prevent damages under Article 2180
refers to due diligence in the selection and supervision of employees in order to protect the public.
46

With the allegation and subsequent proof of negligence against the defendant driver and of an
employer-employee relation between him and his co-defendant MMTC in this instance, the case in
undoubtedly based on a quasi-delict under Article 2180 47 When the employee causes damage due
to his own negligence while performing his own duties, there arises the juris tantum presumption
that the employer is negligent, 48 rebuttable only by proof of observance of the diligence of a good
father of a family. For failure to rebut such legal presumption of negligence in the selection and
supervision of employees, the employer is likewise responsible for damages, 49 the basis of the
liability being the relationship of pater familias or on the employer's own negligence. 50

As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently held that
where the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the
drivers and owners of the said vehicles shall be primarily, directly and solidarily liable for damages
and it is immaterial that one action is based on quasi-delict and the other on culpa contractual, as
the solidarily of the obligation is justified by the very nature thereof. 52

It should be borne in mind that the legal obligation of employers to observe due diligence in the
selection and supervision of employees is not to be considered as an empty play of words or a mere
formalism, as appears to be the fashion of the times, since the non-observance thereof actually
becomes the basis of their vicarious liability under Article 2180.

On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:

. . . . In order tat the owner of a vehicle may be considered as having exercised all diligence of a good
father of a family, he should not have been satisfied with the mere possession of a professional
driver's license; he should have carefully examined the applicant for employment as to his
qualifications, his experience and record of service. These steps appellant failed to observe; he has
therefore, failed to exercise all due diligence required of a good father of a family in the choice or
selection of driver.

Due diligence in the supervision of employees, on the other hand, includes the formulation of
suitable rules and regulations for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations
through his or its employees and the imposition of necessary disciplinary measures upon employees
in case of breach or as may be warranted to ensure the performance of acts indispensable to the
business of and beneficial to their employer. 53 To this, we add that actual implementation and
monitoring of consistent compliance with said rules should be the constant concern of the employer,
acting through dependable supervisors who should regularly report on their supervisory functions.

In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the
presumption of negligence on the part of the employer, the latter has the burden of proving that it
has been diligent not only in the selection of employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome presumption.

We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation
of various company policies on safety without showing that they were being complied with is not
sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent
upon petitioner to show that in recruiting and employing the erring driver the recruitment
procedures and company policies on efficiency and safety were followed." 54 Paying lip-service to
these injunctions or merely going through the motions of compliance therewith will warrant stern
sanctions from the Court.
These obligations, imposed by the law and public policy in the interests and for the safety of the
commuting public, herein petitioner failed to perform. Respondent court was definitely correct in
ruling that ". . . due diligence in the selection and supervision of employee (is) not proved by mere
testimonies to the effect that its applicant has complied with all the company requirements before
one is admitted as an employee but without proof thereof." 55 It is further a distressing commentary
on petitioner that it is a government-owned public utility, maintained by public funds, and organized
for the public welfare.

The Court it is necessary to once again stress the following rationale behind these all-important
statutory and jurisprudential mandates, for it has been observed that despite its pronouncement in
Kapalaran Bus Line vs. Coronado, et al., supra, there has been little improvement in the transport
situation in the country:

In requiring the highest possible degree of diligence from common carriers and creating a
presumption of negligence against them, the law compels them to curb the recklessness of their
drivers. While the immediate beneficiaries of the standard of extraordinary diligence are, of course,
the passengers and owners of the cargo carried by a common carrier, they are not the only persons
that the law seeks to benefit. For if common carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but simultaneously
benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the
safe and convenient use of our roads and highways. The law seeks to stop and prevent the slaughter
and maiming of people (whether passengers or not) and the destruction of property (whether
freight or not) on our highways by buses, the very size and power of which seem often to inflame
the minds of their drivers. . . .

Finally, we believe that respondent court acted in the exercise of sound discretion when it affirmed
the trial court's award, without requiring the payment of interest thereon as an item of damages just
because of delay in the determination thereof, especially since private respondent did not
specifically pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-
delicts, interest as a part of the damages may be awarded in the discretion of the court, and not as a
matter of right. We do not perceive that there have been international dilatory maneuvers or any
special circumstances which would justify that additional award and, consequently, we find no
reason to disturb said ruling.

WHEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.
G.R. No. 160286 July 30, 2004

SPOUSES FRANCISCO M. HERNANDEZ and ANICETA ABEL-HERNANDEZ and JUAN

GONZALES,petitioners,
vs.
SPOUSES LORENZO DOLOR and MARGARITA DOLOR, FRED PANOPIO, JOSEPH
SANDOVAL, RENE CASTILLO, SPOUSES FRANCISCO VALMOCINA and VIRGINIA
VALMOCINA, SPOUSES VICTOR PANOPIO and MARTINA PANOPIO, and HON. COURT OF
APPEALS, respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the
decision1 of the Court of Appeals, dated April 29, 2003, in CA-G.R. CV No. 60357, which affirmed
with modification the amount of damages awarded in the November 24, 1997 decision2 of the
Regional Trial Court of Batangas City, Branch IV.

The undisputed facts are as follows:

At about 3:00 p.m. of December 19, 1986, Lorenzo Menard "Boyet" Dolor, Jr. was driving an
owner-type jeepney with plate no. DEB 804 owned by her mother, Margarita, towards Anilao,
Batangas. As he was traversing the road at Barangay Anilao East, Mabini, Batangas, his vehicle
collided with a passenger jeepney bearing plate no. DEG 648, driven by petitioner Juan
Gonzales and owned by his co-petitioner Francisco Hernandez, which was travelling towards
Batangas City.

Boyet Dolor and his passenger, Oscar Valmocina, died as a result of the collision. Fred Panopio,
Rene Castillo and Joseph Sandoval, who were also on board the owner-type jeep, which was
totally wrecked, suffered physical injuries. The collision also damaged the passenger jeepney of
Francisco Hernandez and caused physical injuries to its passengers, namely, Virgie Cadavida,
Fiscal Artemio Reyes and Francisca Corona.3

Consequently, respondents commenced an action4 for damages against petitioners before the
Regional Trial Court of Batangas City, alleging that driver Juan Gonzales was guilty of
negligence and lack of care and that the Hernandez spouses were guilty of negligence in the
selection and supervision of their employees.5

Petitioners countered that the proximate cause of the death and injuries sustained by the
passengers of both vehicles was the recklessness of Boyet Dolor, the driver of the owner-type
jeepney, who was driving in a zigzagging manner under the influence of alcohol. Petitioners also
alleged that Gonzales was not the driver-employee of the Hernandez spouses as the former only
leased the passenger jeepney on a daily basis. The Hernandez spouses further claimed that
even if an employer-employee relationship is found to exist between them, they cannot be held
liable because as employers they exercised due care in the selection and supervision of their
employee.
During the trial of the case, it was established that the drivers of the two vehicles were duly
licensed to drive and that the road where the collision occurred was asphalted and in fairly good
condition.6 The owner-type jeep was travelling uphill while the passenger jeepney was going
downhill. It was further established that the owner-type jeep was moderately moving and had just
passed a road bend when its passengers, private respondents Joseph Sandoval and Rene
Castillo, saw the passenger jeepney at a distance of three meters away. The passenger jeepney
was traveling fast when it bumped the owner type jeep.7 Moreover, the evidence presented by
respondents before the trial court showed that petitioner Juan Gonzales obtained his
professional driver's license only on September 24, 1986, or three months before the accident.
Prior to this, he was holder of a student driver's permit issued on April 10, 1986.8

On November 24, 1997, the trial court rendered a decision in favor of respondents, the
dispositive portion of which states:

Premises duly considered and the plaintiffs having satisfactorily convincingly and credibly
presented evidence clearly satisfying the requirements of preponderance of evidence to
sustain the complaint, this Court hereby declares judgment in favor of the plaintiffs and
against the defendants. Defendants-spouses Francisco Hernandez and Aniceta Abel
Hernandez and Juan Gonzales are therefore directed to pay jointly and severally, the
following:

1) To spouses Lorenzo Dolor and Margarita Dolor:

a) P50,000.00 – for the death of their son, Lorenzo Menard "Boyet" Dolor, Jr.;

b) P142,000.00 – as actual and necessary funeral expenses;

c) P50,000.00 – reasonable value of the totally wrecked owner-type jeep with

plate no. DEB 804 Phil '85;

d) P20,000.00 – as moral damages;

e) P20,000.00 as reasonable litigation expenses and attorney's fees.

2) To spouses Francisco Valmocina and Virginia Valmocina:

a) P50,000.00 – for the death of their son, Oscar Balmocina (sic);

b) P20,000.00 – as moral damages;

c) P18,400.00 – for funeral expenses;

d) P10,000.00 – for litigation expenses and attorney's fees.

3) To spouses Victor Panopio and Martina Panopio:

a) P10,450.00 – for the cost of the artificial leg and crutches being used by their
son Fred Panopio;

b) P25,000.00 – for hospitalization and medical expenses they incurred for the
treatment of their son, Fred Panopio.

4) To Fred Panopio:
 a) P25,000.00 – for the loss of his right leg;

b) P10,000.00 – as moral damages.

5) To Joseph Sandoval:

a) P4,000.00 for medical treatment.

The defendants are further directed to pay the costs of this proceedings.

SO ORDERED.9

Petitioners appealed10 the decision to the Court of Appeals, which affirmed the same with
modifications as to the amount of damages, actual expenses and attorney's fees awarded to the
private respondents. The decretal portion of the decision of the Court of Appeals reads:

WHEREFORE, the foregoing premises considered, the appealed decision is AFFIRMED.

However, the award for damages, actual expenses and attorney's fees shall be
MODIFIED as follows:

1) To spouses Lorenzo Dolor and Margarita Dolor:

a) P50,000.00 – civil indemnity for their son Lorenzo Menard Dolor, Jr.;

b) P58,703.00 – as actual and necessary funeral expenses;

c) P25,000,00 – as temperate damages;

d) P100,000.00 – as moral damages;

e) P20,000.00 – as reasonable litigation expenses and attorney's fees.

2) To Spouses Francisco Valmocina and Virginia Valmocina:

a) P50,000.00 – civil indemnity for the death of their son, Oscar Valmocina;

b) P100,000.00 – as moral damages;

c) P10,000.00 – as temperate damages;

d) P10,000.00 – as reasonable litigation expenses and attorney's fees.

3) To Spouses Victor Panopio and Martina Panopio:

a) P10,352.59 – as actual hospitalization and medical expenses;

b) P5,000.00 – as temperate damages.

4) To Fred Panopio:

a) P50,000.00 – as moral damages.

5) To Joseph Sandoval:
 a) P3,000.00 as temperate damages.

SO ORDERED.11

Hence the present petition raising the following issues:

1. Whether the Court of Appeals was correct when it pronounced the Hernandez spouses
as solidarily liable with Juan Gonzales, although it is of record that they were not in the
passenger jeepney driven by latter when the accident occurred;

2. Whether the Court of Appeals was correct in awarding temperate damages to private
respondents namely the Spouses Dolor, Spouses Valmocina and Spouses Panopio and
to Joseph Sandoval, although the grant of temperate damages is not provided for in
decision of the court a quo;

3. Whether the Court of Appeals was correct in increasing the award of moral damages
to respondents, Spouses Dolor, Spouses Valmocina and Fred Panopio;

4. Whether the Court of Appeals was correct in affirming the grant of attorney's fees to
Spouses Dolor and to Spouses Valmocina although the lower court did not specify the
fact and the law on which it is based.

Petitioners contend that the absence of the Hernandez spouses inside the passenger jeepney at
the time of the collision militates against holding them solidarily liable with their co-petitioner,
Juan Gonzales, invoking Article 2184 of the Civil Code, which provides:

ARTICLE 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is disputably presumed that a driver was negligent, if he had
been found guilty of reckless driving or violating traffic regulations at least twice within the
next preceding two months.

If the owner was not in the motor vehicle, the provisions of article 2180 are applicable.

The Hernandez spouses argues that since they were not inside the jeepney at the time of the
collision, the provisions of Article 2180 of the Civil Code, which does not provide for solidary
liability between employers and employees, should be applied.

We are not persuaded.

Article 2180 provides:

ARTICLE 2180. The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who
are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
 Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent; but not
when the damage has been caused by the official to whom the task done properly
pertains, in which case what is provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in their
custody.

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage. (Underscoring supplied)

On the other hand, Article 2176 provides –

Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

While the above provisions of law do not expressly provide for solidary liability, the same can be
inferred from the wordings of the first paragraph of Article 2180 which states that the obligation
imposed by article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.

Moreover, Article 2180 should be read with Article 2194 of the same Code, which categorically
states that the responsibility of two or more persons who are liable for quasi-delict is solidary. In
other words, the liability of joint tortfeasors is solidary.12 Verily, under Article 2180 of the Civil
Code, an employer may be held solidarily liable for the negligent act of his employee.13

The solidary liability of employers with their employees for quasi-delicts having been established,
the next question is whether Julian Gonzales is an employee of the Hernandez spouses. An
affirmative answer will put to rest any issue on the solidary liability of the Hernandez spouses for
the acts of Julian Gonzales. The Hernandez spouses maintained that Julian Gonzales is not their
employee since their relationship relative to the use of the jeepney is that of a lessor and a
lessee. They argue that Julian Gonzales pays them a daily rental of P150.00 for the use of the
jeepney.14 In essence, petitioners are practicing the "boundary system" of jeepney operation albeit
disguised as a lease agreement between them for the use of the jeepney.

We hold that an employer-employee relationship exists between the Hernandez spouses and
Julian Gonzales.

Indeed to exempt from liability the owner of a public vehicle who operates it under the "boundary
system" on the ground that he is a mere lessor would be not only to abet flagrant violations of the
Public Service Law, but also to place the riding public at the mercy of reckless and irresponsible
drivers — reckless because the measure of their earnings depends largely upon the number of
trips they make and, hence, the speed at which they drive; and irresponsible because most if not
all of them are in no position to pay the damages they might cause.15

Anent the award of temperate damages to the private respondents, we hold that the appellate
court committed no reversible error in awarding the same to the respondents.
Temperate or moderate damages are damages which are more than nominal but less than
compensatory which may be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with certainty.16 Temperate
damages are awarded for those cases where, from the nature of the case, definite proof of
pecuniary loss cannot be offered, although the court is convinced that there has been such loss.
A judge should be empowered to calculate moderate damages in such cases, rather than the
plaintiff should suffer, without redress, from the defendant's wrongful act.17 The assessment of
temperate damages is left to the sound discretion of the court provided that such an award is
reasonable under the circumstances.18

We have gone through the records of this case and we find that, indeed, respondents suffered
losses which cannot be quantified in monetary terms. These losses came in the form of the
damage sustained by the owner type jeep of the Dolor spouses; the internment and burial of
Oscar Valmocina; the hospitalization of Joseph Sandoval on account of the injuries he sustained
from the collision and the artificial leg and crutches that respondent Fred Panopio had to use
because of the amputation of his right leg. Further, we find that the amount of temperate
damages awarded to the respondents were reasonable under the circumstances.

As to the amount of moral damages which was awarded to respondents, a review of the records
of this case shows that there exists no cogent reason to overturn the action of the appellate court
on this aspect.

