SUPREME COURT DECISIONS

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DISSENTING OPINION

AUSTRIA-MARTINEZ, J.:

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:

Allahhas forbidden you only what dies of itself and blood and the flesh of swine and that over which any other (name) than (that of) Allahhas 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, fraudand 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 shallproceed 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 bemalicious.

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

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.7 It 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 publishers 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 plaintiffs 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 defamatory23, 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 discretable 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, if 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 judiciarys 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.36 Article 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 anothers 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 dtre 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,41 may 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 latters 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 Allah45.

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 Readers 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 Doa 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 xx (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., 52thus:

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, xxx 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 xxx [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. xxx

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, nameIy, 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 corporations 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 lbrahim 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 attorneys 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 MRVS 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.

---

Endnotes:

1 Quran, Chapter 16:115. See also Chapter 7:145.

2 Michael J. Diamond and Peter G. Gowing, Islam and Muslim: Some Basic Information. 1981 New Day Publishing, Quezon City, pp. 29-30. (Michael J. Diamond is Vicar General of the Prelature of Marawi, Marawi City, Lanao del Sur; Peter G. Gowing was a Doctor of Theology in Ecumenics and Church History).

3 R.A. Epstein, C. O. Gregory, and H. Kalven, Jr., Cases and Materials on Torts, 1984 Ed., p. 1271 citing Restatement (Second) of the Law of Torts, Section 652E.

4 Luis B. Reyes, The Revised Penal Code, Book II, Fourteenth Edition, Revised 1998, p. 921.

5 Vasquez v. Court of Appeals, 314 SCRA 460, 471 (1999).

6 53 C.J.S., Libel and Slander, 13.

7 Ibid.

8 Ibid.

9 53 C.J.S., Libel and Slander, 13. See also 50 Am. Jur. 2d, Libel and Slander, 82.

10 Ibid.

11 Ibid.

12 25 Words and Phrases, Libel, p. 119 citing Cooper v. Greeley, N.Y., 1 Denio, 347, 359.

13 Article 353, Revised Penal Code.

14 R. L. McEwen and P. S. C. Lewis, Gatley on Libel and Slander, 89(1967), citing Russell L. J. in Cassidy vs. Daily Mirror, 2 K.B. 354 (1929); Newstead v. London Express, 1 K.B. 377, 396 (C.A.) (1940). See also 50 Am. Jur., Libel and Slander, 25.

15 People v. Encarnacion (CA), 48 Official Gazette 1817, 1820 (1952), citing Lord Bramwell in Hentys Case, 52 L.J.Q.B. 232 (1882).

16 Ibid.

17 People v. Encarnacion (CA), supra citing 53 C.J.S. 48-50.

18 M.H. Newell, The Law on Slander and Libel in Civil and Criminal Cases, 6, (1924), citing Curtis v. Mussey, 6 Gray (Mass.) 261.

19 R.L. McEwen and P.S.C. Lewis, Gatley on Libel and Slander, 8, (1967).

20 Ibid., citing Nevill v. Fine Arts Co., 2 Q.B. 163 (1895).

21 Ibid., citing Blake vs. Stevens 11 L.T. 543 (1864); Fox v. Broderick, 14 Ir. C.L.R. 453 (1864); Shepheard v. Whitaker, L.R.L. 10 C.P. 502 (1875); Tompson v. Dashwood, 11 Q.B.D. 43 (1883); Morrison v. Ritchie, 4 F. 645 (Ct. Of Sess.) (1902); Van Wiginton v. Pulitzer, 218 Fed. R. 795 (1914).

22 Ibid., citing Cook v. Ward, 6 Bing. 409 (1830); R. v. Hicklin, L.R. 3 Q.B. 360.(1868); Bowen v. Hall, 6 Q.B.D. 343 (1881); Jones v. Hulton, 2 K.B. 279 (1909).

23 Vicario v. Court of Appeals, 308 SCRA 25, 34 (1999).

24 50 Am. Jur. 3d, Libel and Slander 493.

25 Borjal v. Court of Appeals, 301 SCRA 1, 18 (1999), citing Kunkle v. Cablenews-American, 42 Phil. 757 (1922), Corpus v. Cuaderno, Sr., 16 SCRA 807 (1966), and People v. Monton, 6 SCRA 801 (1962).

26 142 SCRA 171 (1986).

27 Jimenez v. Patricia, Inc., 340 SCRA 525 (2000); Philippine Basketball Association v. Court of Appeals, 337 SCRA 358 (2000); Victorias Milling Co., Inc. v. Court of Appeals, 333 SCRA 663 (2000); Roman Catholic Archbishop of Manila v. Court of Appeals, 269 SCRA 145, 153 (1997).

28 Catholic Bishop of Balanga v. Court of Appeals, 264 SCRA 181, 191-192 (1996). See also Sy v. Court of Appeals, 330 SCRA 550, 555-556 (2000); Logronio v. Taleseo, 312 SCRA 52, 61-62 (1999); Dando v. Frazer 227 SCRA 126, 133 (1993); Espina v. Court of Appeals, 215 SCRA 484, 488 (1992); Carillo v. De Paz, 18 SCRA 467, 471(1966); Hemandez v. Andal, 78 Phil 196, 209-210 (1947).

