IBP VS ZAMORA

Facts: Invoking his powers as Commander-in-Chief under Sec. 18, Art. VII of the Constitution, the President directed
the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless violence. The President declared that the
services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only,
until such time when the situation shall have improved. The IBP filed a petition seeking to declare the deployment of
the Philippine Marines null and void and unconstitutional.

Issues:
(1) Whether or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial
review
(2) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP

Held:
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily
exercises a discretionary power solely vested in his wisdom. Under Sec. 18, Art. VII of the Constitution, Congress may
revoke such proclamation of martial law or suspension of the privilege of the writ of habeas corpus and the Court may
review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the
revocation or review of the Presidents action to call out the armed forces. The distinction places the calling out power
in a different category from the power to declare martial law and power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped together the 3 powers and provided for
their revocation and review without any qualification.

The reason for the difference in the treatment of the said powers highlights the intent to grant the President the widest
leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial
law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and
thus necessitating safeguards by Congress and review by the Court.

In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual
basis. The present petition fails to discharge such heavy burden, as there is no evidence to support the assertion that
there exists no justification for calling out the armed forces.

The Court disagrees to the contention that by the deployment of the Marines, the civilian task of law enforcement is
militarized in violation of Sec. 3, Art. II of the Constitution. The deployment of the Marines does not constitute a
breach of the civilian supremacy clause. The calling of the Marines constitutes permissible use of military assets for
civilian law enforcement. The local police forces are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force.
The real authority in the operations is lodged with the head of a civilian institution, the PNP, and not with the military.
Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian
position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.
ESTRADA VS ESCRITOR (AUG. 4, 2003)
EN BANC
[A.M. No. P-02-1651. August 4, 2003]
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.
D E C I S I O N
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority
higher than the state. To be held on balance are the states interest and the respondents religious freedom. In this
highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the
American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States,
there is probably no more intensely controverted area of constitutional interpretation than the religion clauses.
[1]
The
U.S. Supreme Court itself has acknowledged that in this constitutional area, there is considerable internal
inconsistency in the opinions of the Court.
[2]
As stated by a professor of law, (i)t is by now notorious that legal
doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of
constitutional law have confusion and inconsistency achieved such undisputed sovereignty.
[3]
Nevertheless, this thicket
is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and
panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction.
That the religious freedom question arose in an administrative case involving only one person does not alter the
paramount importance of the question for the constitution commands the positive protection by government of
religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us.
[4]

I. Facts
The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is
necessary therefore to lay down the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr.,
presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an investigation of rumors that
respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have
a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a
resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that
she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.
[5]

Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the allegation
and challenged Estrada to appear in the open and prove his allegation in the proper forum.
[6]
Judge Caoibes set a
preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case
to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still
pending in the Office of the Court Administrator (OCA). Escritors motion was denied. The preliminary conference
proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for
immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from
conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year
old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary
should be respectable and Escritors live-in arrangement did not command respect.
[7]

Respondent Escritor testified that when she entered the judiciary in 1999,
[8]
she was already a widow, her husband
having died in 1998.
[9]
She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage
for twenty years and that they have a son. But as a member of the religious sect known as the Jehovahs Witnesses and
the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In
fact, after ten years of living together, she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital
relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and honored in
full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to
legalize this union.
Signed this 28
th
day of July 1991.
[10]

Escritors partner, Quilapio, executed a similar pledge on the same day.
[11]
Both pledges were executed in Atimonan,
Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living
with another woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During
her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their
Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and considered her identification of
her signature and the signature of Quilapio sufficient authentication of the documents.
[12]

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the
same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court
Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor
reiterated her religious congregations approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to
the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness
(Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons to be held to
and honored in full accord with the principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER
BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to
her case.
[13]

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge
Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course of
Judge Macedas investigation, Escritor again testified that her congregation allows her conjugal arrangement with
Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which
explain the basis of her congregations belief and practice regarding her conjugal arrangement. Escritor started living
with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman
who confirmed to her that she was living with her (Escritors) husband.
[14]

Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a presiding minister
since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of
and procedure for executing a Declaration of Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and
regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request
them to execute a Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to
execute this document?
A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a
member (sic) of the congregation, baptized member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic)
gives the Christian Congregation view that the couple has put themselves on record before God and man
that they are faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are
members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite
member of my congregation, opposite sex, and that this document will give us the right to a marital
relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a
marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to
cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The
basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the
Bible, Jesus said that everyone divorcing his wife, except on account of fornication, makes her a subject
for adultery, and whoever marries a divorced woman commits adultery.
[15]

Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May
2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the
personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two
transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of
the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal
circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in the
usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article,
Maintaining Marriage in Honor Before God and Men,
[16]
in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding within
the congregation all over the world except in countries where divorce is allowed. The Jehovahs congregation requires
that at the time the declarations are executed, the couple cannot secure the civil authorities approval of the marital
relationship because of legal impediments. It is thus standard practice of the congregation to check the couples marital
status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in
Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the
declarants and their respective spouses commission of adultery are investigated before the declarations are
executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on
her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza
Congregation. That Escritors and Quilapios declarations were approved are shown by the signatures of three
witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregations branch office that these
three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their
marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing
immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in
the congregation.
[17]

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs Witnesses since
1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the
original copy of the magazine article entitled, Maintaining Marriage Before God and Men to which Escritor and
Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of
the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and
Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovahs Witnesses congregations which also distribute them to the public.
[18]

The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for
resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their
own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the
relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel, that
the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that she
bound herself to seek means to . . . legalize their union. Thus, even assuming arguendo that the declaration is valid
and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal
purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for
government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-
in relationship can simply join the Jehovahs Witnesses congregation and use their religion as a defense against legal
liability.
[19]

On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on
the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine article entitled,
Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate greatly
affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of the
proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of
Caesars authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude
of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the
one desiring to become a disciple of Gods Son, can be guided by basic Scriptural principles that hold true in all cases.
Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or the
relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether in
itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives with a wife but also
spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the
relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the
part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of ones immediate family, or a homosexual relationship or other such situation
condemned by Gods Word. It is not the lack of any legal validation that makes such relationships unacceptable; they
are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any
kind of Declaration of Faithfulness, since it would have no merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do all
one can to establish the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then
such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the
present union can receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one has done all
that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official
action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs
represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to
approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the
political state. She always gives primary concern to Gods view of the union. Along with this, every effort should be
made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable among
all. Such course will bring Gods blessing and result to the honor and praise of the author of marriage, Jehovah God.
(1 Cor. 10:31-33)
[20]

Respondent also brought to the attention of the investigating judge that complainants Memorandum came from
Judge Caoibes chambers
[21]
whom she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations credible as
they were supported by testimonial and documentary evidence. He also noted that (b)y strict Catholic standards, the
live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: that
which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out,
however, that the more relevant question is whether or not to exact from respondent Escritor, a member of Jehovahs
Witnesses, the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at
bar.
[22]
The investigating judge acknowledged that religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator
(at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate opinion in German vs. Barangan, 135
SCRA 514, 530-531) and thereby recommended the dismissal of the complaint against Escritor.
[23]

After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court
Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to
dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she
joined the judiciary as her husband had died a year before, it is due to her relationship with a married man, voluntarily
carried on, that respondent may still be subject to disciplinary action.
[24]
Considering the ruling of the Court
in Dicdican v. Fernan, et al.
[25]
that court personnel have been enjoined to adhere to the exacting standards of morality
and decency in their professional and private conduct in order to preserve the good name and integrity of the court of
justice, DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized
with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt
with more severely in accordance with the Civil Service Rules.
[26]

II. Issue
Whether or not respondent should be found guilty of the administrative charge of gross and immoral
conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents right to
religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which
government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing gross and immoral conduct under Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and practices and moral
standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal arrangement with a man not her legal
husband does not constitute disgraceful and immoral conduct for which she should be held administratively
liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the
United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in the recent past in the United States without a
deep appreciation of the roots of these controversies in the ancient and medieval world and in the American
experience.
[27]
This fresh look at the religion clauses is proper in deciding this case of first impression.
In primitive times, all of life may be said to have been religious. Every significant event in the primitive mans life,
from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively
elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him
the wrathful vengeance of a superhuman mysterious power.
[28]
Distinction between the religious and non-religious
would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe
enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king
protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people
with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.
[29]

Time came, however, when the function of acting as intermediary between human and spiritual powers became
sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the
full-time services of a special priest class. This saw the birth of the social and communal problem of the competing
claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of
the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he
was the head and representative of the community.
[30]

There being no distinction between the religious and the secular, the same authority that promulgated laws
regulating relations between man and man promulgated laws concerning mans obligations to the supernatural. This
authority was the king who was the head of the state and the source of all law and who only delegated performance of
rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide,
larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed
rules for inheritance of property;
[31]
and also catalogued the gods and assigned them their places in the divine hierarchy
so as to put Hammurabis own god to a position of equality with existing gods.
[32]
In sum, the relationship of religion to
the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost universally
the dominant partner.
[33]

With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the
Mosaic religion:theocracy. The authority and power of the state was ascribed to God.
[34]
The Mosaic creed was not
merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch,
prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when
to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel,
disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates,
but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious
motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury,
mistreating aliens or using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of
the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary
position over the previous reigning gods.
[35]
Moses, on the other hand, capitalized on the natural yearnings of the
Hebrew slaves for freedom and independence to further Gods purposes. Liberation and Exodus were preludes to Sinai
and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full
worship of God.
[36]

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else,
charted not only the future of religion in western civilization, but equally, the future of the relationship between
religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed
out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious
exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as
confined to each separate people believing in them, and the question of change from one religious belief to another
did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty
of religion arose.
[37]
(emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to
the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of
government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each
received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet
and priest. Saul disobeyed and even sought to slay Samuel the prophet of God.
[38]
Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to further the states purposes. He reformed the order
of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the
throne.
[39]