Under Article 2206, the "spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish for the death of the deceased." The
reason for the grant of moral damages has been explained, thus:

. . . the award of moral damages is aimed at a restoration, within the limits possible, of
the spiritual status quo ante; and therefore, it must be proportionate to the suffering
inflicted. The intensity of the pain experienced by the relatives of the victim is
proportionate to the intensity of affection for him and bears no relation whatsoever with
the wealth or means of the offender.19

Moral damages are emphatically not intended to enrich a plaintiff at the expense of the
defendant. They are awarded to allow the former to obtain means, diversion or amusements that
will serve to alleviate the moral suffering he has undergone due to the defendant's culpable
action and must, perforce, be proportional to the suffering inflicted.20

Truly, the pain of the sudden loss of one's offspring, especially of a son who was in the prime of
his youth, and who holds so much promise waiting to be fulfilled is indeed a wellspring of intense
pain which no parent should be made to suffer. While it is true that there can be no exact or
uniform rule for measuring the value of a human life and the measure of damages cannot be
arrived at by a precise mathematical calculation,21 we hold that the Court of Appeals' award of
moral damages of P100,000.00 each to the Spouses Dolor and Spouses Valmocina for the death
of their respective sons, Boyet Dolor and Oscar Valmocina, is in full accord with prevailing
jurisprudence.22

With respect to the award of attorney's fees to respondents, no sufficient basis was established
for the grant thereof.

It is well settled that attorney's fees should not be awarded in the absence of stipulation except
under the instances enumerated in Article 2208 of the Civil Code. As we have held in Rizal
Surety and Insurance Company v. Court of Appeals:23

Article 2208 of the Civil Code allows attorney's fees to be awarded by a court when its
claimant is compelled to litigate with third persons or to incur expenses to protect his
interest by reason of an unjustified act or omission of the party from whom it is sought.
 While judicial discretion is here extant, an award thereof demands, nevertheless, a
factual, legal or equitable justification. The matter cannot and should not be left to
speculation and conjecture (Mirasol vs. De la Cruz, 84 SCRA 337; Stronghold Insurance
Company, Inc. vs. Court of Appeals, 173 SCRA 619).

In the case at bench, the records do not show enough basis for sustaining the award for
attorney's fees and to adjudge its payment by petitioner. x x x.

Likewise, this Court held in Stronghold Insurance Company, Inc. vs. Court of Appeals
that:

"In Abrogar v. Intermediate Appellate Court G.R. No. 67970, January 15, 1988,
157 SCRA 57], the Court had occasion to state that '[t]he reason for the award of
attorney's fees must be stated in the text of the court's decision, otherwise, if it is
stated only in the dispositive portion of the decision, the same must be disallowed
on appeal.' x x x."24

WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is
AFFIRMED with the MODIFICATION that the grant of attorney's fees is DELETED for lack of
basis.

Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 74431 November 6, 1989

PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents.

Pablo P. Garcia for petitioners.

Roberto R. Palmares for private respondents.

CRUZ, J.:

Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was
bitten by a dog of the petitioners, but the latter denied this, claiming they had nothing to do with
the dog. The Uys sued the Vestils, who were sustained by the trial court. On appeal, the decision
of the court a quo was reversed in favor of the Uys. The Vestils are now before us. They ask us
to set aside the judgment of the respondent court and to reinstate that of the trial court.

On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the
petitioners in the house of the late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street
in Cebu City. She was rushed to the Cebu General Hospital, where she was treated for "multiple
lacerated wounds on the forehead" 1 and administered an anti-rabies vaccine by Dr. Antonio
Tautjo. She was discharged after nine days but was readmitted one week later due to "vomiting
of saliva." 2 The following day, on August 15, 1975, the child died. The cause of death was
certified as broncho-pneumonia. 3

Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as
the possessors of "Andoy," the dog that bit and eventually killed their daughter. The Vestils
rejected the charge, insisting that the dog belonged to the deceased Vicente Miranda, that it was
a tame animal, and that in any case no one had witnessed it bite Theness. After trial, Judge Jose
R. Ramolete of the Court of First Instance of Cebu sustained the defendants and dismissed the
complaint. 4

The respondent court arrived at a different conclusion when the case was appealed. 5 It found
that the Vestils were in possession of the house and the dog and so should be responsible under
Article 2183 of the Civil Code for the injuries caused by the dog. It also held that the child had
died as a result of the dog bites and not for causes independent thereof as submitted by the
appellees. Accordingly, the Vestils were ordered to pay the Uys damages in the amount of
P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization expenses, and
P2,000.00 as attorney's fees.

In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of
the dog left by her father as his estate has not yet been partitioned and there are other heirs to
the property. Pursuing the logic of the Uys, she claims, even her sister living in Canada would be
held responsible for the acts of the dog simply because she is one of Miranda's heirs. However,
that is hardly the point. What must be determined is the possession of the dog that admittedly
was staying in the house in question, regardless of the ownership of the dog or of the house.
Article 2183 reads as follows:

The possessor of an animal or whoever may make use of the same is

responsible for the damage which it may cause, although it may escape or be
lost. 'This responsibility shall cease only in case the damages should come
from force majeure from the fault of the person who has suffered damage.

Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death and his
heirs thereupon sued the owner of the animal for damages. The complaint was dismissed on the
ground that it was the caretaker's duty to prevent the carabao from causing injury to any one,
including himself.

Purita Vestil's testimony that she was not in possession of Miranda's house is hardly credible.
She said that the occupants of the house left by her father were related to him ("one way or the
other") and maintained themselves out of a common fund or by some kind of arrangement (on
which, however, she did not elaborate ). 7 She mentioned as many as ten of such relatives who
had stayed in the house at one time or another although they did not appear to be close kin.8 She
at least implied that they did not pay any rent, presumably because of their relation with Vicente
Miranda notwithstanding that she herself did not seem to know them very well.

There is contrary evidence that the occupants of the house, were boarders (or more of boarders
than relatives) who paid the petitioners for providing them with meals and accommodations. It
also appears that Purita Vestil had hired a maid, Dolores Jumao-as, who did the cooking and
cleaning in the said house for its occupants. 9 Her mother, Pacita, who was a nursemaid of Purita
herself, categorically declared that the petitioners were maintaining boarders in the house where
Theness was bitten by a dog.10 Another witness, Marcial Lao, testified that he was indeed a
boarder and that the Vestils were maintaining the house for business purposes. 11 And although
Purita denied paying the water bills for the house, the private respondents submitted
documentary evidence of her application for water connection with the Cebu Water District,
which strongly suggested that she was administering the house in question. 12

While it is true that she is not really the owner of the house, which was still part of Vicente
Miranda's estate, there is no doubt that she and her husband were its possessors at the time of
the incident in question. She was the only heir residing in Cebu City and the most logical person
to take care of the property, which was only six kilometers from her own house. 13 Moreover,
there is evidence showing that she and her family regularly went to the house, once or twice
weekly, according to at least one witness, 14 and used it virtually as a second house. Interestingly,
her own daughter was playing in the house with Theness when the little girl was bitten by the
dog. 15 The dog itself remained in the house even after the death of Vicente Miranda in 1973 and
until 1975, when the incident in question occurred. It is also noteworthy that the petitioners
offered to assist the Uys with their hospitalization expenses although Purita said she knew them
only casually. 16

The petitioners also argue that even assuming that they were the possessors of the dog that bit
Theness there was no clear showing that she died as a result thereof. On the contrary, the death
certificate 17 declared that she died of broncho-pneumonia, which had nothing to do with the dog
bites for which she had been previously hospitalized. The Court need not involve itself in an
extended scientific discussion of the causal connection between the dog bites and the certified
cause of death except to note that, first, Theness developed hydrophobia, a symptom of rabies,
as a result of the dog bites, and second, that asphyxia broncho-pneumonia, which ultimately
caused her death, was a complication of rabies. That Theness became afraid of water after she
was bitten by the dog is established by the following testimony of Dr. Tautjo:

COURT: I think there was mention of rabies in the report in the second
admission?
 A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier
in the morning and then the father, because the child was asking for water, the
father tried to give the child water and this child went under the bed, she did not
like to drink the water and there was fright in her eyeballs. For this reason,
because I was in danger there was rabies, I called Dr. Co.

Q: In other words, the child had hydrophobia?

A: Yes, sir. 18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under
oath:

A: Now, as 1 said before, broncho-pneumonia can result from physical, chemical

and bacterial means. ... It can be the result of infection, now, so if you have any
other disease which can lower your resistance you can also get pneumonia.

xxx xxx xxx

Q: Would you say that a person who has rabies may die of complication which is
broncho-pneumonia?

A: Yes.

Q: For the record, I am manifesting that this book shown the witness is know as
CURRENT DIANOSIS & TREATMENT, 1968 by Henry Brainerd, Sheldon
Margen and Milton Chaton. Now, I invite your attention, doctor, to page 751 of
this book under the title "Rabies." There is on this page, "Prognosis" as a result of
rabies and it says: Once the symptoms, have appeared death inevitably occurs
after 2-3 days as a result of cardiac or respiratory failure or generalized paralysis.
After a positive diagnosis of rabies or after a bite by a suspected animal if the
animal cannot be observed or if the bite is on the head, give rabies vaccine (duck
embryo). Do you believe in this statement?

A: Yes.

Q: Would you say therefore that persons who have rabies may die of respiratory
failure which leave in the form of bronco-pneumonia?

A: Broncho-pneumonia can be a complication of rabies. 19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites
and the certified cause of death has beep satisfactorily established. We also reiterate our ruling
in Sison v. Sun Life Assurance Company of Canada, 20 that the death certificate is not conclusive
proof of the cause of death but only of the fact of death. Indeed, the evidence of the child's
hydrophobia is sufficient to convince us that she died because she was bitten by the dog even if
the death certificate stated a different cause of death. The petitioner's contention that they could
not be expected to exercise remote control of the dog is not acceptable. In fact, Article 2183 of
the Civil Code holds the possessor liable even if the animal should "escape or be lost" and so be
removed from his control. And it does not matter either that, as the petitioners also contend, the
dog was tame and was merely provoked by the child into biting her. The law does not speak only
of vicious animals but covers even tame ones as long as they cause injury. As for the alleged
provocation, the petitioners forget that Theness was only three years old at the time she was
attacked and can hardly be faulted for whatever she might have done to the animal.
It is worth observing that the above defenses of the petitioners are an implied rejection of their
original posture that there was no proof that it was the dog in their father's house that bit
Theness.

According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on
the negligence or on the presumed lack of vigilance of the possessor or user of the animal
causing the damage. It is based on natural equity and on the principle of social interest that he
who possesses animals for his utility, pleasure or service must answer for the damage which
such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as
to the medical and hospitalization expenses, which are reduced to P2,026.69, as prayed for in
the complaint. While there is no recompense that can bring back to the private respondents the
child they have lost, their pain should at least be assuaged by the civil damages to which they
are entitled.

WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is

DENIED, with costs against the petitioners. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-13851 July 27, 1960

DEOGRACIAS F. MALONZO, petitioner,

vs.
GREGORIA T. GALANG and FRANCISCO GALANG, respondents.

Felixberto V. Castillo for petitioner.

F.M. Ejercito for respondents.

REYES, J.B.L., J.:

On October 5, 1946, Gregoria T. Galang, wife of Francisco G. Galang, received from Deogracias
T. Malonzo a loan of P5,000.00 under a check which Gregoria cashed at the drawee bank
National City bank of New York, Manila.

Subsequently, on April 17, 1947, the Rehabilitation Finance Corporation loaned to Francisco G.
Galang a check in the sum of P14,968.00 drawn against the Philippine National Bank, Galang
endorsed the check to Deogracias F. Malonzo, who cashed it on April 25, 1947. Out of the
proceeds of the check, P10,000.00 was applied to the payment of the share and participation of
Francisco Galang in a fishing venture with Malonzo. The balance of P4,968.00, together with
P32.00 delivered in cash to Malonzo, paid off, according to Galang, the loan of P5,000.00
extended by the former to Galang's wife on October 5, 1946. However, Malonzo alleged that he
returned said amount of P4,968.00 to Galang, partly in cash (P1,000.00) and partly in check for
P3,968.00 dated May 19, 1947, made payable to Gregoria T. Galang and drawn against the
Philippine Trust Co.

Claiming that the P5,000.00 loan obtained from him by Gregoria T. Galang on October 5, 1946,
had remained unpaid, Malonzo sued the Galang spouses on August 27, 1955 for the payment
thereof, plus interests and attorney's fees (C.C. No. 27303, CFI of Manila).

The trial court refused to believe Malonzo's version that the loan in question had not yet been
paid; held that the same had already been liquidated as claimed by the defendant spouses; and
found the check for P3,968.00 delivered by Malonzo to Gregoria T. Galang on May 19, 1947 had
nothing to do with said loan and was in payment of another loan which she extended to Malonzo
just a few days before the check was issued. The lower court also found that the complaint was
clearly unfounded, dismissed the same, and sentenced Malonzo to pay the Galang spouses
under their counterclaim P500.00 compensatory and moral damages, and P1,000.00 attorney's
fees..

On appeal to the Court of Appeals by Malonzo, the judgment of the court a quo was affirmed in
toto. From this decision, Malonzo appealed to this Court, urging that there was no legal basis for
the award to respondents of compensatory and moral damages, and of attorney's fees.

As to attorney's fees, the award is correct and proper, in view of the finding of the trial court and
of the Court of Appeals that petitioner's action against respondents is clearly unfounded, since
Article 2208, par. (4), of the New Civil Code authorizes the recovery of attorney's fees "in case of
a clearly unfounded civil action or proceeding against the plaintiff". This provision applies equally
in favor of a defendant under a counterclaim for attorney's fees (as in this case), considering that
a counterclaim is a complaint by the defendant against the original plaintiff (Pongos vs. Hidalgo
Enterprises, Inc., et al., 84 Phil., 499; 47 Off. Gaz., [2] 733), wherein the defendant is the plaintiff
and the original plaintiff the defendant.

In regard to other items of compensatory damages supposedly suffered by respondents (i.e., in

addition to attorney's fees and costs that are also included in the concept of actual or
compensatory damages): assuming that they are recoverable in this case under the theory that
petitioner's having filed a clearly unfounded suit against respondents constitutes a tort against
the latter that makes the former "liable for all damages which are the natural and probable
consequences of the act or omission complained of" (Art. 2202, New Code), these damages can
not, however, be presumed, but must be duly proved (Art. 2199). Neither the trial court nor the
Court of Appeals has pointed out any specific facts which afford a basis for measuring whatever
compensatory or actual damages over and above attorney's fees and costs that respondents had
suffered. Upon the other hand, the award of compensatory damages to respondents was merged
by the trial court in a round sum (P500.00) that also included moral damages, showing that this
amount was not what respondents had proved to have suffered, but simply what the court
believed to be reasonably due to them for having been made to defend what the two courts
found to be a clearly unfounded suit. For this reason, we do not think the award of compensatory
damages to respondents should be allowed.