29 T.B. Aquino, Torts and Damages, 2001 Ed., p. 470, citing Watkins, p. 145.

30 Vasquez v. Court of Appeals, 314 SCRA 460, 471(1999); Alonzo v. Court of Appeals, 241 SCRA 51, 59(1995); Daez v. Vasquez, 191 SCRA 61,67(1990).

31 74 Am Jur2d Torts 2, citing Fisher v. Toler, 194 Kan 701, 401 P2d 1012.

32 74 Am Jur 2d Torts 2, citing Tisdale vs. Eubanks, 180 NC 153, 104 SE 339, 11 ALR 374; Smith v. Buck, 119 Ohio St 101, J62 NE 383,61 ALR 1343.

33 74 Am Jur 2d Torts 4; 1 Am Jur 2d, Actions 49.

34 74 Am Jur 2d Torts 4, citing Miller v. Monsen, 228 Minn 400, 37 NW2d 543, Harris v. Nashville Trust Co., 128 Tenn 573, 162 SW 584.

35 74 Am Jur 2d Torts 4, citing Seidel v. Greenberg, 108 NJ Super 248, 260 A2d 863, 40 ALR 3d 987.

36 Report of the Code Commission, p. 39.

37 Report of the Code Commission, pp. 33-34.

38 Ibid.

39 Tolentino, supra at 89.

40 Concepcion v. Court of Appeals, 324 SCRA 85, 94 (2000) citing E.P. Caguioa, Comments and Cases on Civil Law, 1959 Ed., Vol. I, p. 41.

41 Ibid.

42 74 Am Jur 2d Torts 32. 38 Am Jur 2d Fright, Shock and Mental Disturbance.

43 Report of the Code Commission, p. 33.

44 TSN, My 10, 1993, pp. 8-9.

45 Michael J. Diamond and Peter G. Gowing, supra, Note 24.

46 TSN, Hearing of November 18, 1990, pp. 8-9 and 19.

47 See next page.

48 In Re: Emil P. Jurado, 243 SCRA299, 327 (1995), citing Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861 (1988).

49 Ibid., pp. 6, 11-12.

50 159 SCRA 623, 627 (1988), citing 59 Am. Jur. 2d Parties 415, Moore, Federal Practice, 2d., Vol. 3B, pp. 23-257, 23-258.

51 Certia v. Notre Dame du Lac University, 141 N.E. 318.

52 72 SCRA 347, 357 (1976) citing Scott v. Donald, 165 U.S. 107, 41 Law. Ed. 447, 52 S. Ct. 217.

53 67A C.J.S. Parties, 24.

54 Ibid.

55 Ibid. Also 59 Am. Jur. 2d Parties 46, 55 and 62; 67A C.J.S. Parties, 698.

56 Ibid.

57 59 Am. Jur. 2d Parties 63.

58 Ibid.

59 Ibid.

60 Exhibit B.

61 Exhibit C.

62 53 C.J.S., Libel and Slander, 146 citing Stidham v. State Bank of Ebson, 270 p. 594, 126 Kan 600 (1928), Rusciano & Son Corporation v. Mihalyfi, 1 N.Y.S. 2d 787, 165 Misc. 932; R.G. Dun & Co. vs. Shepp, 91 S.W. 2d 330, 127 Tex. 80.

63 Brayton v. Cleveland Special Police Co., 63 Ohio St 83, 57 N.E. 1085 (1900).

64 59 Am. Jur. 2d Parties 62, p. 473 citing Maxwell v. Brougher, 222 P2d 910, 99 C.A. 2d 824.

65 59 Am. Jur. 2dParties 62, p. 473 citing Nunelly v. First Federal Building & Loan Association of Agden, 154 P.2d 620, 107 Utah 347.

66 Article 2219. Moral damages may be recovered in the following and analogous cases:

xxx xxx xxx;

(10) Acts and actions referred to in Articles 21,26, 27,28, 29, 30, 32, 34, and 35,

xxx xxx xxx.

67 TSNs, April 26, 1993, pp. 23, 25; July 30, 1993, pp. 13-14, 16-17; November 12, 1993, pp, 7, 9, 20-21; April 18, 1994, pp. 7, 10-12.

68 Article 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

69 Article 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

xxx xxx xxx

(11) In any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered.

In all cases, the attorneys fees and expenses of litigation must be reasonable.

70 67A C.J.S. Parties 30.

71 59 Am. Jur. 2d Parties 90, citing Williams v. State (La), 350 So. 2d 131; Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226, 271 N.W. 2d 879; Drainage Dist. Of Lincoln County v. Kirkpatrick-Pettis Co., 140 Neb 530, 300 NW 582.

72 46 Am. Jur. 2d Judgments 108.