The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship.
When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part
of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the state. He set his
great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than
worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.
[40]

The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness
prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their
crime was hatred of the human race, placing them in the same category as pirates and brigands and other enemies of
mankind who were subject to summary punishments.
[41]

In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more
efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state
over which he had no control. He had two options: either to force it into submission and break its power or enter into
an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the
churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.
[42]
But his efforts
proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius,
his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing is done by them
contrary to discipline.
[43]
A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided that liberty
of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine
affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted
that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed
to observe the same without let or hindrance. Furthermore, it was provided that the same free and open power to
follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order
that every person may have free opportunity to worship the object of his choice.(emphasis supplied)
[44]

Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually,
exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying
his complex empire. Within seven years after the Edict of Milan, under the emperors command, great Christian
edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were
forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his
successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church
had been the victim of persecution and repression, but this time it welcomed the states persecution and repression of
the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die
unsaved.
Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of
one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire,
and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church
stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality
but superiority over the secular states. This claim, symbolized by Pope Leos crowning of Charlemagne, became the
churchs accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the union of
church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of
supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor
to nullify the inference of supremacy.
[45]
The whole history of medieval Europe was a struggle for supremacy between
prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the
second quarter of the 13
th
century, the Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad
extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic
Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the
Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate to say that the same causes that gave rise to the
Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of
the principle of separation of church and state.
[46]
Pleas for tolerance and freedom of conscience can without doubt be
found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for
toleration of religion, so did the papists that lived where Protestants were dominant.
[47]
Papist and Protestant
governments alike accepted the idea of cooperation between church and state and regarded as essential to national
unity the uniformity of at least the outward manifestations of religion.
[48]
Certainly, Luther, leader of the Reformation,
stated that neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian
man, unless it be done with his own consent.
[49]
But when the tables had turned and he was no longer the hunted
heretic, he likewise stated when he made an alliance with the secular powers that (h)eretics are not to be disputed
with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source,
and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise.
[50]
To Luther,
unity among the peoples in the interests of the state was an important consideration. Other personalities in the
Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to
further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.
[51]

There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance
than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the
confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the
evil more widespread.
[52]
The minority or dissident sects also ardently advocated religious liberty. The Anabaptists,
persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox
in the 17
th
century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as
outside the realm of political governments.
[53]
The English Baptists proclaimed that the magistrate is not to meddle
with religion or matters of conscience, nor compel men to this or that form of religion.
[54]

Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished:
the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers belief that civic
cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second
was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by
Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in
its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in
religious affairs.
[55]
After the Reformation, Erastianism pervaded all Europe except for Calvins theocratic Geneva. In
England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted
by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no
person was buried in a shroud made of any substance other than wool.
[56]
Under Elizabeth, supremacy of the crown
over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of
England were adopted and English Protestantism attained its present doctrinal status.
[57]
Elizabeth was to be recognized
as the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal.
She and her successors were vested, in their dominions, with all manner of jurisdictions, privileges, and preeminences,
in any wise touching or concerning any spiritual or ecclesiastical jurisdiction.
[58]
Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics.
[59]
In
1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19
th
century when the Roman Catholic Relief Act of 1829 was
adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.
[60]

When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional
foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy
Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism
embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but
other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its
church-state relations the principle of the mutual independence of religion and government and the concomitant
principle that neither might be used as an engine to further the policies of the other, although the principle was in
its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The
religious wars of 16
th
and 17
th
century Europe were a thing of the past by the time America declared its independence
from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the
United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil,
civil strife, and persecution generated in large part by established sects determined to maintain their absolute political
and religious supremacy. With the power of government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to
time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with
the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and
killed. Among the offenses for which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established churches, non-attendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.
[61]

In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the
time the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by
proscribing all differences in religious opinions.
[62]

In sum, this history shows two salient features: First, with minor exceptions, the history of church-state
relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of
Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use
of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by
the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and
emperors in exchange for religions invaluable service. This was the context in which the unique experiment of the
principle of religious freedom and separation of church and state saw its birth in American constitutional
democracy and in human history.
[63]

V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many
of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious
and political ideas from England and English books and pamphlets largely provided their cultural fare.
[64]
But although
these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend
government favored churches, some of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to the individuals and companies designated
to make the laws which would control the destinies of the colonials authorized them to erect religious establishments,
which all, whether believers or not, were required to support or attend.
[65]
At one time, six of the colonies established a
state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious
diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different
faiths.
[66]

This was the state of the American colonies when the unique American experiment of separation of church and
state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of
interdependent practical and ideological factors contributed in bringing it forth. Among these were the English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of
commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their
experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European
rationalism and deism.
[67]
Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the American colonies to different faiths
resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and
commerce. The colonies were large financial investments which would be profitable only if people would settle
there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a
necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness,
encouraging them to think less of the Church and more of the State and of commerce.
[68]
The diversity brought about
by the colonies open gates encouraged religious freedom and non-establishment in several ways. First, as there were
too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the
daily exposure to different religions, the passionate conviction in the exclusive rightness of ones religion, which impels
persecution for the sake of ones religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment could not survive.
[69]

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about
four percent of the entire population of the country had a church affiliation at the time the republic was
founded.
[70]
This might be attributed to the drifting to the American colonies of the skepticism that characterized
European Enlightenment.
[71]
Economic considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated
religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to religious
liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for
similar independence nor accede to compulsory taxation to support a church to which they did not belong.
[72]

However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed
the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to
hold public services subject to registration of their ministers and places of worship.
[73]
Although the toleration accorded
to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless
was of some influence to the American experiment.
[74]
Even then, for practical considerations, concessions had to be
made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying
effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18
th
century, an evangelical religious revival
originating in New England, caused a break with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, putting
emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although
they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch
advocates of separation of church and state.
[75]

Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island
where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom
was not based on practical considerations but on the concept of mutual independence of religion and government. In
1663, Rhode Island obtained a charter from the British crown which declared that settlers have it much on their heart
to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in
religious concernments.
[76]
In Williams pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a
Conference between Truth and Peace,
[77]
he articulated the philosophical basis for his argument of religious liberty. To him,
religious freedom and separation of church and state did not constitute two but only one principle. Religious
persecution is wrong because it confounds the Civil and Religious and because States . . . are proved essentially
Civil. The power of true discerning the true fear of God is not one of the powers that the people have transferred to
Civil Authority.
[78]
Williams Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the
separation of church and state.
[79]

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having
been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of
conscience because imposition, restraint and persecution for conscience sake, highly invade the Divine
prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted
large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and
Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was
responsible in large part for the Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West
Jersey, in America, a monumental document in the history of civil liberty which provided among others, for liberty of
conscience.
[80]
The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started
by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly
contributed to the evolution of separation and freedom.
[81]
The Constitutional fathers who convened in Philadelphia in
1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly
influenced by the successful examples of Rhode Island and Pennsylvania.
[82]

Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social
contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in Americas
Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of
Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious
treatment by a new nation that severed its political bonds with the English crown which violated the self-evident truth
that all men are created equal.
[83]

The social contract theory was applied by many religious groups in arguing against establishment, putting
emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political
body. That Locke and the social contract theory were influential in the development of religious freedom and
separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his
liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend
any further than the common good, but is obliged to secure every ones property. To give laws, to receive obedience, to
compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrates
power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force
without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in
outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing
can be acceptable to God.
[84]
(emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and
rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto Caesar
that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the realm of
religion was not one of the powers conferred on government as part of the social contract.
[85]

Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary
and post-revolutionary period were also influenced by European deism and rationalism,
[86]
in general, and some
were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John
Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or
Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology
to the background.
[87]
For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the
state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as
witnessed throughout history.
[88]
Not only the leaders but also the masses embraced rationalism at the end of the
eighteenth century, accounting for the popularity of Paines Age of Reason.
[89]

Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the
American experiment of the First Amendment. Virginia was the first state in the history of the world to proclaim
the decree of absolute divorce between church and state.
[90]
Many factors contributed to this, among which were that
half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the
established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many
influential laymen with its identification with the Crowns tyranny, and above all, present in Virginia was a group of
political leaders who were devoted to liberty generally,
[91]
who had accepted the social contract as self-evident, and who
had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the following provision in the Bill of
Rights of the states first constitution:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of
religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance,
love, and charity towards each other.
[92]
(emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and
Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the
population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a
bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters
to contribute to the support of the establishment.
[93]
But the dissenters were not satisfied; they not only wanted abolition
of support for the establishment, they opposed the compulsory support of their own religion as others. As members of
the established church would not allow that only they would pay taxes while the rest did not, the legislature enacted in
1779 a bill making permanent the establishments loss of its exclusive status and its power to tax its members; but those
who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk
and indicate which society for the purpose of Religious Worship he wished to support. On the basis of this list,
collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately
among the societies.
[94]
The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was introduced
requiring all persons to pay a moderate tax or contribution annually for the support of the Christian religion, or of
some Christian church, denomination or communion of Christians, or for some form of Christian worship.
[95]
This
likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental
Memorial and Remonstrance against Religious Assessments written by Madison and widely distributed before the
reconvening of legislature in the fall of 1785.
[96]
It stressed natural rights, the governments lack of jurisdiction over
the domain of religion, and the social contract as the ideological basis of separation while also citing practical
considerations such as loss of population through migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we owe to our
creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The
religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every
man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the
opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other
men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of
every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is
precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be
considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a
member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to
the general authority, much more must every man who becomes a member of any particular civil society do it with the
saving his allegiance to the universal sovereign.
[97]
(emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures
appended to the Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been
voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments
or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure
from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it
by coercions on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious
worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods,
nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and
by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or
affect their civil capacities.
[98]
(emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or
particular establishment in Virginia.
[99]
But the passage of this law was obtained not only because of the influence of the
great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting
sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged
minority of the population. This made them anxious to pull down the existing state church as they realized that it was
impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however,
many of the Presbyterians were sincere advocates of separation
[100]
grounded on rational, secular arguments and to the
language of natural religion.
[101]
Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion
was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no
relation with the social order.
[102]
To them, the Holy Ghost was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary ti the spirit of the Gospel.
[103]
Thus, separation was
necessary.
[104]
Jeffersons religious freedom statute was a milestone in the history of religious freedom. The United
States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection against government interference
with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of
religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced
from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of
power of Congress to act on any subject not expressly mentioned in the Constitution.
[105]
However, omission of an
express guaranty of religious freedom and other natural rights nearly prevented the ratification of the
Constitution.
[106]
In the ratifying conventions of almost every state, some objection was expressed to the absence of a
restriction on the Federal Government as regards legislation on religion.
[107]
Thus, in 1791, this restriction was made
explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first
part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally
broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by
those who have studied the religion clauses as regards its exact meaning and the paucity of records in Congress renders
it difficult to ascertain its meaning.
[108]
Consequently, the jurisprudence in this area is volatile and fraught with
inconsistencies whether within a Court decision or across decisions.
One source of difficulty is the difference in the context in which the First Amendment was adopted and in which
it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education,
health care, poor relief, and other aspects of social life with significant moral dimension - while government played a
supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or
religiously-motivated associations. Today, government plays this primary role and religion plays the supportive
role.
[109]
Government runs even family planning, sex education, adoption and foster care programs.
[110]
Stated otherwise
and with some exaggeration, (w)hereas two centuries ago, in matters of social life which have a significant moral
dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of government.
[111]
With government regulation of individual
conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some
individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular
government actions and religion clause values.
[112]