Finally, with respect to moral damages, we are inclined to agree with petitioner that these
damages are not recoverable herein, notwithstanding the finding of the trial court and the Court
of Appeals that his complaint against respondents was clearly unfounded or unreasonable. It will
be observed that unlike compensatory or actual damages which are generally recoverable in tort
cases as long as there is satisfactory proof thereof (Art. 2202), the Code has chosen to
enumerate the cases in which moral damages may be recovered (Art. 2219). A like enumeration
is made in regard (Art. 2208). But the two enumerations differ in the case of a clearly unfounded
suit, which is expressly mentioned in Art. 2208 (par. 4), as justifying for award of attorney's fees,
but is not included in the enumeration of Art. 2219 in respect to moral damages. It is true that Art.
2219 also provides that moral damages may be awarded in "analogous cases" to those
enumerated, but we do not think the Code intended "a clearly unfounded civil action or
proceedings" to be one of these analogous cases wherein moral damages may be recovered, or
it would have expressly mentioned it in Art. 2219, as it did in Art. 2208; or else incorporated in
Art. 2208 by reference in Art. 2219. Besides, Art. 2219 specifically mentions "quasi-delicts
causing physical injuries", as an instance when moral damages may be allowed, thereby
implying that all other quasi-delicts not resulting in physical injuries are excluded (Strebel vs.
Figueras, 96 Phil., 321), excepting, of course, the special torts referred to in Art. 309 (par. 9, Art.
2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on the chapter on human relations (par.
10, Art. 2219).

Furthermore, while no proof of pecuniary loss is necessary in order that moral damages may be
awarded, the amount of indemnity being left to the discretion of the court (Art. 2216), it is,
nevertheless, essential that the claimant satisfactorily prove the existence of the factual basis of
the damage (Art. 2217) and its causal relation to defendant's acts. This is so because moral
damages, though incapable of pecuniary estimation, are in the category of an award designed to
compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer
(Algara vs. Sandejas, 27 Phil., 284). The trial court and the Court of Appeals both seem to be of
the opinion that the mere fact that respondent were sued without any legal foundation entitled
them to an award of moral damages, hence they made no definite finding as to what the
supposed moral damages suffered consist of. Such a conclusion would make of moral damages
a penalty, which they are not, rather than a compensation for actual injury suffered, which they
are intended to be. Moral damages, in other words, are not corrective or exemplary damages.

The foregoing discussion makes it unnecessary to further dwell on the other points raised by the
appeal.

Wherefore, the decision appealed from is modified in the sense that the award of compensatory
and moral damages to respondents is eliminated, but is affirmed in all other respects. No costs.
G.R. No. 135306 January 28, 2003

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G.

BINEGAS, JR.,petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG,
IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM
B.A. JUNIO, respondents.

BELLOSILLO, J.:

I may utterly detest what you write, but I shall fight to the death to make it possible for
you to continue writing it. —

Voltaire

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free
press — liberties that belong as well, if not more, to those who question, who do not conform,
who differ. For the ultimate good which we all strive to achieve for ourselves and our posterity
can better be reached by a free exchange of ideas, where the best test of truth is the power of
the thought to get itself accepted in the competition of the free market — not just the ideas we
desire, but including those thoughts we despise.1

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than
seventy (70) Muslim religious organizations, and individual Muslims ABDULRAHMAN R.T.
LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in their
own behalf and as a class suit in behalf of the Muslim members nationwide against MVRS
PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS,
JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The
article reads:

"ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga
Muslim?

Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin
kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila
itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na
sa araw na tinatawag nilang 'Ramadan'."

The complaint alleged that the libelous statement was insulting and damaging to the Muslims;
that these words alluding to the pig as the God of the Muslims was not only published out of
sheer ignorance but with intent to hurt the feelings, cast insult and disparage the Muslims and
Islam, as a religion in this country, in violation of law, public policy, good morals and human
relations; that on account of these libelous words Bulgar insulted not only the Muslims in the
Philippines but the entire Muslim world, especially every Muslim individual in non-Muslim
countries.

MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended
that the article did not mention respondents as the object of the article and therefore were not
entitled to damages; and, that the article was merely an expression of belief or opinion and was
published without malice nor intention to cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to
establish their cause of action since the persons allegedly defamed by the article were not
specifically identified —

It must be noted that the persons allegedly defamed, the herein plaintiffs, were not
identified with specificity. The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs x x x. It is thus apparent that the alleged
libelous article refers to the larger collectivity of Muslims for which the readers of the libel
could not readily identify the personalities of the persons defamed. Hence, it is difficult for
an individual Muslim member to prove that the defamatory remarks apply to him. The
evidence presented in this case failed to convince this court that, indeed, the defamatory
remarks really applied to the herein plaintiffs.3

On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it
was "clear from the disputed article that the defamation was directed to all adherents of the
Islamic faith. It stated that pigs were sacred and idolized as god by members of the Muslim
religion. This libelous imputation undeniably applied to the plaintiff-appellants who are Muslims
sharing the same religious beliefs." It added that the suit for damages was a "class suit" and that
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim
umbrella organization gave it the requisite personality to sue and protect the interests of all
Muslims.4

Hence, the instant petition for review assailing the findings of the appellate court (a) on the
existence of the elements of libel, (b) the right of respondents to institute the class suit, and, (c)
the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of
suit.

Defamation, which includes libel and slander, means the offense of injuring a person's character,
fame or reputation through false and malicious statements.5 It is that which tends to injure
reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite
derogatory feelings or opinions about the plaintiff.6 It is the publication of anything which is
injurious to the good name or reputation of another or tends to bring him into
disrepute.7 Defamation is an invasion of a relational interest since it involves the opinion which
others in the community may have, or tend to have, of the plaintiff.8

It must be stressed that words which are merely insulting are not actionable as libel or slander
per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether
written or spoken, do not constitute a basis for an action for defamation in the absence of an
allegation for special damages.9 The fact that the language is offensive to the plaintiff does not
make it actionable by itself.10

Declarations made about a large class of people cannot be interpreted to advert to an identified
or identifiable individual. Absent circumstances specifically pointing or alluding to a particular
member of a class, no member of such class has a right of action11 without at all impairing the
equally demanding right of free speech and expression, as well as of the press, under the Bill of
Rights.12 Thus, in Newsweek, Inc. v. Intermediate Appellate Court,13 we dismissed a complaint for
libel against Newsweek, Inc., on the ground that private respondents failed to state a cause of
action since they made no allegation in the complaint that anything contained in the article
complained of specifically referred to any of them. Private respondents, incorporated
associations of sugarcane planters in Negros Occidental claiming to have 8,500 members and
several individual members, filed a class action suit for damages in behalf of all sugarcane
planters in Negros Occidental. The complaint filed in the Court of First Instance of Bacolod City
alleged that Newsweek, Inc., committed libel against them by the publication of the article "Island
of Fear" in its weekly newsmagazine allegedly depicting Negros Province as a place dominated
by wealthy landowners and sugar planters who not only exploited the impoverished and
underpaid sugarcane workers but also brutalized and killed them with impunity. Private
respondents alleged that the article showed a deliberate and malicious use of falsehood, slanted
presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad
light, expose them to public ridicule, discredit and humiliation in the Philippines and abroad, and
make them the objects of hatred, contempt and hostility of their agricultural workers and of the
public in general. We ratiocinated —

x x x where the defamation is alleged to have been directed at a group or class, it is

essential that the statement must be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so that each individual in the class
or group can prove that the defamatory statement specifically pointed to him, so that he
can bring the action separately, if need be x x x x The case at bar is not a class suit. It is
not a case where one or more may sue for the benefit of all, or where the representation
of class interest affected by the judgment or decree is indispensable to make each
member of the class an actual party. We have here a case where each of the plaintiffs
has a separate and distinct reputation in the community. They do not have a common or
general interest in the subject matter of the controversy.

In the present case, there was no fairly identifiable person who was allegedly injured by
the Bulgar article. Since the persons allegedly defamed could not be identifiable, private
respondents have no individual causes of action; hence, they cannot sue for a class allegedly
disparaged. Private respondents must have a cause of action in common with the class to which
they belong to in order for the case to prosper.

An individual Muslim has a reputation that is personal, separate and distinct in the community.
Each Muslim, as part of the larger Muslim community in the Philippines of over five (5) million
people, belongs to a different trade and profession; each has a varying interest and a divergent
political and religious view — some may be conservative, others liberal. A Muslim may find the
article dishonorable, even blasphemous; others may find it as an opportunity to strengthen their
faith and educate the non-believers and the "infidels." There is no injury to the reputation of the
individual Muslims who constitute this community that can give rise to an action for group libel.
Each reputation is personal in character to every person. Together, the Muslims do not have a
single common reputation that will give them a common or general interest in the subject matter
of the controversy.

In Arcand v. The Evening Call Publishing Company,14 the United States Court of Appeals held
that one guiding principle of group libel is that defamation of a large group does not give rise to a
cause of action on the part of an individual unless it can be shown that he is the target of the
defamatory matter.

The rule on libel has been restrictive. In an American case,15 a person had allegedly committed
libel against all persons of the Jewish religion. The Court held that there could be no libel against
an extensive community in common law. In an English case, where libel consisted of allegations
of immorality in a Catholic nunnery, the Court considered that if the libel were on the whole
Roman Catholic Church generally, then the defendant must be absolved.16 With regard to the
largest sectors in society, including religious groups, it may be generally concluded that no
criminal action at the behest of the state, or civil action on behalf of the individual, will lie.

In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were
defamed by the airing of a national television broadcast of a film depicting the public execution of
a Saudi Arabian princess accused of adultery, and alleging that such film was "insulting and
defamatory" to the Islamic religion.17 The United States District Court of the Northern District of
California concluded that the plaintiffs' prayer for $20 Billion in damages arising from "an
international conspiracy to insult, ridicule, discredit and abuse followers of Islam throughout the
world, Arabs and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the
plaintiffs had failed to demonstrate an actionable claim for defamation. The California Court
stressed that the aim of the law on defamation was to protect individuals; a group may be
sufficiently large that a statement concerning it could not defame individual group members.18

Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"19 discusses the
inappropriateness of any action for tortious libel involving large groups, and provides a succinct
illustration:

There are groupings which may be finite enough so that a description of the body is a
description of the members. Here the problem is merely one of evaluation. Is the
description of the member implicit in the description of the body, or is there a possibility
that a description of the body may consist of a variety of persons, those included within
the charge, and those excluded from it?

A general charge that the lawyers in the city are shysters would obviously not be a
charge that all of the lawyers were shysters. A charge that the lawyers in a local point in
a great city, such as Times Square in New York City, were shysters would obviously not
include all of the lawyers who practiced in that district; but a statement that all of the
lawyers who practiced in a particular building in that district were shysters would be a
specific charge, so that any lawyer having an office within that building could sue.

If the group is a very large one, then the alleged libelous statement is considered to have no
application to anyone in particular, since one might as well defame all mankind. Not only does
the group as such have no action; the plaintiff does not establish any personal reference to
himself.20 At present, modern societal groups are both numerous and complex. The same
principle follows with these groups: as the size of these groups increases, the chances for
members of such groups to recover damages on tortious libel become elusive. This principle is
said to embrace two (2) important public policies: first, where the group referred to is large, the
courts presume that no reasonable reader would take the statements as so literally applying to
each individual member; and second, the limitation on liability would satisfactorily safeguard
freedom of speech and expression, as well as of the press, effecting a sound compromise
between the conflicting fundamental interests involved in libel cases.21

In the instant case, the Muslim community is too vast as to readily ascertain who among the
Muslims were particularly defamed. The size of the group renders the reference as indeterminate
and generic as a similar attack on Catholics, Protestants, Buddhists or Mormons would do. The
word "Muslim" is descriptive of those who are believers of Islam, a religion divided into varying
sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon political
and theological distinctions. "Muslim" is a name which describes only a general segment of the
Philippine population, comprising a heterogeneous body whose construction is not so well
defined as to render it impossible for any representative identification.

The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist,
Episcopalian, Presbyterian, Lutheran, and other groups the essence of which may lie in an
inspired charlatan, whose temple may be a corner house in the fringes of the countryside. As
with the Christian religion, so it is with other religions that represent the nation's culturally diverse
people and minister to each one's spiritual needs. The Muslim population may be divided into
smaller groups with varying agenda, from the prayerful conservative to the passionately radical.
These divisions in the Muslim population may still be too large and ambiguous to provide a
reasonable inference to any personality who can bring a case in an action for libel.

The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S.
Puno in the course of the deliberations in this case. We extensively reproduce hereunder his
comprehensive and penetrating discussion on group libel —

Defamation is made up of the twin torts of libel and slander — the one being, in general,
written, while the other in general is oral. In either form, defamation is an invasion of the
interest in reputation and good name. This is a "relational interest" since it involves the
opinion others in the community may have, or tend to have of the plaintiff.

The law of defamation protects the interest in reputation — the interest in acquiring,
retaining and enjoying one's reputation as good as one's character and conduct warrant.
The mere fact that the plaintiff's feelings and sensibilities have been offended is not
enough to create a cause of action for defamation. Defamation requires that something
be communicated to a third person that may affect the opinion others may have of the
plaintiff. The unprivileged communication must be shown of a statement that would tend
to hurt plaintiff's reputation, to impair plaintiff's standing in the community.

Although the gist of an action for defamation is an injury to reputation, the focus of a
defamation action is upon the allegedly defamatory statement itself and its predictable
effect upon third persons. A statement is ordinarily considered defamatory if it "tend[s] to
expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule,
aversion, ostracism, degradation or disgracex x x." The Restatement of Torts defines a
defamatory statement as one that "tends to so harm the reputation of another as to lower
him in the estimation of the community or to deter third persons from associating or
dealing with him."

Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as

part of his prima faciecase that the defendant (1) published a statement that was (2)
defamatory (3) of and concerning the plaintiff.

The rule in libel is that the action must be brought by the person against whom the
defamatory charge has been made. In the American jurisdiction, no action lies by a third
person for damages suffered by reason of defamation of another person, even though
the plaintiff suffers some injury therefrom. For recovery in defamation cases, it is
necessary that the publication be "of and concerning the plaintiff." Even when a
publication may be clearly defamatory as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by him. If no one is identified, there can
be no libel because no one's reputation has been injured x x x x

In fine, in order for one to maintain an action for an alleged defamatory statement, it must
appear that the plaintiff is the person with reference to whom the statement was made.
This principle is of vital importance in cases where a group or class is defamed since,
usually, the larger the collective, the more difficult it is for an individual member to show
that he was the person at whom the defamation was directed.

If the defamatory statements were directed at a small, restricted group of persons, they
applied to any member of the group, and an individual member could maintain an action
for defamation. When the defamatory language was used toward a small group or class,
including every member, it has been held that the defamatory language referred to each
member so that each could maintain an action. This small group or class may be a jury,
persons engaged in certain businesses, professions or employments, a restricted
subdivision of a particular class, a society, a football team, a family, small groups of union
officials, a board of public officers, or engineers of a particular company.

In contrast, if defamatory words are used broadly in respect to a large class or group of
persons, and there is nothing that points, or by proper colloquium or innuendo can be
made to apply, to a particular member of the class or group, no member has a right of
action for libel or slander. Where the defamatory matter had no special, personal
application and was so general that no individual damages could be presumed, and
where the class referred to was so numerous that great vexation and oppression might
grow out of the multiplicity of suits, no private action could be maintained. This rule has
been applied to defamatory publications concerning groups or classes of persons
 engaged in a particular business, profession or employment, directed at associations or
groups of association officials, and to those directed at miscellaneous groups or classes
of persons.

