DISSENTING OPINION

CARPIO, J.:

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 Dawah 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 anothers 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 discretable4 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.

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 ones 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 anothers 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 latters religion.

Not a few of the rich people treat the poor with contempt because of the latters 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 plaintiffs reputation, but the harm to plaintiffs mental and emotional state. In libel, the gist of the action is the injury to plaintiffs reputation. Reputation is the communitys 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 opinions reliance on Hustler is misplaced. The doctrine in Hustler applies 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 Dawah 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 Governments 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 x religious 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 countrys 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 Canadas 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 nations 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 communitys 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. Blacks 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. California20 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. Courts 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 Courts 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

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 Canadas constitutional vision depart from that endorsed in the United States. (Other citations omitted)

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 Column. 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 Victims 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 Canadas 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 Governments 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 Dawah 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

VIII. 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 attorneys fees to respondent Islamic Dawah Council of the Philippines, Inc. based on paragraph 4, Article 26 of the Civil Code.



1 Brief for Plaintiffs-Appellants, pp. 4-5.

2 Pages 16 -17, Petition.

3 Article 30 of the Civil Code provides as follows: When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

4 Should be discreditable.

5 International Corporate Bank v. Gueco, 351 SCRA 516 (2001); French Oil Mill Machinery Co., Inc. v. Court of Appeals, 295 SCRA 462 (1998); Lagandaon v. Court of Appeals, 290 SCRA 330 (1998); Sandoval v. Court of Appeals, 260 SCRA 283 (1996).

6 Report of the Code Commission, pp. 32-33.

7 In People v. Silvela, 103 Phil. 773, the Court, citing American jurisprudence, stated: If the defamatory matter is not seen or heard by anyone except the defamer and the defamed, damages to character reputation can not result since a mans reputation is the estimate in which others hold him, and not what he himself thinks. Blacks Law Dictionary (6th Ed.) defines reputation thus: Estimation in which one is held; the character imputed to a person by those acquainted with him. That by which we are known and is the total sum of how we are seen by others. x x x General opinion, good or bad, held of a person by those of the community in which he resides.

8 M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W. 2d 681 (1980); Section 46, Restatement (Second) of Torts.

9 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964).

10 485 U.S. 46 (1988).

11 Section 11, 1987 Constitution.

12 Section 18 (7), Article XIII, 1987 Constitution.

13 Entered into force on March 23, 1976.

14 Simon, Jr. v. Commission on Human Rights, 229 SCRA 117 (1994).

15 CCPR General Comment 11, 19th Session (1983), Office of the High Commissioner for Human Rights.

16 La Chemise Lacoste, S. A. v. Fernandez, 129 SCRA 373 (1984); Ram Singh v. Insular Collector of Customs, 38 Phil. 862 (1918).

17 Vienna Convention on the Law of Treaties, Art. 26.

18 3 S.C.R. 697 (1990).

19 315 U.S. 568, 62 S. Ct. 766 (1942).

20 403 U.S. 15 (1971).

21 Supra, note 10.

22 New York Times v. Sullivan, 376 U.S. 254 (1964). Prior to New York Times, the prevailing view in the U.S. was that lewd, obscene and profane speech was not constitutionally protected, whether directed at private individuals or public officials. New York Times imposed, with respect to public officials, a qualified constitutional privilege. The U.S. Supreme Court stated that the constitutional protections for speech and press require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is, with knowledge that it was false or made with reckless disregard of whether it was false or not.

23 Record of the Constitutional Commission, Vol. 1, pp. 491-492.

24 Ibid.

25 Re: Request of the Heirs of the Passengers of Doa Paz, 159 SCRA 623 (1988).

26 343 U.S. 250 (1952).

27 395 U.S. 444 (1969).

28 274 U.S. 357.

29 Chaplinsky v. New Hampshire, supra, note 18; Hustler Magazine v. Falwell, supra, note 10.

30 Supra, note 18.

31 Hate Speech in the Constitutional Law of the United States, William B. Fisch, American Journal of Comparative Law, Fall 2002.

32 American constitutional law generally protects hate speech of various kinds, including religious and racial. In this area, the law of the United States is precisely contrary to international human rights norms. Artilce 20(2) of the International Covenant on Civil and Political Rights states, Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. David M. Smolin, Exporting the First Amendment?: Evangelism, Proselytism, and the International Religious Freedom Act, 31 Cumberland Law Review, 2000-2001.

34 Decision of Judge Vetino E. Reyes dated June 31, 1995, pp. 4-6.

35 Article 2217, Civil Code.

36 Antonio T. Carpio, Intentional Torts in Philippine Law, Philippine Law Journal, Vol. 47, No. 5 (December 1972).