Parallel to this expansion of government has been the expansion of religious organizations in population, physical
institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care
centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for
prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious
organizations complement and compete with commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social
and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace,
economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably,
these developments have brought about substantial entanglement of religion and government. Likewise, the growth in
population density, mobility and diversity has significantly changed the environment in which religious organizations
and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their
own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws
should require, permit or prohibit;
[113]
and agreement that if the rights of believers as well as non-believers are all to be
respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and
political realities must be avoided.
[114]

Religion cases arise from different circumstances. The more obvious ones arise from a government action which
purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.
[115]
The
more difficult religion clause cases involve government action with a secular purpose and general applicability which
incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions
are referred to as those with burdensome effect on religious exercise even if the government action is not religiously
motivated.
[116]
Ideally, the legislature would recognize the religions and their practices and would consider them, when
practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened
and burdened turn to the courts for protection.
[117]
Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a burdensome effect.
[118]

With the change in political and social context and the increasing inadvertent collisions between law and religious
exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit
current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes.
[119]
It
was in the 1890 case of Davis v. Beason
[120]
that the United States Supreme Court first had occasion to define
religion, viz:
The term religion has reference to ones views of his relations to his Creator, and to the obligations they impose of
reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of
worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in
declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise
thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting
his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to
exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to
prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.
[121]

The definition was clearly theistic which was reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States v. Ballard
[122]
that the free exercise of religion embraces the right to
maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox
faiths.
[123]
By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as
Buddhism and Taoism.
[124]
In 1961, the Court, in Torcaso v. Watkins,
[125]
expanded the term religion to non-theistic
beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a
definitional problem in United States v. Seeger
[126]
which involved four men who claimed conscientious objector
status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion
opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that you could call (it) a
belief in a Supreme Being or God. These just do not happen to be the words that I use. Forest Peter, another one of the
four claimed that after considerable meditation and reflection on values derived from the Western religious and
philosophical tradition, he determined that it would be a violation of his moral code to take human life and that he
considered this belief superior to any obligation to the state. The Court avoided a constitutional question by broadly
interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and
Service Act of 1940 which exempt from combat anyone who, by reason of religious training and belief, is
conscientiously opposed to participation in war in any form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the
meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological,
or philosophical views (and) the test of belief in relation to a Supreme Being is whether a given belief that is sincere
and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious
belief and training.
Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs
such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as
religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies a central
place in the believers life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot
be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth
or reasonableness of the belief.
[127]
Fourth, there must be some associational ties,
[128]
although there is also a view that
religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled
to the protection of the Free Exercise Clause.
[129]

Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the
issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion
clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the
same coin.
[130]
In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would
cancel each other out, but two complementary thoughts that apply in different ways in different circumstances.
[131]
The
purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the
free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is
the protection and promotion of religious liberty.
[132]
The end, the goal, and the rationale of the religion clauses is this
liberty.
[133]
Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against
which they are directed is government-induced homogeneity.
[134]
The Free Exercise Clause directly articulates the
common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which government historically had demonstrated a
propensity.
[135]
In other words, free exercise is the end, proscribing establishment is a necessary means to this end to
protect the rights of those who might dissent from whatever religion is established.
[136]
It has even been suggested that
the sense of the First Amendment is captured if it were to read as Congress shall make no law respecting an
establishment of religion or otherwise prohibiting the free exercise thereof because the fundamental and single purpose
of the two religious clauses is to avoid any infringement on the free exercise of religions
[137]
Thus, the Establishment
Clause mandates separation of church and state to protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture
the state apparatus to the disadvantage of those of other faiths, or of no faith at all
[138]
because history has shown that
religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from
those who hold different beliefs than an enlightened secular state.
[139]
In the words of the U.S. Supreme Court, the two
clauses are interrelated, viz: (t)he structure of our government has, for the preservation of civil liberty, rescued the
temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion
of the civil authority.
[140]

In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that
government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice
Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the
basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and
none inhibited.
[141]
(emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,
[142]
even opposing, strains of jurisprudence
on the religion clauses:separation (in the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality oraccommodation. A view of the landscape of U.S. religion clause cases would
be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious
clause cases. Most of these cases are cited as authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.
[143]
This
landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that
the failure to practice polygamy by male members of his religion when circumstances would permit would be punished
with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352, Revised
Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds conviction,
using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to
action. It cited Jeffersons Bill Establishing Religious Freedom which, according to the Court, declares the true
distinction between what properly belongs to the Church and what to the State.
[144]
The bill, making a distinction
between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or
propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all
religious liberty;
that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break
out into overt acts against peace and good order.
[145]
(emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in
violation of social duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and
opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious
worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent
a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that
plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To
permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to
permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
[146]

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating
individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a
particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion
for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for
public welfare purposes and have nothing to do with the legislatures religious preferences. Any burden on religion
that results from state regulation of conduct arises only when particular individuals are engaging in the generally
regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.
[147]
The Free Exercise Clause thus gave no protection against the proscription
of actions even if considered central to a religion unless the legislature formally outlawed the belief itself.
[148]

This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld
other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as
the Davis case and Church of Latter Day Saints v. United States.
[149]
However, more than a century
since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But
while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged.
The belief-action distinction is still of some importance though as there remains an absolute prohibition of
governmental proscription of beliefs.
[150]

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs
[151]
and
proscribes government from questioning a persons beliefs or imposing penalties or disabilities based solely on those
beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,
[152]
a unanimous
Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of
God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into
the truth of a persons religious beliefs. As held in United States v. Ballard,
[153]
(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines
or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are
accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,
[154]
the Court struck
down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a
state agency. The law was challenged by Cantwell, a member of the Jehovahs Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may
seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to
exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false
statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses
and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of
citizens of a democracy.
[155]

Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection
of belief but also freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the
nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every
case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)
[156]

The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on
the streets and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,
[157]
ruled that police could not prohibit
members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other
citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,
[158]
the Court
unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the city park for
a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs Witnesses to
questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant
censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner
regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be limited to
certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.
[159]

The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional
religious practices. Protection in this realm depends on the character of the action and the government rationale for
regulating the action.
[160]
The Mormons religious conduct of polygamy is an example of unconventional religious
practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: (c)rime is not the less odious
because sanctioned by what any particular sect may designate as religion.
[161]

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously
dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how
insignificant was the governments non-religious regulatory interest so long as the government is proscribing action
and not belief. Thus, the Court abandoned the simplistic belief-actiondistinction and instead recognized the
deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and governments inadvertent interference with religion in
pursuing some secular objective.
[162]
In the 1940 case of Minersville School District v. Gobitis,
[163]
the Court upheld a
local school board requirement that all public school students participate in a daily flag salute program, including the
Jehovahs Witnesses who were forced to salute the American flag in violation of their religious training, which
considered flag salute to be worship of a graven image. The Court recognized that the general requirement of
compulsory flag salute inadvertently burdened the Jehovah Witnesses practice of their religion, but justified the
government regulation as an appropriate means of attaining national unity, which was the basis of national
security. Thus, although the Court was already aware of the deliberate-inadvertent distinction in government
interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no matter how trivial the states non-religious
objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less
impact on religion, so long as government was acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v. Barnette
[164]
which involved a similar
set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of
utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that
compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students who were
members of the Jehovahs Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it
was decided not on the issue of religious conduct as the Court said, (n)or does the issue as we see it turn on ones
possession of particular religious views or the sincerity with which they are held. While religion supplies appellees
motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious
views hold such a compulsory rite to infringe constitutional liberty of the individual. (emphasis supplied)
[165]
The Court
pronounced, however, that, freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.
[166]
The
Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the common everyday economic and public welfare objectives
of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny
under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the
seeds of this heightened scrutiny would only grow to a full flower in the 1960s.
[167]

Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise
jurisprudence.
[168]
Atwo-part balancing test was established in Braunfeld v. Brown
[169]
where the Court considered the
constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another
day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court,
found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative
ways of achieving the states interest. He employed a two-part balancing test of validity where the first step was for
plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld
only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden
on religious practices.
[170]
The Court found that the state had an overriding secular interest in setting aside a single day
for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as
a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.
[171]
This test
was similar to thetwo-part balancing test in Braunfeld,
[172]
but this latter test stressed that the state interest was not
merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. In
this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in
the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious
principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court
is to withstand appellants constitutional challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional rights of free exercise, or because any incidental
burden on the free exercise of appellants religion may be justified by a compelling state interest in the regulation
of a subject within the States constitutional power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405,
421, 83 S Ct 328.
[173]
(emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational
relationship of the substantial infringement to the religious right and a colorable state interest. (I)n this highly
sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible
limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.
[174]
The Court found that there was no
such compelling state interest to override Sherberts religious liberty. It added that even if the state could show that
Sherberts exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling
of work, it was incumbent upon the state to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court
thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from
claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherberts benefits would force
her to choose between receiving benefits and following her religion. This choice placed the same kind of burden upon
the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This germinal case
of Sherbertfirmly established the exemption doctrine,
[175]
viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict
with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court
moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free
Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling
state interest - the highest level of constitutional scrutiny short of a holding of aper se violation. Thus, the problem
posed by the belief-action test and the deliberate-inadvertent distinction was addressed.
[176]

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale
in Sherbert continued to be applied. InThomas v. Review Board
[177]
and Hobbie v. Unemployment Appeals
Division,
[178]
for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job
requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v.
Lee,
[179]
for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal governments refusal to
exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of
religious beliefs. The Court held that (b)ecause the broad public interest in maintaining a sound tax system is of such a
high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.
[180]
It reasoned
that unlike in Sherbert, an exemption would significantly impair governments achievement of its objective - the fiscal
vitality of the social security system; mandatory participation is indispensable to attain this objective. The Court noted
that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes
where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not
contribute to the governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to
religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with religious practices. Although the members of
the Court often disagreed over which governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in
favor of the free exercise of religion.
[181]

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder
[182]
where the Court upheld the religious
practice of the Old Order Amish faith over the states compulsory high school attendance law. The Amish parents in
this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger, writing for
the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to
override the interest claiming protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right of
free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying these two provisions relating to religion
have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the
Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation
by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be
subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations
of general applicability. . . .This case, therefore, does not become easier because respondents were convicted for their
actions in refusing to send their children to the public high school; in this context belief and action cannot be neatly
confined in logic-tight compartments. . .
[183]

The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise
Clause. In Employment Division, Oregon Department of Human Resources v. Smith,
[184]
the sharply
divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach
and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this
case, the well-established practice of the Native American Church, a sect outside the Judeo-Christian mainstream of
American religion, came in conflict with the states interest in prohibiting the use of illicit drugs. Oregons controlled
substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black,
worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as job-
related misconduct. They applied for unemployment compensation, but the Oregon Employment Appeals Board
denied their application as they were discharged for job-related misconduct. Justice Scalia, writing for the majority,
ruled that if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and
otherwise valid law, the First Amendment has not been offended. In other words, the Free Exercise Clause would be
offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on
the Reynolds case and in effect, equated Oregons drug prohibition law with the anti-polygamy statute
inReynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment
compensation.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would
not apply it to require exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents,
is to hold the test inapplicable to such challenges. The governments ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on
measuring the effects of a governmental action on a religious objectors spiritual development. . . .To make an
individuals obligation to obey such a law contingent upon the laws coincidence with his religious beliefs except
where the States interest is compelling - permitting him, by virtue of his beliefs, to become a law unto himself,
. . . - contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling
governmental interest test was the most controversial part of the decision. Although she concurred in the result that the
Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure from
well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations fundamental commitment
to religious liberty. This portion of her concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he compelling state interest test
effectuates the First Amendments command that religious liberty is an independent liberty, that it occupies a
preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect,
unless required by clear and compelling government interest of the highest order. Justice Blackmun registered a
separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with
mischaracterizing precedents and overturning. . . settled law concerning the Religion Clauses of our
Constitution. He pointed out that the Native American Church restricted and supervised the sacramental use of
peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also
observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the
sacramental use of peyote. In conclusion, he said that Oregons interest in enforcing its drug laws against religious use
of peyote (was) not sufficiently compelling to outweigh respondents right to the free exercise of their religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard in Smith virtually
eliminated the requirement that the government justify with a compelling state interest the burdens on religious
exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and
has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.
[185]
First, the First amendment
was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate
regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference
with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an
interference with the minoritys religious freedom. If the regulation had instead restricted the majoritys religious
practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the
imposition of the political majoritys non-religious objectives at the expense of the minoritys religious interests
implements the majoritys religious viewpoint at the expense of the minoritys. Second, government impairment of
religious liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct
and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could
not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-
Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held
fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective
without serious inadvertent impact on religion.
[186]

Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as
discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative
clout,
[187]
contrary to the original theory of the First Amendment.
[188]
Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions andSmith virtually wiped out their judicial
recourse for exemption.
[189]
Thus, the Smith decision elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.
[190]
So much
was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of
1993. The RFRA prohibited government at all levels from substantially burdening a persons free exercise of religion,
even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling
state interest and the rule constituted the least restrictive means of furthering that interest.
[191]
RFRA, in effect, sought to
overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was
enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.
[192]
The
Court ruled that RFRA contradicts vital principles necessary to maintain separation of powers and the federal
balance. It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad
institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
[193]
which was ruled consistent with
the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African
religions brought to the Carribean by East African slaves. An ordinance made it a crime to unnecessarily kill, torment,
torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food
consumption. The ordinance came as a response to the local concern over the sacrificial practices of the
Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a
generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal
slaughter only insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected,
religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and
unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be
accorded protection as shown in Wisconsin.
[194]

B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of
Education.
[195]
Prior cases had made passing reference to the Establishment Clause
[196]
and raised establishment
questions but were decided on other grounds.
[197]
It was in the Everson case that the U.S. Supreme Court adopted
Jeffersons metaphor of a wall of separation between church and state as encapsulating the meaning of the
Establishment Clause. The often and loosely used phrase separation of church and state does not appear in the U.S.
Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
States
[198]
quoted Jeffersons famous letter of 1802 to the Danbury Baptist Association in narrating the history of the
religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none
other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I
contemplate with sovereign reverence that act of the whole American people which declared that their Legislature
should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a
wall of separation between Church and State.
[199]
(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader of the
advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the
amendment thus secured.
[200]

The interpretation of the Establishment Clause has in large part been in cases involving education, notably state
aid to private religious schools and prayer in public schools.
[201]
In Everson v. Board of Education, for example, the
issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their
children to and from Catholic schools. The reimbursement was part of a general program under which all parents of
children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child
benefit theory, i.e., that the school board was merely furthering the states legitimate interest in getting children
regardless of their religion, safely and expeditiously to and from accredited schools. The Court, after narrating the
history of the First Amendment in Virginia, interpreted the Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one
religion over another. Neither can force nor influence a person to go to or remain away from church against his will or
force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt
to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly participate in the affairs
of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of
religion by law was intended to erect a wall of separation between Church and State.
[202]

The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We
could not approve the slightest breach. New Jersey has not breached it here.
[203]

By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that
evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman
[204]
in determining the
constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and instructional
materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. First, the statute must have a secular legislative purpose; second, its primary or principal
effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed
2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an excessive entanglement with religion.
(Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)
[205]
Using this
test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as
fostering excessive entanglement between government and religion.
The most controversial of the education cases involving the Establishment Clause are the school prayer
decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer
decisions of the early 1960s.
[206]
In the 1962 case of Engel v. Vitale,
[207]
the Court invalidated a New York Board of
Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the
start of each school day. The majority opinion written by Justice Black stated that in this country it is no part of the
business of government to compose official prayers for any group of the American people to recite as part of a religious
program carried on by government. In fact, history shows that this very practice of establishing governmentally
composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England
and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the
Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to
degrade religion. The following year, the Engel decision was reinforced in Abington School District v.
Schempp
[208]
and Murray v. Curlett
[209]
where the Court struck down the practice of Bible reading and the recitation of
the Lords prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the
Establishment Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor
inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of history
that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official support of the State of Federal Government would be placed
behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and
observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free
of any compulsion from the state.
[210]

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and
resolutions passed by several state legislatures condemned these decisions.
[211]
On several occasions, constitutional
amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained
its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree
[212]
where the Court struck down an
Alabama law that required public school students to observe a moment of silence for the purpose of meditation or
voluntary prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional
religious instruction within public school premises and instructional time were declared offensive of the Establishment
Clause in the 1948 case of McCollum v. Board of Education,
[213]
decided just a year after the seminal Everson case. In
this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the
Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion
classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to
attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and
were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school
building. The religious teachers were employed at no expense to the school authorities but they were subject to the
approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction
were required to leave their classrooms and go to some other place in the school building for their secular studies while
those who were released from their secular study for religious instruction were required to attend the religious
classes. The Court held that the use of tax-supported property for religious instruction and the close cooperation
between the school authorities and the religious council in promoting religious education amounted to a prohibited use
of tax-established and tax-supported public school system to aid religious groups spread their faith. The Court rejected
the claim that the Establishment Clause only prohibited government preference of one religion over another and not an
impartial governmental assistance of all religions. In Zorach v. Clauson,
[214]
however, the Court upheld released time
programs allowing students in public schools to leave campus upon parental permission to attend religious services
while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that (t)he First
Amendment does not require that in every and all respects there shall be a separation of Church and State. The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to
promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present released time
program unless separation of Church and State means that public institutions can make no adjustments of their
schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy
of hostility to religion.
[215]

In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and
practices which have acquired a secular meaning and have become deeply entrenched in history. For instance,
in McGowan v. Maryland,
[216]
the Court upheld laws that prohibited certain businesses from operating on Sunday
despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws
and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court
held, viz:
It is common knowledge that the first day of the week has come to have special significance as a rest day in this
country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.
[217]