Distinguishing a small group — which if defamed entitles all its members to sue from a
large group — which if defamed entitles no one to sue — is not always so simple. Some
authorities have noted that in cases permitting recovery, the group generally has twenty
five (25) or fewer members. However, there is usually no articulated limit on size. Suits
have been permitted by members of fairly large groups when some distinguishing
characteristic of the individual or group increases the likelihood that the statement could
be interpreted to apply individually. For example, a single player on the 60 to 70 man
Oklahoma University football team was permitted to sue when a writer accused the entire
team of taking amphetamines to "hop up" its performance; the individual was a
fullback, i.e., a significant position on the team and had played in all but two of the team's
games.

A prime consideration, therefore, is the public perception of the size of the group and
whether a statement will be interpreted to refer to every member. The more organized
and cohesive a group, the easier it is to tar all its members with the same brush and the
more likely a court will permit a suit from an individual even if the group includes more
than twenty five (25) members. At some point, however, increasing size may be seen to
dilute the harm to individuals and any resulting injury will fall beneath the threshold for a
viable lawsuit.

x x x x There are many other groupings of men than those that are contained within the
foregoing group classifications. There are all the religions of the world, there are all the
political and ideological beliefs; there are the many colors of the human race. Group
defamation has been a fertile and dangerous weapon of attack on various racial, religious
and political minorities. Some states, therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the United States by making it a crime to
circulate insidious rumors against racial and religious groups. Thus far, any civil remedy
for such broadside defamation has been lacking.

There have been numerous attempts by individual members to seek redress in the courts
for libel on these groups, but very few have succeeded because it felt that the groups are
too large and poorly defined to support a finding that the plaintiff was singled out for
personal attack x x x x (citations omitted).

Our conclusion therefore is that the statements published by petitioners in the instant case did
not specifically identify nor refer to any particular individuals who were purportedly the subject of
the alleged libelous publication. Respondents can scarcely claim to having been singled out for
social censure pointedly resulting in damages.

A contrary view is expressed that what is involved in the present case is an intentional tortious
act causing mental distress and not an action for libel. That opinion invokes Chaplinsky v. New
Hampshire22 where the U.S. Supreme Court held that words heaping extreme profanity, intended
merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional
protection; and Beauharnais v. Illinois23 where it was also ruled that hate speech which
denigrates a group of persons identified by their religion, race or ethnic origin defames that group
and the law may validly prohibit such speech on the same ground as defamation of an individual.

We do not agree to the contrary view articulated in the immediately preceding paragraph.
Primarily, an "emotional distress" tort action is personal in nature, i.e., it is a civil action filed by
an individual24 to assuage the injuries to his emotional tranquility due to personal attacks on his
character. It has no application in the instant case since no particular individual was identified in
the disputed article of Bulgar. Also, the purported damage caused by the article, assuming there
was any, falls under the principle of relational harm — which includes harm to social relationships
in the community in the form of defamation; as distinguished from the principle of reactive
harm — which includes injuries to individual emotional tranquility in the form of an infliction of
emotional distress. In their complaint, respondents clearly asserted an alleged harm to the
standing of Muslims in the community, especially to their activities in propagating their faith in
Metro Manila and in other non-Muslim communities in the country.25 It is thus beyond cavil that
the present case falls within the application of the relational harm principle of tort actions for
defamation, rather than the reactive harm principle on which the concept of emotional
distress properly belongs.

Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of
emotional distress the plaintiff must show that: (a) The conduct of the defendant was intentional
or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There
was a causal connection between the defendant's conduct and the plaintiff's mental distress;
and, (d) The plaintiff's mental distress was extreme and severe.26

"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in civilized society. The defendant's actions must have been so
terrifying as naturally to humiliate, embarrass or frighten the plaintiff.27 Generally, conduct will be
found to be actionable where the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as
his or her reaction.28

"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and
anguish, shock, fright, horror, and chagrin.29 "Severe emotional distress," in some jurisdictions,
refers to any type of severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so, including posttraumatic stress
disorder, neurosis, psychosis, chronic depression, or phobia.30 The plaintiff is required to show,
among other things, that he or she has suffered emotional distress so severe that no reasonable
person could be expected to endure it; severity of the distress is an element of the cause of
action, not simply a matter of damages.31

Any party seeking recovery for mental anguish must prove more than mere worry, anxiety,
vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats,
annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had
been committed, a plaintiff is necessarily expected and required to be hardened to a certain
amount of criticism, rough language, and to occasional acts and words that are definitely
inconsiderate and unkind; the mere fact that the actor knows that the other will regard the
conduct as insulting, or will have his feelings hurt, is not enough.32

Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages on intentional
infliction of emotional distress. A parody appeared in Hustler magazine featuring the American
fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated
state having an incestuous, sexual liaison with his mother in an outhouse. Falwell sued Hustler
and its publisher Larry Flynt for damages. The United States District Court for the Western
District of Virginia ruled that the parody was not libelous, because no reasonable reader would
have understood it as a factual assertion that Falwell engaged in the act described. The jury,
however, awarded $200,000 in damages on a separate count of "intentional infliction of
emotional distress," a cause of action that did not require a false statement of fact to be made.
The United States Supreme Court in a unanimous decision overturned the jury verdict of the
Virginia Court and held that Reverend Falwell may not recover for intentional infliction of
emotional distress. It was argued that the material might be deemed outrageous and may have
been intended to cause severe emotional distress, but these circumstances were not sufficient to
overcome the free speech rights guaranteed under the First Amendment of the United States
Constitution. Simply stated, an intentional tort causing emotional distress must necessarily give
way to the fundamental right to free speech.

It must be observed that although Falwell was regarded by the U.S. High Court as a "public
figure," he was an individual particularly singled out or identified in the parody appearing on
Hustler magazine. Also, the emotional distress allegedly suffered by Reverend Falwell involved a
reactive interest — an emotional response to the parody which supposedly injured his
psychological well-being.

Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither
was the emotional distress allegedly suffered by respondents so severe that no reasonable
person could be expected to endure it. There is no evidence on record that points to that result.

Professor William Prosser, views tort actions on intentional infliction of emotional distress in this
manner34 —

There is virtually unanimous agreement that such ordinary defendants are not liable for
mere insult, indignity, annoyance, or even threats, where the case is lacking in other
circumstances of aggravation. The reasons are not far to seek. Our manners, and with
them our law, have not yet progressed to the point where we are able to afford a remedy
in the form of tort damages for all intended mental disturbance. Liability of course cannot
be extended to every trivial indignity x x x x The plaintiff must necessarily be expected
and required to be hardened to a certain amount of rough language, and to acts that are
definitely inconsiderate and unkind x x x The plaintiff cannot recover merely because of
hurt feelings.

Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:35

There is no occasion for the law to intervene in every case where someone's feelings are
hurt. There must still be freedom to express an unflattering opinion, and some safety
valve must be left through which irascible tempers may blow off relatively harmless
steam.

Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for
emotional harm that would "open up a wide vista of litigation in the field of bad manners," an area
in which a "toughening of the mental hide" was thought to be a more appropriate
remedy.36 Perhaps of greater concern were the questions of causation, proof, and the ability to
accurately assess damages for emotional harm, each of which continues to concern courts
today.37

In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by
subsequent First Amendment doctrines. Back in simpler times in the history of free expression
the Supreme Court appeared to espouse a theory, known as the Two-Class Theory, that treated
certain types of expression as taboo forms of speech, beneath the dignity of the First
Amendment. The most celebrated statement of this view was expressed in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or "fighting"
words — those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order
and morality.
Today, however, the theory is no longer viable; modern First Amendment principles have passed
it by. American courts no longer accept the view that speech may be proscribed merely because
it is "lewd," "profane," "insulting" or otherwise vulgar or offensive.38 Cohen v. California39 is
illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles
courthouse in April 1968, which caused his eventual arrest. Cohen was convicted for violating a
California statute prohibiting any person from "disturb[ing] the peace x x x by offensive conduct."
The U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar,"
but it concluded that his speech was nonetheless protected by the right to free speech. It was
neither considered an "incitement" to illegal action nor "obscenity." It did not constitute insulting
or "fighting" words for it had not been directed at a person who was likely to retaliate or at
someone who could not avoid the message. In other words, no one was present in the Los
Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor
was there any danger of reactive violence against him.

No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket.
The conviction could only be justified by California's desire to exercise the broad power in
preserving the cleanliness of discourse in the public sphere, which the U.S. Supreme Court
refused to grant to the State, holding that no objective distinctions can be made between vulgar
and nonvulgar speech, and that the emotive elements of speech are just as essential in the
exercise of this right as the purely cognitive. As Mr. Justice Harlan so eloquently wrote: "[O]ne
man's vulgarity is another man's lyric x x x words are often chosen as much for their emotive as
their cognitive force."40 With Cohen, the U.S. Supreme Court finally laid the Constitutional
foundation for judicial protection of provocative and potentially offensive speech.

Similarly, libelous speech is no longer outside the First Amendment protection. Only one small
piece of the Two-Class Theory in Chaplinsky survives — U.S. courts continue to treat "obscene"
speech as not within the protection of the First Amendment at all. With respect to the "fighting
words" doctrine, while it remains alive it was modified by the current rigorous clear and present
danger test.41 Thus, in Cohen the U.S. Supreme Court in applying the test held that there was no
showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke
imminent violence; and that protecting the sensibilities of onlookers was not sufficiently
compelling interest to restrain Cohen's speech.

Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate
as Chaplinsky. Indeed, when Beauharnais was decided in 1952, the Two-Class Theory was still
flourishing. While concededly the U.S. High Tribunal did not formally abandon Beauharnais, the
seminal shifts in U.S. constitutional jurisprudence substantially undercut Beauharnais and
seriously undermined what is left of its vitality as a precedent. Among the cases that dealt a
crushing impact on Beauharnais and rendered it almost certainly a dead letter case law
are Brandenburg v. Ohio,42 and, again, Cohen v. California.43 These decisions recognize a much
narrower set of permissible grounds for restricting speech than did Beauharnais.44

In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio
Criminal Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage,
violence, or unlawful methods of terrorism as a means of accomplishing industrial or political
reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of
criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme
Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.45Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long
as such speech is not translated into action.

The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that
"Brandenburgmust be understood as overruling Beauharnais and eliminating the possibility of
treating group libel under the same First Amendment standards as individual libel."46 It may well
be considered as one of the lynchpins of the modern doctrine of free speech, which seeks to give
special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As
correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class
suit is the adequacy of representation. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the interest of the
named party is coextensive with the interest of the other members of the class; (b) the proportion
of those made parties as it so bears to the total membership of the class; and, (c) any other
factor bearing on the ability of the named party to speak for the rest of the class.47

The rules require that courts must make sure that the persons intervening should be sufficiently
numerous to fully protect the interests of all concerned. In the present controversy, Islamic
Da'wah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the
Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously
lack the sufficiency of numbers to represent such a global group; neither have they been able to
demonstrate the identity of their interests with those they seek to represent. Unless it can be
shown that there can be a safe guaranty that those absent will be adequately represented by
those present, a class suit, given its magnitude in this instance, would be unavailing."48

Likewise on the matter of damages, we agree that "moral damages may be recovered only if the
plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its
causal connection with the acts complained of,49 and so it must be, as moral damages although
incapable of pecuniary estimation are designed not to impose a penalty but to compensate for
injury sustained and actual damages suffered.50 Exemplary damages, on the other hand, may
only be awarded if claimant is able to establish his right to moral, temperate, liquidated or
compensatory damages.51 Unfortunately, neither of the requirements to sustain an award for
either of these damages would appear to have been adequately established by respondents."

In a pluralistic society like the Philippines where misinformation about another individual's religion
is as commonplace as self-appointed critics of government, it would be more appropriate to
respect the fair criticism of religious principles, including those which may be outrageously
appalling, immensely erroneous, or those couched as fairly informative comments. The greater
danger in our society is the possibility that it may encourage the frequency of suits among
religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This
would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and
advance their respective religious agenda.

It need not be stressed that this Court has no power to determine which is proper religious
conduct or belief; neither does it have the authority to rule on the merits of one religion over
another, nor declare which belief to uphold or cast asunder, for the validity of religious beliefs or
values are outside the sphere of the judiciary. Such matters are better left for the religious
authorities to address what is rightfully within their doctrine and realm of influence. Courts must
be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of
free speech rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of
the First Amendment — even those ideas that are universally condemned and run counter to
constitutional principles."52 Under the right to free speech, "there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas."53 Denying certiorari and affirming the
appellate court decision would surely create a chilling effect on the constitutional guarantees of
freedom of speech, of expression, and of the press.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated
27 August 1998 is REVERSED and SET ASIDE, and the Decision of the RTC-Br. 4, Manila,
dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED. No pronouncement
as to costs.

SO ORDERED.
Davide, Jr., C .J ., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Corona and
Callejo, Sr., JJ ., concur.
Mendoza, J ., in the result.
Vitug, J ., see concurring opinion.
Panganiban, J ., joins the dissenting opinion of Justice A.T. Carpio.
Carpio, J ., see dissenting opinion.
Austria-Martinez, J ., see dissenting opinion.
Carpio-Morales, J ., joins the dissenting opinion of Justice A.T. Carpio.
Azcuna, J ., joins the dissenting opinion of Justice Austria-Martinez.

Separate Opinions

VITUG, J ., concurring:

The innate right of a person to an unimpaired reputation and good name is no less a
constitutional imperative than that which protects his life, liberty or property. Thus, the law
imposes upon him who attacks another's reputation, by slanderous words or libelous publication,
a liability to make compensation for the injury done and the damages sustained.1

Private respondent Islamic Da'wah Council of the Philippines, Inc., a federation of more than 70
Muslim religious organizations in the country, and the other named respondents all claim, with
understandable indignation, that they have been defamed by an item published by petitioners
in Bulgar, a tabloid, circulated in the Metro Manila area. The article reads:

"ALAM BA NINYO?

"Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga
Muslim?

"Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin
kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila
itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na
sa araw na tinatawag nilang 'Ramadan'."

Private respondents, for themselves and in behalf of all Muslims, filed the complaint before the
trial court against petitioners, alleging that the published article was defamatory and an insult to
respondents. The trial court dismissed the complaint. On appeal, the Court of Appeals reversed
the decision of the lower court and ordered petitioners to pay damages to private respondents.

Aggrieved, petitioners are now before the Court to assail the findings of the Court of Appeals on
the existence of the elements of libel, the right of respondents to institute the class suit, and the
liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.

The present controversy stems from a civil action for damages and not from a criminal complaint.
The Civil Code recognizes the possibility of such a civil action either pursuant to Article 26,
paragraph (4), to the effect that although it may not constitute a criminal offense, "vexing or
humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical
defect, or other personal condition," can give rise to a cause of action for damages, or
consonantly with Article 33 which provides that in case of defamation, a civil complaint for
damages, entirely separate and distinct from the criminal case, may be brought by the injured
party. Both civil actions are based on tort liability under common law and require the plaintiff to
establish that he has suffered personal damage or injury as a direct consequence of the
defendant's wrongful conduct. In fine, it must be shown that the act complained of is vexatious or
defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latter's
dignity and honor.

Defined in simple terms, vexation is an act of annoyance or irritation that causes distress or
agitation.2 Early American cases have refused all remedy for mental injury, such as one caused
by vexation, because of the difficulty of proof or of measurement of damages.3 In comparatively
recent times, however, the infliction of mental distress as a basis for an independent tort action
has been recognized. It is said that "one who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such emotional
distress."4 Nevertheless, it has also been often held that petty insult or indignity lacks, from its
very nature, any convincing assurance that the asserted emotional or mental distress is genuine,
or that if genuine it is serious.5 Accordingly, it is generally declared that there can be no recovery
for insults,6 indignities or threats7 which are considered to amount to nothing more than mere
annoyances or hurt feelings.8 At all events, it would be essential to prove that personal damage
is directly suffered by the plaintiff on account of the wrongful act of the defendant.

A kindred concept, albeit of greater degree of perversity, defamation, broadly defined, is an

attack on the reputation of another, the unprivileged publication of false statements which
naturally and proximately result in injury to another.9 It is that which tends to diminish the esteem,
respect, goodwill or confidence in which a person is held, or to excite adverse, derogatory or
unpleasant feelings or opinions against him.10 Defamation is an invasion of a "relational interest"
since it involves the opinion which others in the community may have, or tend to have, of the
plaintiff.11 The Revised Penal Code, although not the primary governing law in this instance,
provides an instructive definition of libel as being a form of defamation expressed in writing, print,
pictures, or signs,12 to wit: "A libel is a public and malicious imputation of a crime, or vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead."13

While arguably, the article subject of the complaint could be characterized as vexatious or
defamatory and as imparting an erroneous interpretation of a Muslim practice that tends to
ridicule the Islamic faith, it is, however, impersonal on its face, its language not being directed at
any particular person but to a large segment of society. In order that defamatory words can be
actionable in court, it is essential that they are personal to the party maligned, an ascertained or
ascertainable individual.14 It is only then that plaintiff's emotions and/or reputation can be said to
have been injured; thus, the plaintiff, to recover, must show that he or she is the person to whom
the statements are directed.15 Declarations made about a large class of people cannot be
interpreted to advert to an identified or identifiable individual. Absent circumstances specifically
pointing or alluding to a particular member of a class, no member of such class has a right of
action16 without at all impairing the equally demanding right of free speech and expression, as
well as of the press, under the bill of rights.17

If an article, for instance, states that "judges in the Philippines are corrupt," such a general
condemnation cannot reasonably be interpreted to be pointing to each judge or to a certain judge
in the Philippines. Thus, no particular magistrate can claim to have been disgraced or to have
sustained an impaired reputation because of that article. If, on the other hand, the article
proclaims that "judges in Metro Manila are corrupt," such statement of derogatory conduct now
refers to a relatively narrow group that might yet warrant its looking into in an appropriate suit.
And if the article accuses the "Justices of the Supreme Court" of corruption, then there is a
specific derogatory statement about a definite number of no more than fifteen persons.

Jurisprudence would appear to suggest that in cases permitting recovery, the group generally
has 25 or fewer members.18 When statements concern groups with larger composition, the
individual members of that group would be hardput to show that the statements are "of and
concerning them."19 Although no precise limits can be set as to the size of a group or class that
would be sufficiently small, increasing size, at some point, would be seen to dilute the harm to
individuals and any resulting injury would fall beneath the threshold for a viable lawsuit.20 This
principle is said to embrace two important public policies: 1) where the group referred to is large,
the courts presume that no reasonable reader would take the statements as so literally applying
to each individual member; and 2) the limitation on liability would satisfactorily safeguard freedom
of speech and expression, as well as of press, effecting a sound compromise between the
conflicting fundamental interests involved in libel cases.21

Thus, no recovery was allowed where the remarks complained of had been made about
correspondence schools, one school suing;22 or where there was imputation of criminality to a
union, one member suing;23 or where an attack was made on Catholic clergymen, one clergyman
suing.24

In Newsweek, Inc., vs. Intermediate Appellate Court,25 this Court dismissed a class suit for
scurrilous remarks filed by four incorporated associations of sugar planters in Negros Occidental
in behalf of all sugar planters in that province, against Newsweek, Inc., on the ground, among
other things, that the plaintiffs were not sufficiently ascribed to in the article published by the
defendant. And so also it was in an older case,26 where the Court ratiocinated that an article
directed at a class or group of persons in broad language would not be actionable by individuals
composing the class or group unless the statements were sweeping but, even then, it would be
highly probable, said the Court, that no action could lie "where the body is composed of so large
a number of persons that common sense would tell those to whom the publication was made that
there was room for persons connected with the body to pursue an upright and law abiding course
and that it would be unreasonable and absurd to condemn all because of the actions of a part."

In the present case, the subject article relates to the entire Muslim population and not just to the
Islamic Da'wah Council of the Philippines or to any of the individual respondents. There is no
direct reference or allusion to the federation or any of its members, or to any of the individual
complainants. Respondents scarcely can claim having been singled out for social censure
pointedly resulting in damages. Islamic Da'wah Council of the Philippines, Inc., itself, much like
any other artificial being or juridical entity, having existence only in legal contemplation, would be
devoid of any such real feeling or emotion as ordinarily these terms are understood,27 and it
cannot have that kind of reputation that an individual has that could allow it to sue for damages
based on impinged personal reputation.28

WHEREFORE, I vote to GRANT the petition and to SET ASIDE the assailed decision of the
Court of Appeals, REINSTATING thereby the order of dismissal rendered by the Regional Trial
Court.

Dissenting Opinion

CARPIO, J ., dissenting:

I dissent not because the newspaper article in question is libelous, but because it constitutes an
intentional tortious act causing mental distress to those whom private respondent Islamic Da'wah
Council of the Philippines; Inc. represents.

1. Nature of Action: Not a Libel but a Tort Case

Private respondents filed this class suit under Articles 19, 20, 21 and 26 of the Civil Code.
Accordingly, private respondents stated their case as follows:

"Statement of Case
The Civil Code of the Philippines provides:

'Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due and observe honesty and good faith.' [Art. 19]

'Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.' [Art. 20]

'Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.' [Art.
21]

'Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbor and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relation of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious belief, lowly station in
life, place of birth, physical defect, or other personal condition.' [Art. 26]

It is on account of the foregoing provisions of our Civil Code that plaintiffs brought to the
court 'a quo' a civil case for damages on account of a published article at the editorial
section of the defendant newspaper x x x."1

Petitioners acknowledge that private respondents' principal cause of action is based on tortious
conduct when petitioners state in their Petition that "[p]laintiffs rely heavily on Article 26 of the
Civil Code particularly par. 4 thereof." Petitioners, however, assert that the newspaper article in
question has not caused mental anguish, wounded feelings, moral shock, social humiliation or
similar injury to private respondents.2

Clearly, the instant case is not about libel which requires the identification of the plaintiff in the
libelous statement. If this were a libel case under Article 303 of the Civil Code, which authorizes a
separate civil action to recover civil liability arising from a criminal offense, I would agree that the
instant case could not prosper for want of identification of the private respondents as the libeled
persons. But private respondents do not anchor their action on Article 30 of the Civil Code.

Private respondents insist that this case is principally about tortious conduct under Article 26 of
the Civil Code. Unlike the action in Article 30 of the Civil Code which must arise from a "criminal
offense," the action under Article 26 "may not constitute a criminal offense." Article 26, adopted
from American jurisprudence, covers several kinds of intentional torts. Paragraph 4 of Article 26,
which refers to acts humiliating another for his religious beliefs, is embraced in the tort known as
intentional infliction of mental or emotional distress. This case must be decided on the issue of
whether there was such tortious conduct, and not whether there was defamation that satisfied
the elements of the crime of libel.

II. The Tortious Act in Question

The newspaper article in question published by petitioners states as follows:

 "ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga
Muslim? Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang
kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila kakain. Ginagawa
nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-
lalo na sa araw na tinatawag nilang 'Ramadan'."

Private respondents claim that the newspaper article, which asserts that Muslims worship the pig
as their god, was published with intent to humiliate and disparage Muslims and cast insult on
Islam as a religion in this country. The publication is not only grossly false, but is also the
complete opposite of what Muslims hold dear in their religion.

The trial court found that the newspaper article clearly imputes a disgraceful act on Muslims.
However, the trial court ruled that the article was not libelous because the article did not identify
or name the plaintiffs. Declared the trial court:

"There is no doubt that the subject article contains an imputation of a discreditable4 act
when it portrayed the Muslims to be worshipping the pig as their god. Likewise, there is
no doubt that the subject article was published, the newspaper 'Bulgar' containing the
same having been circulated in Metro Manila and in other parts of the country.

The defendants did not dispute these facts x x x However, x x x identity of the person is
not present.

It must be noted that the persons allegedly defamed, the herein plaintiffs were not
identified with specificity. The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs. x x x x."

In their appeal to the Court of Appeals, private respondents assailed the trial court for "deciding
the case as a libel case rather than a case for damages for violation of Articles 19, 20, 21 and 26
of the Civil Code." The Court of Appeals reversed the decision of the trial court not on the basis
of Articles 19, 20, 21 and 26, but on the ground that the newspaper article was libelous. Thus,
the Court of Appeals held:

"It is clear from the disputed article that the defamation was directed at all adherents of
the Islamic faith. It stated that pigs were sacred and idolized as god by members of the
Muslim religion. This libelous imputation undeniably applied to the plaintiffs-appellants
who are Muslims sharing the same religious beliefs."

Thus, both the trial and appellate courts found the newspaper article in question insulting and
humiliating to Muslims, causing wounded feelings and mental anguish to believers of Islam. This
is a finding of fact that the Court is duty bound to respect.5 This finding of fact establishes that
petitioners have inflicted on private respondents an intentional wrongful act — humiliating
persons because of their religious beliefs. Like the trial and appellate courts, we find the
newspaper article in question dripping with extreme profanity, grossly offensive and manifestly
outrageous, and devoid of any social value. The article evidently incites religious hatred,
discrimination and hostility against Muslims.

Private respondents have certainly suffered humiliation and mental distress because of their
religious beliefs. The only question is whether the wrongful act committed by petitioners, which
does not constitute the crime of libel, is a case of damnum absque injuria or an actionable tort
under paragraph 4, Article 26 of the Civil Code.

III. Why Article 26 of the Civil Code was Enacted

The Code Commission explained the inclusion of Article 26 in the Civil Code in this wise:

"The present laws, criminal or civil, do not adequately cope with interferences and
vexations mentioned in Article 26.

The privacy of one's home is an inviolable right. Yet the laws in force do not squarely and
effectively protect this right.

The acts referred to in No. 2 are multifarious, and yet many of them are not within the
purview of the law in force. Alienation of the affection of another's wife or husband,
unless it constituted adultery or concubinage, is not condemned by the law, much as it
may shock society. There are numerous acts, short of criminal unfaithfulness, whereby
the husband or the wife breaks the marital vows, thus causing untold moral suffering to
the other spouse. Why should not these acts be the subject matter of a civil action for
damages? In American law, they are.

Again, there is meddling of so-called friends who poison the mind of one or more
members of the family against the other members. In this manner many a happy family is
broken up or estranged. Why should not the law try to stop this by creating a civil action
for damages?

Of the same nature is that class of acts specified in No. 3: intriguing to cause another to
be alienated from his friends.

No less serious are the acts mentioned in No. 4: vexing, or humiliating another on
account of his religious beliefs, lowly station in life, place of birth, physical defect or other
personal condition. The penal laws against defamation and unjust vexation are glaringly
inadequate.

Religious freedom does not authorize anyone to heap obloquy and disrepute upon
another by reason of the latter's religion.

Not a few of the rich people treat the poor with contempt because of the latter's lowly
station in life. To a certain extent this is inevitable, from the nature of the social make-up,
but there ought to be a limit somewhere, even when the penal laws against defamation
and unjust vexation are not transgressed. In a democracy, such a limit must be
established. The courts will recognize it in each case. Social equality is not sought by the
legal provision under consideration, but due regard for decency and propriety.

Place of birth, of physical defect and other personal conditions are too often the pretext of
humiliation cast upon other persons. Such tampering with human personality, even
though the penal laws are not violated, should be the cause of civil action.

The article under study denounces "similar acts" which could readily be named, for they
occur with unpleasant frequency."6 (Emphasis supplied)

The intent of the Code Commission is quite clear: Article 26 specifically applies to intentional
acts which fall short of being criminal offenses. Article 24 itself expressly refers to tortious
conduct which "may not constitute criminal offenses." The purpose is precisely to fill a gap
or lacuna in the law where a person who suffers injury because of a wrongful act not constituting
a crime is left without any redress. Under Article 26, the person responsible for such act
becomes liable for "damages, prevention and other relief." In short, to preserve peace and
harmony in the family and in the community, Article 26 seeks to eliminate cases of damnum
absque injuria in human relations.
Consequently, the elements that qualify the same acts as criminal offenses do not apply in
determining responsibility for tortious conduct under Article 26. Where the tortious act humiliating
another because of his religious beliefs is published in a newspaper, the elements of the crime of
libel need not be satisfied before the aggrieved person can recover damages under Article 26. In
intentional tort under Article 26, the offensive statements may not even be published or
broadcasted but merely hurled privately at the offended party.

In intentional infliction of mental distress, the gravamen of the tort is not the injury to plaintiff's
reputation, but the harm to plaintiff's mental and emotional state. In libel, the gist of the action is
the injury to plaintiff's reputation. Reputation is the community's opinion of what a person is.7 In
intentional infliction of mental distress, the opinion of the community is immaterial to the
existence of the action although the court can consider it in awarding damages. What is material
is the disturbance on the-mental or emotional state of the plaintiff who is entitled to peace of
mind. The offensive act or statement need not identify specifically the plaintiff as the object of the
humiliation. What is important is that the plaintiff actually suffers mental or emotional distress
because he saw the act or read the statement and it alludes to an identifiable group to which he
clearly belongs.

If one of the petitioners, without specifically naming private respondents, hurled the same
statement in private separately to each of the private respondents, the act would be actionable
under Article 26 because it would cause mental distress to each private respondent. The fact that
the statement was made publicly in fact makes matters worse because the mental or emotional
distress caused on private respondents would even be aggravated by the publicity. This merely
illustrates that the requirements of libel have no application in intentional torts under Article 26
where the impression of the public is immaterial while the impact on the mind or emotion of the
offended party is all-important. That is why in American jurisprudence the tort of intentional
infliction of mental or emotional distress is completely separate and distinct8 from the twin torts of
libel and slander.9

The majority opinion, however, cites the U.S. Supreme Court decision in Hustler Magazine v.
Falwell10 as authority that a person "may not recover for intentional infliction of emotional distress
arising from a publication unless the publication contained a false statement of fact that was
made with actual malice, that is, with a knowledge of falsity or reckless disregard for the truth."
The majority opinion's reliance on Hustler is misplaced. The doctrine in Hustlerapplies only to
public figures, and the U.S. Supreme Court found that "respondent Falwell is a 'public figure' for
purposes of First Amendment law." The U.S. Supreme Court held in Hustler that —

"We conclude that public figures and public officials may not recover for the tort of
intentional infliction of emotional distress by reason of publication such as the one here at
issue without 'a showing in addition that the publication contains a false statement of fact
which was made with 'actual malice,' i.e., with knowledge that the statement was false or
with reckless disregard as to whether or not it was true. x x x." (Emphasis supplied)

Evidently, Hustler allows recovery for intentional infliction of emotional distress if the aggrieved
party is a private person and not a public figure even if there is no showing that the false
statement was made with actual malice. In the instant case, private respondents are not public
figures or public officials but ordinary private individuals represented by private respondent
Islamic Da'wah Council of the Philippines, Inc.