In the 1983 case of Marsh v. Chambers,
[218]
the Court refused to invalidate Nebraskas policy of beginning legislative
sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The majority opinion did not
rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious
beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of
opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public
body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As
Justice Douglas observed, (w)e are a religious people whose institutions presuppose a Supreme Being. (Zorach c.
Clauson, 343 US 306, 313 [1952])
[219]
(emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were to
attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S.
Congress.
[220]
That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,
[221]
the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion
hardly employed the Lemon test and again relied on history and the fact that the creche had become a neutral
harbinger of the holiday season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and
charitable institutions have been exempt from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,
[222]
the New York City Tax Commissions grant of property
tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to
subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as such; rather, it has granted
exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing influences
in community life and finds this classification useful, desirable, and in the public interest.
[223]

The Court added that the exemption was not establishing religion but sparing the exercise of religion from the burden
of property taxation levied on private profit institutions
[224]
and preventing excessive entanglement between state and
religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the
Courts traditional deference to legislative bodies with respect to the taxing power,viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial
times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious
exercise generally so long as none was favored over others and none suffered interference.
[225]
(emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a
small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings
contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers
(Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the
schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to
require employers to accommodate their employees work schedules to their sabbath observances (Estate of Thornton v.
Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner,
374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to
teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them
science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v.
Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17
[1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay
for state-mandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54
[1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.
[226]

But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract
the prevailing case law regarding particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence
has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the form of
strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the
separationists, strict or tame.
[227]
But the accommodationists have also attracted a number of influential scholars and
jurists.
[228]
The two standards producing two streams of jurisprudence branch out respectively from the history of the
First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and
officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices
age-old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state
separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and
established practice with a flexible reading of the principle.
[229]
The latter also appeals to history in support of its
position, viz:
The opposing school of thought argues that the First Congress intended to allow government support of religion, at
least as long as that support did not discriminate in favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he sponsored
Jeffersons bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of
religious missions to the Indians. . . And so, concludes one recent book, there is no support in the Congressional
records that either the First Congress, which framed the First Amendment, or its principal author and sponsor, James
Madison, intended that Amendment to create a state of complete independence between religion and government. In
fact, the evidence in the public documents goes the other way.
[230]
(emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation,
less than twenty-four hours after Congress adopted the First Amendments prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings enjoyed by
the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and
Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a mimicking of
European customs, where they made a mere mockery of thanksgivings, the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and the
motion was passed without further recorded discussion.
[231]
Thus, accommodationists also go back to the framers to
ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19
th
century and that America was less specifically
Christian during those years than at any other time before or since,
[232]
accommodationaists claim that American
citizens at the time of the Constitutions origins were a remarkably religious people in particularly Christian terms.
[233]

The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of
the wall of separation. The strict separtionist view holds that Jefferson meant the wall of separation to protect the
state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the
rationalism and anticlericalism of that philosophic bent.
[234]
He has often been regarded as espousing Deism or the
rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and
instead adhering to a secular belief in a universal harmony.
[235]
Thus, according to this Jeffersonian view, the
Establishment Clause being meant to protect the state from the church, the states hostility towards religion allows no
interaction between the two.
[236]
In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving
days on the ground that these are religious exercises and the Constitution prohibited the government from
intermeddling with religion.
[237]
This approach erects an absolute barrier to formal interdependence of religion and
state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust
its secular programs to alleviate burdens the programs placed on believers.
[238]
Only the complete separation of religion
from politics would eliminate the formal influence of religious institutions and provide for a free choice among political
views thus a strict wall of separation is necessary.
[239]
Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to
religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists
are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.
[240]

A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the
Court, showing the Courts tendency to press relentlessly towards a more secular society.
[241]
It finds basis in
the Everson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the First
Amendment but at the same time held that the First Amendment requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no
more to be used so as to handicap religions than it is to favor them. (emphasis supplied)
[242]
While the strict neutrality
approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for
purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular
programs to religious belief.
[243]
Professor Kurland wrote,viz:
The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom
and separation clauses should be read as a single precept that government cannot utilize religion as a standard for
action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose
a burden.
[244]

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the
Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects.
[245]

Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of
prayer, spoken or silent, in the public schools as in Engel and Schempp.
[246]
The McCollum case prohibiting optional
religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In
these education cases, the Court refused to uphold the government action as they were based not on a secular but on a
religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in
pursuit of a generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the
First Amendment has not been offended. However, if the strict neutrality standard is applied in interpreting the
Establishment Clause, it could de factovoid religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Schempp, strict neutrality could lead to a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to the religious which is prohibited by the Constitution.
[247]
Professor
Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The
Framers, whatever specific applications they may have intended, clearly envisioned religion as something special; they
enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The
strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Court has rejected
strict neutrality, permitting and sometimes mandating religious classifications.
[248]

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of
separation captures the spirit of the American ideal of church-state separation, in real life church and state are not
and cannot be totally separate.
[249]
This is all the more true in contemporary times when both the government and
religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of
government and religion at many points.
[250]

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which
gives room foraccommodation is buttressed by a different view of the wall of separation associated with Williams,
founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden and the Wilderness, he asserts that to
the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the
state from the church; instead, the wall is meant to protect the church from the state,
[251]
i.e., the garden of the church
must be walled in for its own protection from the wilderness of the world
[252]
with its potential for corrupting those
values so necessary to religious commitment.
[253]
Howe called this the theological or evangelical rationale for
church-state separation while the wall espoused by enlightened statesmen such as Jefferson and Madison, was a
political rationale seeking to protect politics from intrusions by the church.
[254]
But it has been asserted that this
contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles
of religious thinking, not as a conflict between religious and secular (political); the religious style was biblical and
evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its
religious orientation.
[255]

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is
to safeguard religious liberty. Williams view would therefore allow for interaction between church and state, but is
strict with regard to state action which would threaten the integrity of religious commitment.
[256]
His conception of
separation is not total such that it provides basis for certain interactions between church and state dictated by apparent
necessity or practicality.
[257]
This theological view of separation is found in Williams writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the
wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of
necessity be walled in peculiarly unto Himself from the world. . .
[258]

Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will
not tolerate either governmentally established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which
will permit religious exercise to exist without sponsorship and without interference.
[259]
(emphasis supplied)
The Zorach case expressed the doctrine of accommodation,
[260]
viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be
aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday;
so help me God in our courtroom oaths- these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even
object to the supplication with which the Court opens each session: God save the United States and this Honorable
Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as
one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting
the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our
people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious influence.
[261]
(emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the
survival of society itself, thus there is no human society without one or more ways of performing the essential function
of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even
dispensable, for society it is not, which is why there is no human society without one or more ways of performing the
essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and
surrogate religion(s) in their ideology.
[262]
As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites without which society would not
continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist,
as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.
[263]

Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which
modern social scientists would classify as a religionReligion is as much a human universal as language.
[264]

Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as
shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of In God We Trust on American currency, the recognition of America as
one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-honored practice of
opening oral argument with the invocation God save the United States and this honorable Court, and the practice of
Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.
[265]
These practices clearly show the preference for one theological viewpoint -the existence of
and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government
agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of
alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.
[266]
The
persistence of these de facto establishments are in large part explained by the fact that throughout history, the
evangelical theory of separation, i.e., Williams wall, has demanded respect for these de facto establishments.
[267]
But the
separationists have a different explanation. To characterize these as de jure establishments according to the principle of
the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these
practices as de minimis instances of government endorsement or as historic governmental practices that have largely
lost their religious significance or at least have proven not to lead the government into further involvement with
religion.
[268]

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of
religion under certain circumstances. Accommodations are government policies that take religion specifically into
account not to promote the governments favored form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a persons or institutions religion. As Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish.
[269]
(emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, butrespect for the conflict between the temporal and spiritual
authority in which the minority finds itself.
[270]

Accommodation is distinguished from strict neutrality in that the latter holds that government should base
public policy solely on secular considerations, without regard to the religious consequences of its actions. The
debate between accommodation and strict neutrality is at base a question of means: Is the freedom of religion best
achieved when the government is conscious of the effects of its action on the various religious practices of its people,
and seeks to minimize interferences with those practices? Or is it best advanced through a policy of religious
blindness - keeping government aloof from religious practices and issues? An accommodationist holds that it is good
public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid
interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public
policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of
inhibiting religious exercise.
[271]

There are strong and compelling reasons, however, to take the accommodationist position rather than the strict
neutrality position. First, the accommodationist interpretation is most consistent with the language of the First
Amendment. The religion clauses contain two parallel provisions, both specifically directed at religion. The
government may not establish religion and neither may government prohibit it. Taken together, the religion
clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - government
action that promotes the (political) majoritys favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious life
and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the
other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for
religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view
would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by
name for special protection. Second, the accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that freedom to carry out ones duties to a Supreme
Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily
limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right
and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First
Amendment requires more than the religion blindness of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree
of independence for religious entities for them to carry out their religious missions according to their religious
beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian
institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority
religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility
to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views, even in the
absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical
matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances,
the injury to religious conscience is so great and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and
executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this
may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allowsaccommodations prevents needless injury to
the religious consciences of those who can have an influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in the
political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the
various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial
laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages to minors
conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude
Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic
male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to
promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of
the alternative: no exemption or no law.
[272]

Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally
compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not
required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.
[273]
Some Justices of the
Supreme Court have also used the term accommodation to describe government actions that acknowledge or express
prevailing religious sentiments of the community such as display of a religious symbol on public property or the
delivery of a prayer at public ceremonial events.
[274]
Stated otherwise, using benevolent neutrality as a standard could
result to three situations of accommodation: those where accommodation is required, those where it is permissible, and
those where it isprohibited. In the first situation, accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to
the Smith declaration that free exercise exemptions are intentional government advancement, these exemptions
merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The
state must create exceptions to laws of general applicability when these laws threaten religious convictions or practices
in the absence of a compelling state interest.
[275]
By allowing such exemptions, the Free Exercise Clause does not give
believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey
spiritual rather than temporal authority
[276]
for those who seriously invoke the Free Exercise Clause claim to be fulfilling
a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived
from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet
more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. Because
they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to
that which transcends the political order, such denials should be rare and painfully reluctant.
[277]