IV. Constitutional Guarantee of 'Full Respect for Human Rights'

The 1987 Constitution provides that "[t]he State values the dignity of every human person and
guarantees full respect for human rights."11 The Constitution created a Commission on Human
Rights with the function, among others, to "[M]onitor the Philippine Government's compliance
with international treaty obligations on human rights."12 The framers of the Constitution made it
clear that the term "human rights" as used in the Constitution referred to the civil and political
rights embodied in the International Covenant on Civil and Political Rights13 to which the
Philippines is a signatory. This is clear from the following exchange in the deliberations of the
Constitutional Commission:

"MR. GARCIA: But it does not mean that we will refer to each and every specific article
therein, but only to those that pertain to the civil and politically related, as we understand
it in this Commission on Human Rights.

MR. GUINGONA: Madam President, I am not clear as to the distinction between social
and civil rights.

MR. GARCIA: There are two international covenants: the International Covenant (on)
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights — the rights of labor
to organize, the right to education, housing, shelter, etcetera.

MR. GUINGONA: So we are just limiting at the moment the sense of the committee to
those the Gentleman has specified.

MR. GARCIA: Yes, to civil and political rights.

MR. GUINGONA: Thank you."14 (Emphasis supplied)

Article 20 (2) of the International Covenant on Civil and Political Rights provides that "[a]ny
advocacy of x x xreligious hatred that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law." The Human Rights Committee created under the Covenant, in its
1983 Nineteenth Session, reported to member states that:

"1. x x x In view of the nature of article 20, States parties are obliged to adopt the
necessary legislative measures prohibiting the actions referred to therein. However, the
reports have shown that in some States such actions are neither prohibited by law nor
are appropriate efforts intended or made to prohibit them. Further, many reports failed to
give sufficient information concerning the relevant national legislation and practice.

2. x x x For article 20 to become fully effective there ought to be a law making it clear that
propaganda and advocacy as described therein are contrary to public policy and
providing for an appropriate sanction in case of violation. x x x ."15

The Covenant, being an international treaty to which the Philippines is a signatory, is part of the
country's municipal law.16 The Covenant carries great weight in the interpretation of the scope
and meaning of the term "human rights" as used in the Constitution. Unquestionably, the framers
of the Constitution intentionally referred to the civil and political rights embraced in the Covenant
in describing the term "human rights." The Constitution even mandates the independent
Commission on Human Rights to monitor the compliance of the Philippine Government, which
includes the judiciary, with its treaty obligations under the Covenant.

Paragraph 4, Article 26 of the Civil Code makes civilly liable any person who humiliates another
because of his religious beliefs. This is just a soft prohibition of advocacy of religious hatred that
incites discrimination, hostility or violence, the act the Covenant seeks to curb and which the
Philippine Government has undertaken to declare unlawful. Other countries that signed the
Covenant have criminalized the acts prohibited under the Covenant. Since our ratification of the
Covenant in 1986, the Philippines has not enacted any special legislation to enforce the
provisions of the Covenant, on the ground that existing laws are adequate to meet the
requirements of the Covenant. There is no other law, except paragraph 4, Article 26 of the Civil
Code, that can provide a sanction against intentional conduct, falling short of a criminal act,
advocating religious hatred that incites hostility between Muslims and Christians in this country.
If we are to comply in good faith with our treaty obligations under the Covenant, as the
Constitution expressly mandates the Philippine Government, we must give redress under Article
26 to the outrageous profanity suffered by private respondents. Our Constitution adopts the
generally accepted principles of international law as part of the law of the land. Pacta sunt
servanda — every treaty in force binds the parties who must comply with the treaty in good
faith17 — is one such principle. Thus, if we refuse to apply Article 26 to the instant case, then we
admit that we have no law to enforce the Covenant. In effect, we admit non-compliance with the
Covenant.

The Supreme Court of Canada, in interpreting Canada's obligation under the Covenant,
explained in R. v. Keegstra:18

"C.E.R.D. (Convention on the Elimination of All Forms of Racial Discrimination) and

I.C.C.P.R. (International Covenant on Civil and Political Rights) demonstrate that the
prohibition of hate promoting expression is considered to be not only compatible with a
signatory nation's guarantee of human rights, but is as well an obligatory aspect of this
guarantee. Decisions under the European Convention for the Protection of Human Rights
and Fundamental Freedoms are also of aid in illustrating the tenor of the international
community's approach to hate propaganda and free expression. This is not to deny that
finding the correct balance between prohibiting hate propaganda and ensuring freedom
of expression has been a source of debate internationally (see, e.g., Nathan Lerner, The
U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980), at pp.
43-54). But despite debate Canada, along with other members of the international
community, has indicated a commitment to prohibiting hate propaganda, and in my
opinion this court must have regard to that commitment in investigating the nature of the
government objective behind s. 319(2) of the Criminal Code. That the international
community has collectively acted to condemn hate propaganda, and to oblige State
Parties to C.E.R.D. and I.C.C.P.R. to prohibit such expression, thus emphasizes the
importance of the objective behind s. 319(2) and the principles of equality and the
inherent dignity of all persons that infuse both international human rights and the
Charter."

As a signatory to the Covenant, the Philippines is, like, Canada, obligated under international law
and the 1987 Constitution to protect the inherent dignity and human rights of all its citizens.

V. Freedom of Expression and Profane Utterances

The blatant profanity contained in the newspaper article in question is not the speech that is
protected by the constitutional guarantee of freedom of expression. Words that heap extreme
profanity, intended merely to incite hostility, hatred or violence, have no social value and do not
enjoy constitutional protection. As explained by the United States Supreme Court in the landmark
case of Chaplinsky v. New Hampshire:19

"Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all times
and under all circumstances. There are certain well-defined and narrowly limited classes
of speech, the prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the libelous,
and the insulting or 'fighting' words — those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion safeguarded
by the Constitution, and its punishment as a criminal act would raise no question under
that instrument." (Emphasis supplied)
Chaplinsky expressly includes profane utterances as belonging to the narrowly limited classes of
speech that are not constitutionally protected. Profane utterances, like asserting that Muslims
worship the pig as their God, have no social value meriting constitutional protection. Black's Law
Dictionary (6th Ed.) defines the words "profane" and "profanity" as follows:

"Profane. Irreverence toward God or holy things. Writing, speaking, or acting, in manifest
or implied contempt of sacred things. Town of Torrington v. Taylor, 59 Wyo. 109, 137
P.2d 621, 624; Duncan v. U.S., C.C.A. Or., 48 F.2d 128, 133. That which has not been
consecrated."

"Profanity. Irreverence towards sacred things; particularly, an irreverent and

blasphemous use of the name of God. Vulgar, irreverent, or coarse language. It is a
federal offense to utter an obscene, indecent, or profane language on radio. 18 U.S.C.A.
§ 1464. See also Obscenity."

The majority opinion states that the doctrine in Chaplinsky "had largely been superseded by
subsequent First Amendment doctrines." The majority opinion then cites the 1971 case of Cohen
v. California 20 as an "illustrative" case that "American courts no longer accept the view that
speech may be proscribed merely because it is 'lewd,' 'profane,' 'insulting' or otherwise vulgar or
offensive." However, Hustler Magazine v. Falwell,21 a 1988 case which the majority opinion also
cites, clearly explains the state of American law on this matter, thus:

"Admittedly, these oft-repeated First Amendment principles, like other principles, are
subject to limitations. We recognized in Pacifica Foundation that speech that is 'vulgar,
offensive, and shocking' is 'not entitled to absolute constitutional protection under all
circumstances.' In Chaplinsky v. New Hampshire, we held that that a State could lawfully
punish an individual for the use of insulting 'fighting words' — those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.' These
limitations are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc. 472 U.S. 749 (1985) that this Court has 'long recognized that not all speech
is of equal First Amendment importance.' x x x ." [other citations omitted] x x x."

Indeed, while democratic societies maintain a deep commitment to the principle that debate on
public issues should be uninhibited, robust and wide open, this free debate has never been
meant to include libelous, obscene or profane utterances against private individuals.22 Clearly,
the newspaper article in question, dripping with extreme profanity, does not enjoy the protection
of the constitutional guarantee of freedom of speech.

VI. Court's Duty and Power to Enforce Constitutional Rights

The 1987 Constitution has conferred on the Court the power to "[p]romulgate rules concerning
the protection and enforcement of constitutional rights." This is an innovation in the 1987
Constitution to insure, in the words of former Chief Justice Roberto R. Concepcion, one of the
framers of the Constitution, that "the protection and enforcement of these constitutional rights is
something that the courts have to consider in the exercise of their judicial power.23 This provision
stresses that constitutional rights, whether found in the Bill of Rights or in other provisions of the
Constitution like in the Declaration of Principles and State Policies, are "not merely declaratory
but are also enforceable."24

One such right, the enforcement and protection of which is expressly guaranteed by the State
under the Constitution, is the right to "full respect for human rights." The trial and appellate courts
have found that private respondents' religious beliefs and practices have been twisted, ridiculed
and vilified by petitioners. This is a clear violation of the human rights of private respondents
under the Constitution and the International Covenant on Civil and Political Rights. It now
becomes the duty of the Court, as the guardian of the fundamental rights of the people, to
exercise its power to protect and enforce the constitutional rights of private respondents.
The Court, pursuant to its rule making power, can require that in actions like the instant case, the
plaintiffs must bring a class suit. This will avoid multiplicity of suits considering the numerous
potential plaintiffs all over the country. A judgment in a class suit, whether favorable or
unfavorable to the class, is binding under the res judicata principle on all members of the class
whether or not they were before the court.25 This rule will address the fear that cases will swamp
the courts all over the country if profanities against religious groups are made actionable under
Article 26.

VII. The Special Circumstance of Muslim Secession in the South

Limitations on freedom of expression have always been rooted on special circumstances

confronting a society in its historical development. In the 1950s, faced with rising racial tension in
American society, the U.S Supreme Court ruled in Beauharnais v. Illinois26 that hate speech
which denigrates a group of persons defined by their religion, race or ethnic origin defames that
group and the law may validly prohibit such speech on the same ground as defamation of an
individual. This was the only time that the U.S. Supreme Court upheld group libel, and since
then, there has been a consistent retreat from this doctrine as blacks and other ethnic groups
became more assimilated into the mainstream of American society. Beauharnais expressly
acknowledged that race riots and massive immigration of unassimilated ethnic groups justified
the legislature in "punishing x x x libels directed at designated collectives and flagrantly
disseminated."

The majority opinion states also that Beauharnais has been superseded by Brandenburg v.
Ohio."27 The majority opinion explains that Brandenburg, a 1969 decision, ruled that "advocacy of
illegal action becomes punishable only if such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action." While Beauharnais has
been apparently weakened by subsequent decisions of the U.S. Supreme Court, it was not
overturned in Brandenburg which did not even cite or mention Beauharnais.
What Brandenburg overturned was Whitney v. California,28 thus —

"Accordingly, we are here confronted with a statute which, by its own words and as
applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment,
assembly with others merely to advocate the described type of action. Such a statute
falls within the condemnation of the First and Fourteenth Amendments. The contrary
teaching of Whitney v. California, supra, cannot be supported, and that decision is
therefore overruled." (Emphasis supplied)

In any event, Brandenburg involved the constitutionality of a criminal statute which sought to
punish the mere advocacy of violence as a means to accomplish industrial or political reform.
This is distinctly different from the instant case, which involves profane utterances that have long
been recognized as devoid of social value and outside the purview of constitutionally protected
speech.29

In 1990, the Canadian Supreme Court, in R. v. Keegstra,30 upheld a law criminalizing hate
speech toward any section of the public distinguished by color, race, religion or ethnic origin. The
Canadian Supreme Court rejected the clear and present danger test of the U.S. Supreme Court,
stating that it did not address the psychological trauma hate propaganda causes and the subtle
and incremental way hate propaganda works. The Canadian Supreme Court found the U.S.
Supreme Court's Beauharnais decision more reflective of Canadian values rather than later U.S.
decisions that weakened Beauharnais. The Canadian Supreme Court handed down Keegstra at
a time when Canada was becoming a multi-racial society following the influx of immigrants of
different color, ethnic origin and religion. The following passages in Keegstra are instructive:

"A myriad of sources — both judicial and academic — offer reviews of First Amendment
jurisprudence as it pertains to hate propaganda. Central to most discussions is the 1952
case of Beauharnais v. Illinois, where the Supreme Court of the United States upheld as
 constitutional a criminal statute forbidding certain types of group defamation. Though
never overruled, Beauharnais appears to have been weakened by later pronouncements
of the Supreme Court (see, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Ashton v.
Kentucky, 384 U.S. 195 (1966); New York Times Co. v. Sullivan, 376 U.S. 254
1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15
(1971)). The trend reflected in many of these pronouncements is to protect offensive,
public invective as long as the speaker has not knowingly lied and there exists no clear
and present danger of violence or insurrection.

xxx xxx xxx

The question that concerns us in this appeal is not, of course, what the law is or should
be in the United States. But it is important to be explicit as to the reasons why or why not
American jurisprudence may be useful in the s. 1 analysis of s. 319(2) of the Criminal
Code. In the United States, a collection of fundamental rights has been constitutionally
protected for over 200 years. The resulting practical and theoretical experience is
immense, and should not be overlooked by Canadian courts. On the other hand, we must
examine American constitutional law with a critical eye, and in this respect La Forest J.
has noted in R. v. Rahey, (1987) 1 S.C.R. 588 at 639:

'While it is natural and even desirable for Canadian courts to refer to American
constitutional jurisprudence in seeking to elucidate the meaning of Charter
guarantees that have counterparts in the United States Constitution, they should
be wary of drawing too ready a parallel between constitutions born to different
countries in different ages and in very different circumstances. . .'

Canada and the United States are not alike in every way, nor have the documents
entrenching human rights in our two countries arisen in the same context. It is only
common sense to recognize that, just as similarities will justify borrowing from the
American experience, differences may require that Canada's constitutional vision depart
from that endorsed in the United States." (Other citations omitted)

xxx xxx xxx

First, it is not entirely clear that Beauharnais must conflict with existing First Amendment
doctrine. Credible arguments have been made that later Supreme Court cases do not
necessarily erode its legitimacy (see, e.g., Kenneth Lasson, "Racial Defamation as Free
Speech: Abusing the First Amendment" (1985), 17 Colum. Human Rights L. Rev. 11).
Indeed, there exists a growing body of academic writing in the United States which
evinces a stronger focus upon the way in which hate propaganda can undermine the very
values which free speech is said to protect. This body of writing is receptive to the idea
that, were the issue addressed from this new perspective, First Amendment doctrine
might be able to accommodate statutes prohibiting hate propaganda (see, e.g., Richard
Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-
Calling" (1982), 17 Harv. C.R.-C.L. Law Rev. 133; Irving Horowitz, "Skokie, the ACLU
and the Endurance of Democratic Theory" (1979), 43 Law & Contemp. Prob. 328;
Lasson, op. cit., at pp. 20–30; Mari Matsuda, "Public Response to Racist Speech:
Considering the Victim's Story," (1989), 87 Mich. L. Rev. 2320, at p. 2348; "Doe v.
University of Michigan: First Amendment — Racist and Sexist Expression on Campus —
Court Strikes Down University Limits on Hate Speech" (1990), 103 Harv. L. Rev. 1397)."

In deciding Keegstra, the Canadian Supreme Court also relied on Canada's treaty obligations
under the United Nations International Covenant on Civil and Political Rights which requires
signatory states to prohibit any "advocacy of x x x religious hatred that constitutes incitement to
discrimination, hostility or violence." During the negotiations of the Covenant, the United States
objected to this provision on free speech grounds. When it finally ratified the Covenant, the
United States made a reservation rejecting this provision insofar as it conflicts with U.S.
constitutional protections.31 The Covenant opened for ratification on December 19, 1966 and
entered into force on March 23, 1976. The Philippines ratified the Covenant in 1986 without any
reservation, just like Canada. The 1987 Constitution of the Philippines even created a
Commission on Human Rights to "[M]onitor the Philippine Government's compliance with
international treaty obligations on human rights." Obviously, Canada and the Philippines are alike
in their obligations under the Covenant, but the United States is differently situated.32

In our country, there has been a long festering and bloody Muslim secessionist movement in the
South, fueled not only by poverty but also by the palpable feeling among Muslims that the
Christian majority is not treating Muslims fairly. Private respondents in the instant case, despite
the outrageous profanity hurled at them by petitioners, chose not to join their secessionist
brethren in the armed struggle but instead decided to petition our courts for legal redress of their
grievance. They could have easily retaliated by flinging their own blasphemous invectives against
the Christian religion. They did not, realizing perhaps that answering profanity with more profanity
would mean answering hatred with more hatred, further dividing rather than unifying the Filipino
nation.

Just last November of 2002, a Christian newspaper in Nigeria where the Miss World contest was
being held opined that the Prophet Mohammed would have approved of the beauty contest. The
newspaper stated: "What would Mohammed think? In all honesty, he would have probably
chosen a wife from one of them." These words provoked bloody rioting in Nigeria among
Muslims who felt insulted by the article. Hundreds died in the religious riots. Yet the offensive
article in the Nigerian newspaper pales in comparison to the utterly profane newspaper article in
the instant case.

Indeed, private respondent Islamic Da'wah Council of the Philippines, a federation of more than
70 Muslim religious organizations in the Philippines, deserves commendation for bringing this
case before our courts for a peaceful and legal resolution of the issue. Private respondents have
placed their trust and faith in our courts, knowing and insisting that they are entitled to a just
remedy under paragraph 4, Article 26 of the Civil Code. It is time to breathe life to this long
dormant provision of the Civil Code, to give even just a token redress to religious minorities who
suffer mental and emotional distress from mindless profanity committed by irresponsible persons
belonging to the religious majority. In the process we will contribute in avoiding a further cleavage
in the fabric of our nation, and demonstrate to our Muslim brothers that their grievances can be
redressed under the rule of law.

The instant case does not even call for a re-examination of the clear and present danger test
which we have adopted in this jurisdiction in determining the constitutionality of legislation that
impinges on civil liberties.33 Even under the clear and present danger test, profane utterances are
not constitutionally protected at least with respect to profanities directed against private
individuals. The special circumstance involving the Muslim secessionist movement in the South
should make us more sensitive to the grievances of our Muslim brothers who continue to have
faith in the rule of law in this country.

Since the peace of mind of private respondents has been violated by the publication of the
profane article in question, Article 26 of the Civil Code mandates that the tortious conduct "shall
produce a cause of action for damages, prevention and other relief." Article 2219 of the same
Code provides that "[M]oral damages may be recovered in x x x actions referred to in Articles 21,
26 x x x ." Private respondents are entitled to moral damages because, as duly established by
the testimonies of prominent Muslims,34 private respondents suffered emotional distress which
was evidently the proximate result of the petitioners' wrongful publication of the article in
question.35

VII. Conclusion
Almost thirty years ago, I had occasion to write about Article 26 in this wise:

"At the time Article 26 was lifted by the Code Commission from American jurisprudence,
many of the rights embodied therein were not yet widely accepted by American courts,
and in fact even now at least one, the right to privacy, is still struggling to gain recognition
in some states. While we have been quick to leapfrog American state decisions in
recognizing such rights, we have, however, been painfully slow in galvanizing the same
in actual cases. To date Article 26 stands almost as a mere decorative provision in our
statutes; but it may be harnessed fruitfully anytime."36

Now is the time to apply this provision of law since the instant case falls clearly within paragraph
4 of Article 26. Applying Article 26 will not undermine freedom of speech since the profane
publication in question belongs to the class of speech that clearly does not enjoy constitutional
protection. Applying Article 26 demonstrates good faith compliance with our treaty obligations
under the International Covenant on Civil and Political Rights. Applying Article 26 implements the
constitutional policy that the "State values the dignity of every human person and guarantees full
respect for human rights." Applying Article 26 constitutes compliance by the Court of its
constitutional duty to protect and enforce constitutional rights. Applying Article 26 will help bind
the wounds that mindless profanities inflict on religious minorities in violation of their human
rights.

Accordingly, I vote to dismiss the petition and affirm the award by the Court of Appeals of
P50,000.00 moral damages, P10,000.00 exemplary damages, and P10,000.00 attorney's fees to
respondent Islamic Da'wah Council of the Philippines, Inc. based on paragraph 4, Article 26 of
the Civil Code.

Dissenting Opinion

AUSTRIA-MARTINEZ, J., dissenting:

I vote to affirm the assailed decision of the Court of Appeals with certain modifications.

For a proper perspective of the issues involved in the present petition, it must be emphasized
that the portion of the subject article which alludes to the Muslims as not eating pork because it is
dirty is not the bone of contention of respondents, because admittedly, the Muslims may eat pork
if driven by necessity, as expressed in the Quran, to wit:

"Allah has forbidden you only what dies of itself and blood and the flesh of swine and that
over which any other (name) than (that of) Allah has been invoked. Then, whoever is
driven by necessity, not desiring, nor exceeding the limit, no sin is upon him."1

The focal point of private respondents' claim for damages is the insult heaped upon them
because of the malicious publication that the Muslims worship the pig as their God which is
absolutely contrary to their basic belief as Muslims that there is only one God they call Allah, and,
that the greatest sin in Islam is to worship things or persons other than Allah.2

Petitioners are liable for damages both under Articles 33 and 26(4) of the Civil Code. The
instances that can be brought under Article 26 may also be subject to an action for defamation
under Article 33. In such a case, the action brought under Article 26 is an alternative remedy, and
the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a
single instance of publicity.3
Article 33 of the Civil Code provides:

"Article 33. In cases of defamation, fraud and physical injuries, a civil action for damages,
entirely separate and distinct from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence." (Emphasis supplied)

Necessarily, Article 353 of the Revised Penal Code comes into play. In the present civil case, it is
necessary that respondents are able to establish by preponderance of evidence the following
elements of defamation:

"1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary,
or any act, omission, condition, status, or circumstance.

"2. That the imputation must be made publicly.

"3. That it must be malicious.

"4. That the imputation must be directed at a natural or juridical person, or one who
is dead.

"5. That the imputation must tend to cause the dishonor, discredit or contempt of the
person defamed."4

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the

possession of a vice or defect, real or imaginary, or any act, omission, condition, status
or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.5

As a general rule, words, written or printed, are libelous per se if they tend to expose a person to
public hatred, contempt, ridicule, aversion, or disgrace, induce an evil opinion of him in the minds
of right thinking persons, and deprive him of their friendly intercourse in society, regardless of
whether they actually produce such results.6Otherwise stated; words published are libelous if
they discredit plaintiff in the minds of any considerable and respectable class in the community,
taking into consideration the emotions, prejudices, and intolerance of mankind.7It has been held
that it is not necessary that the published statements make all or even a majority of those who
read them think any less of the person defamed, but it is enough if a noticeable part of those who
do read the statements are made to hate, despise, scorn or be contemptuous of the person
concerning whom the false statements are published.8

Thus, in order to be libelous per se, the defamatory words must be of such a nature that the court
can presume as a matter of law that they will tend to disgrace and degrade the person or hold
him up to public hatred, contempt, ridicule or cause him to be shunned and avoided; in other
words, they must reflect on his integrity, his character, and his good name and standing in the
community, and tend to expose him to public hatred, contempt, or disgrace.9 The imputation
must be one which tends to affect plaintiff in a class of society whose standard of opinion the
court can recognize.10 It is not sufficient, standing alone, that the language is unpleasant and
annoys or irks plaintiff, and subjects him to jests or banter, so as to affect his feelings.11

In the present case, it is evident that the subject article attributes a discreditable or dishonorable
act or condition to all Muslims in general, a derision of the religious beliefs of the Muslims and of
the objectives of respondent Council to herald the truth about Islam, in particular. The portion of
the assailed article which declares that the Muslims worship the pigs as God is obnoxiously
contrary to the basic belief of the Muslims.
Thus, the article is not only an imputation of irreligious conduct but also a downright
misrepresentation of the religious beliefs of Muslims. It has been held that scandalous matter is
not necessary to make a libel; it is enough if the defendant induces an ill opinion to be held of the
plaintiff, or to make him contemptible or ridiculous; 12 or that the imputation tends to cause
dishonor, discredit or contempt of the offended party.13

Petitioners' stance that the article "Alam Ba Ninyo?" is but an expression of belief or opinion does
not justify said publication. It cannot be considered as a mere information being disseminated.
Petitioners' defense that the article itself was merely a contribution of a reader, or that the writer
was soliciting opinion from the readers, does not hold water, since the article did not in any way
refer to such circumstance. Verily, the article, read as a whole with the other paragraphs, calls
the attention of the readers to a statement of fact, not fiction, and that the writer speaks with
authority on the subject matter. Bulgar in fact prides itself as being the "Pahayagan Ng
Katotohanan".

Significantly, liability for libel does not depend on the intention of the defamer, but on the fact of
the defamation.14 In matters of libel, the question is not what the writer of an alleged libel means,
but what is the meaning of the words he has used.15 The meaning of the writer is quite
immaterial. The question is, not what the writer meant, but what he conveyed to those who heard
or read.16

In other words, it is not the intention of the speaker or writer, or the understanding of the plaintiff
or of any particular hearer or reader, by which the actionable quality of the words is to be
determined. It is the meaning that the words in fact conveyed, rather than the effect which the
language complained of was fairly calculated to produce and would naturally produce on the
minds of persons of reasonable understanding, discretion, and candor, taking into consideration
accompanying explanations and surrounding circumstances which were known to the hearer or
reader. The alleged defamatory statement should be construed not only as to the expression
used but also with respect to the whole scope and apparent object of the writer.17

Want of intention to vilify does not render an objectionable publication any the less a libel and a
publication is not excused by the publisher's ignorance that it contains libelous matter.18 The
state of mind of the person who publishes a libel is immaterial in determining liability. The law
looks at the tendency and consequences of the publication rather than the motive or intention of
the writer or publisher.19 It does not signify what the motive of the person publishing the libel was,
or whether he intended it to have a libelous meaning or not.20 The defendant may not have
intended to injure the plaintiff's reputation at all and he may have published the words by mistake
or inadvertence,21 or in jest, or without intending to refer, or knowing that he was referring, to the
plaintiff, or any existing person, or again he may have been actuated by the best motives in
publishing the words, but such facts will usually afford the defendant no defense, though they
may be urged in mitigation of damages.22

Tested with the foregoing principles of law, there is no doubt that the article in question is
defamatory under Article 33 of the Civil Code. If the imputation is defamatory,23 the Court has
held that malice is presumed and the burden of overcoming the presumption of malice by mere
preponderance of evidence rested on the petitioners.

A careful examination of the records of the case does not reveal any cogent reason that would
set aside the presumption of malice. In fact, there is convincing evidence that the publication of
the assailed article was malicious, as more extensively discussed in the latter portion of herein
opinion.

Furthermore, there is no showing that the instant case falls under any of the exceptions provided
for in Article 354 of the Revised Penal Code, to wit:
 "Art. 354. Requirement of publicity. — Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

"1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and

"2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions."

Consequently, there is no compelling reason to disregard the findings of the Court of Appeals
that no evidence was presented to overcome said presumption of malice.

On the matter of publication, there is no dispute that the same is present, as the subject article
was admittedly published in the newspaper "Bulgar" which was circulated in Metro Manila and in
other parts of the country.

It must be emphasized that not only did both the trial court and the appellate court find that the
subject article was published, they also held that the subject article contains an imputation of a
discreditable act when it portrayed the Muslims to be worshipping the pig as their god.

But the trial court and the appellate court differed as to the presence of the element of the identity
of the persons defamed. While the trial court held that the libelous article does not identify the
personalities of the persons defamed and therefore respondents had no cause of action, the
Court of Appeals ruled that the Muslims were the defamed persons and respondent IDCP has
the requisite personality to sue for damages. The appellate court is right.

Specific identity of the person defamed means that the third person who read or learned about
the libelous article must know that it referred to the plaintiff.24 In order to maintain a libel suit, it is
essential that the victim is identifiable although it is not necessary that he be named; it is likewise
not sufficient that the offended party recognized himself as the person attacked or defamed, but it
must be shown that at least a third person could identify him as the object of the libelous
publication.25

It cannot be refuted that the obvious victims in the article in question are specifically identified —
the Muslims. The principle laid down in Newsweek, Inc. vs. Intermediate Appellate Court,26 that
"where the defamation is alleged to have been directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to apply to every individual in that class or
group, or sufficiently specific so that each individual in that class or group can prove that the
defamatory statement specifically pointed to him, so that he can bring the action separately, if
need be," obviously applies to the present case. Certainly, the defamatory imputation contained
in the subject article is a sweeping statement affecting a common or general interest of all
Muslims, that is, their religious belief in Allah as the one and only God. The publication was
directed against all Muslims without exceptions and it is not necessary to name each one of them
as they could only have one cause of action which is the damage suffered by them caused by
the insult inflicted on their basic religious tenets.

All premises considered, petitioners are indeed liable for damages under Article 33 of the Civil
Code.

Significantly, the respondents brought to the attention of the Court of Appeals the failure of the
trial court to appreciate Article 26(4) of the Civil Code, but the appellate court simply delved
exclusively on the applicability of libel and the existence of its elements.
Ordinarily, the Court may only pass upon errors assigned.27 However, this rule is not without
exceptions. The Court has ruled that an appellate court is accorded a broad discretionary power
to consider errors not assigned, involving, among others, (1) matters not assigned as errors on
appeal but consideration of which is necessary in arriving at a just decision and complete
resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice;
(2) matters not specifically assigned as errors on appeal but raised in the trial court and are
matters of record having some bearing on the issue submitted which the parties failed to raise or
which the lower court ignored; and (3) matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is dependent.28 Evidently, all three exceptions
apply to the present case.

Necessarily, the Court has to dwell on the applicability of Article 26 (4) of the Civil Code in
support of respondents' claim for damages.

Before proceeding any further, a distinction must first be made between a cause of action based
on libel or defamation, whether in a criminal or civil case, and one based on Article 26. In libel,
the gravamen of the claim is reputational harm; whereas, under Article 26, it can be the
embarrassment, emotional harm or mental distress caused upon a person.29 In libel cases, its
four (4) constitutive elements, to wit: (a) defamatory imputation; (b) malice; (c) publication; and
(d) identifiability of the victim,30 must be established, by mere preponderance of evidence in a
civil case which herein petitioners have done in the present case. Said elements, however, are
not essential in a cause of action based on tort under Article 26, wherein one is liable for
personal injury, whether administered intentionally, wantonly or by negligence.31 Personal injury
herein refers not only to reputation but also encompasses character, conduct, manner, and
habits of a person.32

American Tort Law, on the basis of which, Philippine Tort Law was patterned, has recognized
that if the plaintiff is shown to have suffered a wrong, the mere paucity of cases or absence of
any precedent does not constitute sufficient reason for refusing relief if a sound principle of law
can be found which governs, or which by analogy ought to govern.33 The fact that a case is novel
does not operate to defeat recovery, if it can be brought within the general rules of law applicable
to torts.34 Neither is the fact that a tort action does not fit into a nicely defined or established
"cubbyhole" of the law has been said not to warrant, in itself, the denial of relief to one who is
injured.35 Thus, to ignore the application of the proper provision of law in the instant case would
be an abdication of the judiciary's primordial objective, which is, the just resolution of disputes.