The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the
Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must accommodate the religious convictions of
Sherbert.
[278]
In these cases of burdensome effect, the modern approach of the Court has been to apply strict scrutiny,
i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens
the religious exercise pursues a particularly important or compelling government goal through the least restrictive
means. If the states objective could be served as well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, such an exemption must be given.
[279]
This approach of the Court on
burdensome effect was only applied since the 1960s. Prior to this time, the Court took the separationist view that as
long as the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs,
the Free Exercise Clause did not pose a hindrance such as in Reynolds.
[280]
In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz
case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to
church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that
(t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause.
[281]
The Court held that New York could have an interest in encouraging
religious values and avoiding threats to those values through the burden of property taxes. Other examples are
theZorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from
public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean
that all claims for free exercise exemptions are valid.
[282]
An example where accommodation was prohibited
is McCollum where the Court ruled against optional religious instruction in the public school premises.
[283]
In effect, the
last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden
shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some important
(or compelling) secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff
meets this burden and the government does not, the plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimants beliefs must be sincere, but they need not necessarily be consistent,
coherent, clearly articulated, or congruent with those of the claimants religious denomination. Only beliefs rooted in
religion are protected by the Free Exercise Clause; secular beliefs, however sincere and conscientious, do not suffice.
[284]

In other words, a three-step process (also referred to as the two-step balancing process supra when the second and
third steps are combined) as in Sherbert is followed in weighing the states interest and religious freedom when these
collide. Three questions are answered in this process. First, (h)as the statute or government action created a burden
on the free exercise of religion? The courts often look into the sincerity of the religious belief, but without inquiring
into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim of religious beliefs
to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has considered historical evidence
as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and
tenth grades in public high schools. In another case, Dobkin v. District of Columbia,
[285]
the Court denied the claim of
a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There
might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only
in the particular case.
[286]
Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them
not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish peoples convictions against becoming involved in public high schools were
central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday
work was a cardinal principle.
[287]
Professor Lupu puts to task the person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant religious practice must be demonstrated. Religious
command should outweigh custom, individual conscience should count for more than personal convenience, and
theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and
longevity of practice - both by the individual and within the individuals religious tradition - reinforces sincerity. Most
importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the
intensity and scope of fundamentalist creed.
[288]

Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of religious
liberty? In this step, the government has to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined if exemptions are granted.
[289]
The person claiming
religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e.,
weighing the interest of the state against religious liberty to determine which is more compelling under the particular
set of facts. The greater the states interests, the more central the religious belief would have to be to overcome it. In
assessing the state interest, the court will have to determine the importance of the secular interest and the extent to
which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly
compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the
exemption.
[290]

Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive means possible
so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?
[291]
The
analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious
liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it
was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As
a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both
religious and regulatory, to achieve refined judgment.
[292]

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and
religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the
evolving views of a dynamic society.
[293]

VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a
union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil
authorities exercised religious functions and the friars exercised civil powers.
[294]
Catholics alone enjoyed the right of
engaging in public ceremonies of worship.
[295]
Although the Spanish Constitution itself was not extended to the
Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact
protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six
of the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state religion.
[296]
The
coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime,
the unique American experiment of separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898,
the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that the
inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise
of religion.
[297]
Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon
the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that
the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as the separation of
the Church and State. But the Malolos Constitution and government was short-lived as the Americans took over the
reigns of government.
[298]

With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine
Commission, the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed
religious freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the
free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be
allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen
of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his
calling.
[299]

This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared
that (t)he separation between State and Church shall be real, entire and absolute.
[300]

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the
religious freedom clause in theInstructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free
exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,
[301]
the Court stated that the Philippine Bill of 1902 caused the complete separation of church and
state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular
religious sect.
[302]

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money
or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the
free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be
allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property
shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed
independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed
that (a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be
molested in person or property on account of religious belief or mode of worship.
[303]

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose
P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of December
10, 1898, which first introduced religious toleration in our country. President McKinleys Instructions to the Second
Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the
Jones Law.
[304]
In accordance with the Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by the Convention.
[305]
In his speech as Chairman
of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the
Jones Law were avoided whenever possible because the principles must remain couched in a language expressive of
their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and
jurists that vitalized them.
[306]

The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on
religious freedom in the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church and state
shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987
Constitution under the Bill of Rights in Article III, Section 5.
[307]
Likewise, the provision on separation of church and
state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to
U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these
cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation -
separation and benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most
part, benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of
religion. Religion is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely
referring to a bond between man and the gods.
[308]
This pre-Christian term for the cult and rituals of pagan Rome was
first Christianized in the Latin translation of the Bible.
[309]
While the U.S. Supreme Court has had to take up the
challenge of defining the parameters and contours of religion to determine whether a non-theistic belief or act is
covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence,
religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case
of Aglipay v. Ruiz
[310]
involving the Establishment Clause, defined religion as a profession of faith to an active
power that binds and elevates man to his Creator. Twenty years later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,
[311]
a case involving the Free Exercise clause. The latter also cited the
American case of Davis in defining religion, viz: (i)t has reference to ones views of his relations to His Creator and to
the obligations they impose of reverence to His being and character and obedience to His Will. The Beason definition,
however, has been expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause principally guarantees
voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of
religious groups on their intrinsic merits and not on the support of the state.
[312]

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v.
Secretary of Education
[313]
is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.
[314]

The difficulty in interpretation sets in when belief is externalized into speech and action.
Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society
case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary
corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of
Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the citys ordinances. Plaintiff argued that this amounted to religious
censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of
bibles and other religious literature to the people of the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the
right to disseminate religious information. Any restraint of such right can only be justified like other restraints of
freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State
has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4
th
ed., p. 297) (emphasis
supplied)
This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the religious
freedom area, and in Philippine jurisprudence, for that matter.
[315]
The case did not clearly show, however, whether
the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the
government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other
secular value protected by government, or whether there was danger but it could not be characterized as clear and
present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to
apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not
engaged in the business or occupation of selling said merchandise for profit. To add, the Court, citing Murdock v.
Pennsylvania,
[316]
ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs as the
power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Thus, inAmerican Bible
Society, the clear and present danger rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,
[317]
also involving the sale of religious books, the Court
distinguished theAmerican Bible Society case from the facts and issues in Tolentino and did not apply the American
Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of
the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee
was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of
religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration
which was a central feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of Equalization,
[318]
the
Court also declared prefatorily that the Free Exercise of Religion Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of religious materials by a religious organization. In the Courts resolution of
the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused
by the tax was just similar to any other economic imposition that might make the right to disseminate religious
doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,
[319]
this time
involving conductexpressive of religious belief colliding with a rule prescribed in accordance with law. In this case,
petitioners were members of the Jehovahs Witnesses. They challenged a Department Order issued by the Secretary of
Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In
violation of the Order, petitioners children refused to salute the Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the
same is contrary to their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former
must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the one
exercising it. (emphasis supplied)
[320]

The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs
of the petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It
cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual
or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in
all sincerity and good faith, may want to give to such ritual or ceremony.
[321]

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing
objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the
glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioners children,
stressing that:
Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws,
even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national
unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally
interested, for to them, they mean national existence and survival as a nation or national extinction.
[322]

In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.
[323]

It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-
compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority.
[324]

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to
determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the
established institutions of society and with the law such that when a law of general applicability (in this case the
Department Order) incidentally burdens the exercise of ones religion, ones right to religious freedom cannot
justify exemption from compliance with the law. The Gerona ruling was reiterated inBalbuna, et al. v. Secretary of
Education, et al.
[325]

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.
[326]
In this
unanimously decided en banccase, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its
members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde
Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing
closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and
coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their
members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The
union notified the company of Victorianos resignation, which in turn notified Victoriano that unless he could make a
satisfactory arrangement with the union, the company would be constrained to dismiss him from the
service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the
injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment
Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S.
147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights,
therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that infringement of religious freedom may be justified,
and only to the smallest extent necessary.
[327]
(emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free
exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of
one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state
regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the
states secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct.
144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)
[328]
(emphasis supplied)
Quoting Aglipay v. Ruiz,
[329]
the Court held that government is not precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to a religion or sect. It also cited Board of
Education v. Allen,
[330]
which held that in order to withstand the strictures of constitutional prohibition, a statute must
have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria
in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free
exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of
their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security
agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious
sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against
the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious
beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.
[331]

The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects that
prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and
indirect.
[332]
In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain persons
of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest
intervenes. The Court then abruptly added that (i)n the instant case, We see no compelling state interest to withhold
exemption.
[333]

A close look at Victoriano would show that the Court mentioned several tests in determining when religious
freedom may be validly limited. First, the Court mentioned the test of immediate and grave danger to the security and
welfare of the community and infringement of religious freedom only to the smallest extent necessary to justify
limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for
its purpose and effect the advancement of the states secular goals, provided that there is no other means by which the
state can accomplish this purpose without imposing such burden. Third, the Court referred to the compelling state
interest test which grants exemptions when general laws conflict with religious exercise, unless a compelling state
interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the
importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious
freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the
Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but
were not applied by the Court to the facts and issues of the case. The third, the compelling state interest test was
employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no compelling state interest to strike it
down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the
inevitable conclusion is that the compelling state interest test was not appropriate and could not find application in
the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming
unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government
agency, who propounded the state interest to justify overriding Sherberts claim of religious freedom. The U.S.
Supreme Court, considering Sherberts and the Commissions arguments, found that the state interest was not
sufficiently compelling to prevail over Sherberts free exercise claim. This situation did not obtain in the Victoriano
case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to
allow Victorianos exercise of religion. Thus, the government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the
questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum,
although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free
Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera
de la Industria Tabaquera y Otros Trabajadores de Filipinas,
[334]
Anucension v. National Labor Union, et
al.,
[335]
and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.
[336]

Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking
to St. Jude Church within the Malacanang security area to pray for an end to violence when they were barred by the
police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition
for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The
slim majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they
were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court
distinguished between freedom to believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute,
but in the nature of things, the second cannot be.
[337]

The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but
only in the manner by which they had attempted to translate the same to action. This curtailment is in accord with
the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield
and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one
exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth functioning of
the executive branch of the government, which petitioners mass action would certainly disrupt
[338]
and denied the
petition. Thus, without considering the tests mentioned inVictoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test
in religious freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v.
Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom
of worship, alongside with freedom of expression and speech and peaceable assembly along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that
on the judiciary - even more so than on the other departments - rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense
with what has been so felicitously termed by Justice Holmes as the sovereign prerogative of judgment. Nonetheless,
the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do
precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent
punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a
character both grave and imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).
[339]
(emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the rights
to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by
retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and
rally from the Luneta to the gates of the U.S. Embassy. NeverthelessBagatsing was used by Justice Teehankee in his
dissent which had overtones of petitioner German and his companions right to assemble and petition the government
for redress of grievances.
[340]

In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the Court
in Ebralinag v. The Division Superintendent of Schools.
[341]
A unanimous Court overturned the Gerona ruling after
three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the grave
and imminent danger test laid down in Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief
Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of
a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from the schools is not justified.
[342]
(emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national anthem
and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the school
population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated in and
unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes (Gerona v.
Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the democratic way of life and form of
government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation
or profession and be taught the virtues of patriotism, respect for human rights, appreciation of national heroes, the
rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this
Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted
authorities.
[343]

Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and
loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).
[344]

Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state interest
test in according exemption to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia
ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate
the teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes.
(Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others.
[345]

The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting opinion in German which involved prior
restraint of religious worship with overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience of
the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech
and the free exercise of religious profession and worship; the Court then stated in a footnote that the flag salute,
singing the national anthem and reciting the patriotic pledge are all forms of utterances.
[346]

The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals
consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was
that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant
exemption of the school children of the Jehovahs Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions.
[347]
The Court, however, referred to the test only towards the end of the decision
and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court
explain why the interest was not sufficiently compelling to override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et
al.
[348]
Although there was a dissent with respect to the applicability of the clear and present danger test in this case,
the majority opinion in unequivocal terms applied the clear and present danger test to religious speech. This case
involved the television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner Iglesia ni
Cristos submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and
Television classified these as X or not for public viewing on the ground that they offend and constitute an attack
against other religions which is expressly prohibited by law. Invoking religious freedom, petitioner alleged that the
Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its
television program and x-rating them. While upholding the Boards power to review the Iglesia television show,
the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz commentary on the
constitution, the Court held that freedom to believe is absolute but freedom to act on ones belief, where it affects the
public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent in Barnette which
was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated disabilities, it did not create
new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma,
not freedom from conformity to law because of religious dogma.
[349]
Nevertheless, the Court was quick to add the
criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the
clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to
the more overriding interest of public health, public morals, or public welfare.
[350]

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on
speech, including religious speech and the x-rating was a suppression of petitioners freedom of speech as much as it
was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different
religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from
protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid down in the American Bible
Society case and the test of immediate and grave danger with infringement only to the smallest extent necessary to
avoid danger in Victoriano and pointed out that the reviewing board failed to apply the clear and present danger
test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on
ground.
Replying to the challenge on the applicability of the clear and present danger test to the case, the Court
acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of
speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt
and release of information that endangers a fair trial
[351]
and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the
case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It
cannot be doubted that religious truths disturb and disturb terribly.
[352]

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to
seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated the clear and
present danger test in American Bible Societyand the grave and imminent danger in Victoriano, but this time
clearly justifying its applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious
freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is
justified.
[353]

2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the
Establishment Clause, namely, voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the
inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the
religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled
religion is a contradiction in terms.
[354]
As a social value, it means that the growth of a religious sect as a social force
must come from the voluntary support of its members because of the belief that both spiritual and secular society will
benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such
voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated
from politics.
[355]
Non-establishment thus calls for government neutrality in religious matters to uphold
voluntarism and avoid breeding interfaith dissension.
[356]

The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In
the 1937 case ofAglipay v. Ruiz,
[357]
the Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that
the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that
the Director of Posts issued the questioned stamps under the provisions of Act No. 4052
[358]
which appropriated a sum
for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose
of the sum in a manner and frequency advantageous to the Government. The printing and issuance of the postage
stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court,
took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional
infirmity in the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the
necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history,
not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for
occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of
their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil
freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend
the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its
inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is
religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and
is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of
morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their
Constitution, implored the aid of Divine Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves
and their posterity the blessings of independence under a regime of justice, liberty and democracy, they thereby
manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and denominations. . .
[359]

xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an
event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the
aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its
activities simply because of incidental results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep.,
121; 44 Law. ed., 168)
[360]
(emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action
with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular
religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.
[361]
Although the Court found that the separation of
church and state was not at issue as the controversy was over who should have custody of a saints image, it
nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay
ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiestaand having a patron saint for
the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an ingrained tradition in rural communities that relieves the monotony
and drudgery of the lives of the masses. Corollarily, the Court found nothing illegal about any activity intended to
facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained
through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was purchased
in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the
purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio
residents. Citing theAglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public funds and which has some religious tint is
violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the
use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.
[362]
which presented a novel issue involving the religion
clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply
divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional,
approached the problem from a free exercise perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and
Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: The challenged Administrative Code provision,
certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with
the religious freedom guaranteed by the Constitution. CitingTorcaso v. Watkins,
[363]
the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the
validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be required as a
disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God
***. Such a constitutional requirement was assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not
declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court,
which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black:
this Maryland religious test for public office unconstitutionally invades the appellants freedom of belief and religion
and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an
ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an
incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional
mandate.
[364]

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo,
Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a
safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar
stated: To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the
principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of
religion which the constitutional provision seeks to enforce and protect. Consequently, the Court upheld the validity
of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal
mayor.
Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v.
Court of Appeals
[365]
is the leading case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate
bishop of the church. The Court cited American Jurisprudence,
[366]
viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict
with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts
the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have
subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. .
.
[367]

The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected
head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, citing Watson v.
Jones,
[368]
declared that the rule in property controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such
controversies should be those of any voluntary association. If the congregation adopts the majority rule then the
majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should
be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged
by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church
and having reference to the power of excluding from the church those allegedly unworthy of membership, are
unquestionably ecclesiastical matters which are outside the province of the civil courts.
[369]

VIII. Free Exercise Clause vis--vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause
and the Establishment Clause in their application. There is a natural antagonism between a command not to establish
religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with
a choice between competing values in religion cases.
[370]

One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free
Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the
religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government
positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to
the Establishment Clause in stating that the principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions
from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question
arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This
was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in South
Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does
not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to
forestall.
[371]
(emphasis supplied)
Tension also exists when a law of general application provides exemption in order to uphold free exercise as in
the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him
to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was
not a case of establishing religion but merely upholding the Free Exercise Clause by sparing the exercise of religion
from the burden of property taxation levied on private profit institutions. Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute
terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.
[372]

Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious
sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional
provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union
security agreements.
[373]
(emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless
upholds it. In Schempp, Justice Brennan stated: (t)here are certain practices, conceivably violative of the Establishment
Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First
Amendment.
How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for
determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free
Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts
and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment
Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an
edge not only because of abundant historical evidence in the colonial and early national period of the United States that
the free exercise principle long antedated any broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a citizens free exercise of religion seems far less
dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in
cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in
that case cannot be freely exercised.
[374]
American professor of constitutional law, Laurence Tribe, similarly suggests
that the free exercise principle should be dominant in any conflict with the anti-establishment principle. This
dominance would be the result of commitment to religious tolerance instead of thwarting at all costs even the faintest
appearance of establishment.
[375]
In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the
religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that
reaches a variety of areas of human conduct and an expanding concept of religion. To adequately meet the demands of
this modern society, the societal values the religion clauses are intended to protect must be considered in their
interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court.
[376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the
First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every
organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention
adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the
First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court
decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce
then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions
and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams
of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause
jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and
later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to
borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of
U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the
disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes
before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have
U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in
light of the Philippine religion clauses history. As a result, in a case where the party claims religious liberty in the face
of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing
the Court that the wall of separation would not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions
on religion in all three constitutions. It is a cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that
will give to all of them full force and effect.
[377]
From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution.
[378]

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935
Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI,
Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements
used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar
exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine
government during the Commonwealth period.
[379]
The original draft of the Constitution placed this provision in an
ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-
McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that if churches,
convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such
[religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from
taxation.
[380]
The amendment was readily approved with 83 affirmative votes against 15 negative votes.
[381]

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case
of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating
that church property was not singled out but was exempt along with property owned by non-profit, quasi-public
corporations because the state upheld the secular policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and in the public interest. The Court also
stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same
time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a
long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in
the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated
in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious
liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support
of any priest, preacher, ministers or other religious teacher or dignitary as such,except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. (emphasis
supplied)
The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain
the above exception, viz:
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or
support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support
of any priest, preacher, minister, or dignitary as such
[382]