Article 26 is an integral part of the Chapter in the Civil Code on human relations, "designed to
indicate certain norms that spring from the fountain of good conscience. These guides for human
conduct should run as golden threads through society, to the end that law may approach its
supreme ideal, which is the sway and dominance of justice."36Article 26, which enhances and
preserves human dignity and personality, provides:

"Article 26. Every person shall respect the dignity, personality, privacy and peace of mind
of his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief.

"(1) Prying into the privacy of another's residence;

"(2) Meddling with or disturbing the private life or family relations of another;

"(3) Intriguing to cause another to be alienated from his friends;

"(4) Vexing or humiliating another on account of his religious beliefs, lowly station
in life, place of birth, physical defect, or other personal condition." (Emphasis
supplied)
The raison d'être for the foregoing statutory provision, as stated by the Code Commission in its
Report, is worth setting forth verbatim:

"The sacredness of human personality is a concomitant of every plan for human

amelioration. The touchstone of every system of laws, of the culture and civilization of
every country, is how far it dignifies man. If in legislation, inadequate regard is observed
for human life and safety; if the laws do not sufficiently forestall human suffering, or do
not try effectively to curb those factors or influences that wound the noblest sentiments; if
the statutes insufficiently protect persons from being unjustly humiliated, in short, if
human personality is not properly exalted — then the laws are indeed defective. Sad to
say, such is to some "degree the present state of legislation in the Philippines. To remedy
this grave fault in the laws is one of the principal aims of the Project of Civil Code.
Instances will now be specified.

"The present laws, criminal and civil, do not adequately cope with the interferences and
vexations mentioned in Article 26."37 (Emphasis supplied)

Thus, Article 26 provides aggrieved individuals with a legal remedy against violations of human
personality, even though such do not amount to violations of penal laws. Social equality is not
sought, but simply due regard for decency and propriety.38

Among the rights covered by Article 26 are: (a) personal dignity, (b) personal security; (c) family
relations, (d) social intercourse, (e) privacy and (f) peace of mind.39 However, it has been held
that the violations mentioned in the Article 26 are not exclusive but are merely examples and do
not preclude other similar acts.40 Thus, disturbing or offensive utterances, such as threats, false
statements, or insulting, humiliating, scandalous, or abusive language,41may give rise to an
action in tort where such language causes mental or emotional disturbance, as in this case, or
bodily injury or illness resulting therefrom.42

Paragraph 4 of Article 26 which makes one liable for vexing or humiliating another on account of
his religious beliefs finds proper application in the case at bar. The Code Commission stressed in
no uncertain terms that religious freedom does not authorize anyone to heap obloquy and
disrepute upon another by reason of the latter's religion.43

In support of respondents' claim for damages, Professor Abdul Rafih Sayedy, Dean of the
Institute of Islamic Affairs of the University of the Philippines, testified in this wise:

"WITNESS:

"A: First, I understood that this tabloid is the voice of katotohanan but regarding this
article it is not 'katotohanan'. To the Muslim it is a blasphemy. It is an abuse and
desecration and belief of the Muslims and the Muslims are commanded by God to
worship no other than Him. So how could the publisher publish that the Muslims are
worshipping pigs, that Muslims in his mind do not eat animals while they are also eating
slaughtered chicken, cow and carabao and other non-prohibited animals. So to the
Muslims this is an insult, not only to the Muslims in Mindanao but to the whole Muslim
community. This is a blasphemy to the Muslims.

"Q As a Muslim, Professor Sayedy, how do you feel about this article?

"A I feel insulted and I feel that the beliefs of the Muslims are over abused by the
publisher and it is a defamation and desecration on the religion of the Islam.

"Q What is the concept of God insofar as the religion of Islam is concerned?
 "A The concept of God is that God is the only God, He was not begotten and He is
to be worshipped and no other to be worshipped aside from him, He has no beginning
and has no end, He is the creator of all creatures and He should be honored by all
creatures."44

Clearly therefrom, the assailed article is vexatious and humiliating to Muslims as they adore only
one God, they call Allah. Muslims are called Muslims because they sincerely believe in the
Quran and the Hadith (the Saying and the Conduct of the Prophet). It cannot be over-stressed
that Muslims do not eat pork because it is forbidden in the Quran for being unclean not because
they hold pigs as sacred and worship them; and that to the Muslims, the greatest sin in Islam is
to worship persons or things other than Allah.45

Petitioner Myla C. Aguja, who testified as Myla Tabora, admitted in open court that she: wrote the
subject article; was a graduate of "Mass Com"; based the said article on her interpretation of
what she recalled she had read in Reader's Digest while she was still in high school; and did not
verify if what she recalled was true46 . Such shocking irresponsible attitude on her part who at
that time was an Assistant Editor of Bulgar is utterly malicious, in the same degree as the failure
of the rest of the petitioners (except Binegas, Jr.)47 to verify the truthfulness of the subject article,
for which they should be held liable for damages.

The freedom of expression and the right of speech and of the press are, to be sure, among the
most zealously protected rights in the Constitution. But the constitutional right of freedom of
expression may not be availed of to broadcast lies or half-truths nor may it be used to insult
others, for such would be contrary to the plain mandate of the Civil Code for each person "to
respect the dignity, personality, privacy and peace of mind of his neighbors and other
persons." The freedom of speech does not require a journalist to guarantee the truth of what he
says or publishes but it does prohibit publishing or circulating statements in reckless disregard
without any bona fide effort to ascertain the truth thereof.48

By causing the assailed article to be published in reckless disregard of the truth thereof,
petitioners publisher MVRS, Editor-in-Chief Mars C. Laconsay, Assistant Editor and writer Myla
C. Aguja (Myla Tabora) exhibited utter irresponsibility and acted contrary to the Code of Ethics
adopted by the journalism profession in the Philippines, for which they deserve condemnation.
The assailed article has falsely portrayed all Muslims as worshippers of pig or swine and thus,
perverted their religious beliefs and demeaned the Muslims as a segment of human society. It
belittled the Muslims by inverting the relative importance of their religious beliefs and practice,
thereby disgracing the ideals and aspirations of the Muslim people. Such amounts to a violation
of their personal dignity and peace of mind, which are the very rights affirmed by Article 26.

Petitioner Binegas should be absolved from liability. It is not refuted that the principal function of
petitioner Binegas, Jr., as Circulation Manager of Bulgar, was to supervise the delivery and the
distribution of the paper, monitor the accounts of the agents and schedule the circulation
personnel. It is likewise unrebutted that petitioner Binegas, Jr. was never consulted on what
articles are to be published; that he had no authority to decide whether or not a certain
publication of Bulgar shall be circulated; and that his only duty was to distribute the issue after its
printing.49 As such, his duty being ministerial in character, petitioner Binegas, Jr., should have
been exonerated from liability.

Now, do plaintiffs-respondents IDCP and its officers have the requisite personality to institute the
suit? The answer is in the affirmative. Respondents IDCP and its officers have the requisite
personality to institute the suit inasmuch as the action is properly a class suit.

The concept of a "true" class suit has been elucidated upon in Re: Request of the Heirs of the
Passengers of Doña Paz,50 thus:
 "What makes a situation a proper case for a class suit is the circumstance that there is
only one right or cause of action pertaining or belonging in common to many persons, not
separately or severally to distinct individuals.

'The 'true' class action, which is the invention of equity, is one which involves the
enforcement of a right which is joint, common, or secondary or derivative. x x (It)
is a suit wherein, but for the class action device, the joinder of all interested
parties would be essential.

'A 'true class action' — as distinguished from the so-called hybrid and the
spurious class action in U.S. Federal Practice — 'involves principles of
compulsory joinder, since x x (were it not) for the numerosity of the class
members all should x x (be) before the court. Included within the true class suit x
x (are) the shareholders' derivative suit and a class action by or against an
unincorporated association x x. A judgment in a true class suit, whether favorable
or unfavorable to the class, is binding under res judicata principles upon all the
members of the class, whether or not they were before the court. It is the
nondivisible nature of the right sued on which determines both the membership of
the class and the res judicata effect of the final determination of the right.'

"The object of the suit is to obtain relief for or against numerous persons as a group or as
an integral entity, and not as separate, distinct individuals whose rights or liabilities are
separate from and independent of those affecting the others." (Emphasis supplied)

In order that a class suit may prosper, Section 12, Rule 3 of the Rules of Court requires the
concurrence of three (3) essential elements, namely: (1) that the subject matter of the
controversy is one of common or general interest to many persons; (2) that the parties are so
numerous that it is impracticable to bring them all before the court; and (3) that the action be
maintained by parties who will fairly and adequately represent the class.

Under the first requisite, the person who sues must have an interest in the controversy, common
with those for whom he sues, and there must be that unity of interest between him and all such
other persons which would entitle them to maintain the action if suit was brought by them
jointly.51

As to what constitutes common interest in the subject matter of the controversy has been
explained in Sulo ng Bayan, Inc. vs. Araneta, Inc.,52 thus:

"The interest that will allow parties to join in a bill of complaint, or that will enable the
court to dispense with the presence of all the parties, when numerous, except a
determinate number, is not only an interest in the question, but one in common in the
subject matter of the suit, x x x a community of interest growing out of the nature and
condition of the right in dispute; for, although there may not be any privity between the
numerous parties, there is a common title out of which the question arises, and which lies
at the foundation of the proceedings x x x [here] the only matter in common among the
plaintiffs, or between them and the defendants, is an interest in the question involved,
which alone cannot lay a foundation for the joinder of parties. There is scarcely a suit at
law, or in equity, which settles a principle or applies a principle to a given state of facts or
in which a general statute is interpreted, that does not involve a question in which other
parties are interested x x x."

It has further been held that in order to maintain a class action there must be an ascertainable
class as well as a community of interest among the members of that class in questions of law
and fact involved.53 The class must be cognizable and manageable, and must be defined at the
outset of the action. There must be a cognizable class beyond the general strains which can be
conceived to create a class of any superficially resembling parties, but it is not necessary that the
exact number comprising the class be specified or that the members be identified.54

The first element is present in this case. The class spoken of in the assailed article that
segregates them from the other members of the general populace is the Muslim people, and their
common interest, undoubtedly, is their religious belief in adoring Allah as the one and only God
and that the greatest sin is to worship persons or things other than Allah. The article is an
outrageous misrepresentation, inflicting stark insult on the religious beliefs of the Muslims.

Concerning the second element, i.e., numerosity of parties — one must bear in mind that the
purpose. of the rule permitting class actions is to furnish a mode of obtaining a complete
determination of the rights of the parties in such cases, when the number is so great as to
preclude involvement by actual service. In this class of cases, one is allowed to sue for all as a
matter of convenience in the administration of justice. A class action is particularly proper in an
action wherein the persons are so multitudinous as vexatiously to prolong and probably
altogether prevent a full hearing.55

Judicial notice may be taken of the fact that Muslims in this country comprise a lot of the
population, thus, it is highly impractical to make them all parties or bring them all before the court.
It is beyond contradiction that the Muslims affected by the assailed article are multitudinous, and
therefore, the second element is present in the instant case.

With regards to the third element, that the action be maintained by one who fairly and adequately
represents the class, it is essential that the relief sought must be beneficial to the class members,
the party must represent the entire class asserted, and be a member of the class he claims to
represent, in addition to having an interest in the controversy common with those for whom he
sues.56 For adequate representation, it is sufficient that there are persons before the court who
have the same interest as the absent persons and are equally certain to bring forward the entire
merits of the question and thus give such interest effective protection.57 It has also been held that
whether the class members are adequately represented by the named plaintiffs depends on the
quality of representation rather than on the number of representative parties as compared with
the total membership of the class.58 Thus, even one member of a large class can provide the kind
of representation for all that is contemplated by the class suit.59

Respondent IDCP, as a religious organization, being a federation or umbrella organization of

more than seventy (70) Muslim religious organizations in the Philippines, and its officers who are
individual respondents as well, carry the requisite personality to file a case for damages in behalf
of all Muslims. Unequivocally, they properly represent the Muslims who are similarly situated and
affected by the assailed article.

Respondent officers of IDCP namely, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul
Rashid De Guzman, and Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih
Sayedy, not only testified on how the assailed article emotionally, as well as psychologically,
affected each of them, but also as to how the said article received the condemnation and
contempt of other Muslims, further evidenced by the letter dated September 21, 1992 from thirty-
one (31) students of the Islamic University Madinah Al-Mukarramah, K.S.A.,60 and the seething
letter of one Abdil T. Arafat of South Cotabato province, dated September 29, 1992.61

Moreover, an officer may sue in his own behalf if the defamation affects him as well as the
corporation62 , or where the defamation against the officer has a direct relation to the
corporation's trade or business and it causes injury63 .

Thus, without a shred of doubt, respondents IDCP and the individual respondents, and all
Muslims they represent, have interest so identical that the motive and inducement to protect and
preserve may be assumed to be the same in each.64 By instituting the suit, the respondents
necessarily represent all Muslims.65
Under Article 2217 of the Civil Code, moral damages which include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury, although incapable of pecuniary computation, may be recovered
for acts and actions based on Article 26.66

Individual Muslim plaintiffs-respondents, Abdulrahman R.T. Linzag, Ibrahim F. P. Arcilla, Abdul

Rashid De Guzman, and Ibrahim B. A. Junio, as well as their witness, Professor Abdul Rafih
Sayedy, as proper representatives of the class action testified on the despair, mental anguish,
social humiliation and inferior feeling experienced by the Muslims as a result of the vexatious
article.67 Thus, the award of moral damages is justified.

The award of exemplary damages and attorney's fees is likewise warranted and the amount is in
accordance with Articles 222968 and 220869 of the Civil Code.

However, damages awarded to individual respondents should be deleted inasmuch as the

instant case is considered as a class suit and they merely acted as officers and members of the
principal plaintiff-respondent IDCP.

One last point. There should be no room for apprehension on future litigations relating to the
assailed article in view of the fact that the instant suit is a class suit. In a class suit, each member
of the class for whose benefit the action is brought is a party plaintiff; the persons represented
are quasi parties or parties by representation. A suit brought in behalf of others in a class gives
the court jurisdiction of the whole subject matter, and of all the parties, such that the judgment
will be binding on all persons belonging to the class represented.70

In other words, a judgment in a class action concludes upon all members of the class, whether
formally joined as parties or not. 71 The class action has preclusive effect against one who was
not named representative of the class, as long as he was a member of the class which was a
party to the judgment.72

Thus, in the case at bar, the Muslims, who are parties represented by respondent IDCP and its
officers, are thereby precluded from instituting separate or individual suits for damages against
MVRS Publications, Inc., et al., as they are bound by the judgment in this class action, which
amounts to res judicata.

In the light of all the foregoing, I am constrained to dissent from the majority opinion.