In the deliberations of this draft provision, an amendment was proposed to strike down everything after church
denomination.
[383]
The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under
the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from
public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the
Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its
validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not
contain a prohibition on appropriations similar to the Jones Law.
[384]
To settle the question on the constitutionality of
payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with compensation, the exception in the 1935
provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.
[385]
As
pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme
Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas
payment of prison chaplains salaries as reasonably necessary to permit inmates to practice their religion. Also, in
the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with
prayers offered by legislative chaplains retained at taxpayers expense. The constitutional provision exempting
religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S.
Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the provision at the same time gives constitutional
sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause,
the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established in the town where a public school is
situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in
the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor
in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in
public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation
of the principle of separation of church and state and the prohibition against the use of public funds for religious
purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code
and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that
religious instruction was not and would not be a source of religious discord in the schools.
[386]
The third wanted religion
to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of
their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional
stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of
separation of church and state.
[387]
As in the provisions on church property tax exemption and compensation of
religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in
public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious
instruction where the religion teachers would conduct class within the school premises. The constitutional provision on
optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality approach which does not
allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid of
Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution. A preamble is a key to open the mind of the authors of the constitution as to the evil sought to be
prevented and the objects sought to be accomplished by the provisions thereof.
[388]
There was no debate on the
inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people
implored the aid of Divine Providence, (t)hey thereby manifested their intense religious nature and placed unfaltering
reliance upon Him who guides the destinies of men and nations.
[389]
The 1935 Constitutions religion clauses,
understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but
benevolence, to religion.
[390]

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of
the 1935 Constitution on exemption of church property from taxation, with the modification that the property should
not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious
officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on
optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification
that optional religious instruction shall be conducted as may be provided by law and not as now authorized by law
as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious
instruction in public elementary and high schools shall be done (a)t the option expressed in writing by the parents or
guardians, and without cost to them and the government. With the adoption of these provisions in the 1973
Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of
the General Provisions of the 1973 Constitution this provision made its maiden appearance: (t)he separation of church
and state shall be inviolable. The 1973 Constitution retained the portion of the preamble imploring the aid of Divine
Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and
State of the 1971 Constitutional Convention, the question arose as to whether the absolute separation of Church and
State as enunciated in the Everson caseand reiterated in Schempp - i.e., neutrality not only as between one religion and
another but even as between religion and non-religion - is embodied in the Philippine Constitution. The sub-
committees answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the elevating
influence of religion in human society and the Filipinos imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally
or the cause of religion in general.
[391]
Among the position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein
that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates
religious values.
[392]
Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent
neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions
of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution
even in the absence of a similar provision.
[393]

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was
retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to
the prohibition on the use of public money and property for religious purposes and the salaries of religious officers
serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani,
however, probed into the possibility of allowing the government to spend public money for purposes which might have
religious connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo
explained that if a public expenditure would benefit the government directly, such expense would be constitutional
even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his
proposal.
[394]

The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section
3(3) with the modification that it was expressly provided that optional instruction shall be conducted within the
regular class hours and without additional cost to the government. There were protracted debates on what
additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity,
janitorial services,
[395]
and when during the day instruction would be conducted.
[396]
In deliberating on the phrase
within the regular class hours, Commissioner Aquino expressed her reservations to this proposal as this would
violate the time-honored principle of separation of church and state. She cited the McCullom case where religious
instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the
most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court
allowed only release time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the rule on non-establishment of
religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we
could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something
here which is contrary to American practices.
[397]
(emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but placed under the Principles in the Declaration
of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas
stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is inviolable, is
almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there,
because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the statement of
separation of church and state but on the non-establishment clause in the Bill of Rights.
[398]

The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was
considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional
Convention objected to reference to a personal God.
[399]
God of History, Lord of History and God were also
proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the
1987 Constitution is not hostile nor indifferent to religion;
[400]
its wall of separation is not a wall of hostility or
indifference.
[401]

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious
officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the
Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation
between the church and state.
[402]
The strict neutrality approach which examines only whether government action is for
a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent
neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of
government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it
acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might
adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent
neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows
these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion
clauses. The case at bar involves this first type ofaccommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does
mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that
it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will
not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception
when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed.
[403]
We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious liberty not only for a
minority, however small- not only for a majority, however large- but for each of us to the greatest extent possible
within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine
jurisprudence, albeit not expressly called benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but acknowledged the Constitutional provisions on
exemption from tax of church property, salary of religious officers in government institutions, and optional religious
instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week,
Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions
indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government
participation in long-standing traditions which have acquired a social character - the barrio fiesta is a socio-religious
affair - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop
provisions of members of religious sects who prohibited their members from joining unions upon the justification that
the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise
of religion. InEbralinag, members of the Jehovahs Witnesses were exempt from saluting the flag as required by law,
on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment
Clause.
While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has
departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine
religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus,
the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme
Court in Everson.
[404]
While the religion clauses are a unique American experiment which understandably came about
as a result of Americas English background and colonization, the life that these clauses have taken in this jurisdiction is
the Philippines own experiment, reflective of the Filipinos own national soul, history and tradition. After all, the life
of the law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent
neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of
the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between
permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to
exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment
anarchy, eventually destroying the very state its members established to protect their freedoms. The very purpose of
the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give
up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the
intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the
constitutional order that guarantees free exercise.
[405]

The all important question then is the test that should be used in ascertaining the limits of the exercise of religious
freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the Court mentioned the clear and present danger test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the immediate and grave danger test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the least restrictive means to accomplish
the goal of the law. The case also used, albeit inappropriately, the compelling state interest test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the grave and immediate danger test and overruled
the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the clear and present danger test in the
maiden case of American Bible Society. Not surprisingly, all the cases which employed the clear and present
danger or grave and immediate danger test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that religious
freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority
cited by Germanhas been overruled by Ebralinag which employed the grave and immediate danger
test. Victoriano was the only case that employed the compelling state interest test, but as explained previously, the
use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the
clear and present danger and grave and immediate danger tests were appropriate as speech has easily discernible
or immediate effects. The Gerona andGerman doctrine, aside from having been overruled, is not congruent with
the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case
involves purely conduct arising from religious belief. The compelling state interest test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the states interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - the most inalienable and sacred of all human rights, in the words of
Jefferson.
[406]
This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon an acknowledgment of such higher
sovereignty,
[407]
thus the Filipinos implore the aid of Almighty God in order to build a just and humane society and
establish a government. As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore
not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state
to batter religion, especially the less powerful ones until they are destroyed.
[408]
In determining which shall prevail
between the states interest and religious liberty, reasonableness shall be the guide.
[409]
The compelling state interest
serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests
of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the compelling state interest test, by upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of
disgraceful and immoral conduct for which he/she may be held administratively liable.
[410]
In these cases, there was
not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves did not foist the
defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or
have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo
[411]
and the 1999 case of Maguad v.
De Guzman,
[412]
are similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not
registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the
community in which the respondent and the partner live and work, and the government employee is capacitated to
marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government
employees administratively liable for disgraceful and immoral conduct and only considered the foregoing
circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is
held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards
leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we
find no reason to deviate from these rulings that such illicit relationship constitutes disgraceful and immoral conduct
punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively liable. However, there is a distinguishing factor
that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since
her religion, the Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal arrangement with
Quilapio based on the churchs religious beliefs and practices. This distinguishing factor compels the Court to apply
the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme.
Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on
the religion clauses in deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality
beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding what it
means to live morally.
[413]
The answer to the question of how we ought to live necessarily considers that man does not
live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only
of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are
their morals; they constitute the public morality. Each member of society has ideas about what is good and what is
evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they will fail; if
having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is
kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift
apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which
needs society, must pay its price.
[414]
This design is parallel with the social contract in the realm of politics: people give
up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people
make a fundamental agreement about the powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement
such as by revolution destroys the old order and creates a new one.
[415]
Similarly, in the realm of morality, the
breakdown of the fundamental agreement about the manner a societys members should behave and govern their lives
would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to
preserve its government and other essential institutions.
[416]
From these propositions of Devlin, one cannot conclude
that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should
nevertheless be a fundamental agreement about good and evil that will govern how people in a society ought to
live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for
change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in establishing and maintaining their society,
and these fundamental values and principles are translated into legislation that governs the order of society, laws that
may be amended from time to time. Harts argument propounded in Mr. Justice Vitugs separate opinion that,
Devlins view of people living in a single society as having common moral foundation (is) overly simplistic because
societies have always been diverse fails to recognize the necessity of Devlins proposition in a democracy. Without
fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the
existence and progress of society.
In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public
square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for
public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance.
[417]
Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups.
[418]
Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies --
including protection of religious freedom not only for a minority, however small- not only for a majority, however
large- but for each of us -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.
[419]
In the realm of religious exercise, benevolent
neutrality that gives room foraccommodation carries out this promise, provided the compelling interests of the state
are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is
why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized
for it blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness and
deposit of our moral life.
[420]
In a liberal democracy, the law reflects social morality over a period of
time.
[421]
Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with
public morality or legislature might fail to repeal laws embodying outdated traditional moral views.
[422]
Law has also
been defined as something men create in their best moments to protect themselves in their worst moments.
[423]
Even
then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal
to better reflect the public morals of a society at a given time. After all, the life of the law...has been experience, in the
words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards
of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole
object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be
called a morally upright person.
[424]
Law also serves as a helpful starting point for thinking about a proper or ideal
public morality for a society
[425]
in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,
[426]
we articulated the relationship between law and public morality. We
held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral,i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent
that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which
we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in
reality the amount of punishment.
[427]
Stated otherwise, there are certain standards of behavior or moral principles
which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only
against the person injured but against society as a whole.
[428]
Thus, even if all involved in the misdeed are consenting
parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral
order.
[429]
Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral
acts which appear private and not harmful to society such as sexual congress between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country. His opinion asks whether
these laws on private morality are justified or they constitute impingement on ones freedom of belief. Discussion on
private morality, however, is not material to the case at bar for whether respondents conduct, which constitutes
concubinage,
[430]
is private in the sense that there is no injured party or the offended spouse consents to the
concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The
legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not
being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal
spouse, does not alter or negate the crime unlike in rape
[431]
where consent of the supposed victim negates the crime. If
at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,
[432]
but does
not alter the legislatures characterization of the act as a moral disapprobation punishable by law. The separate opinion
states that, (t)he ponencia has taken pains to distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only concern itself with secular morality. The
Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and
discussed by the separate opinion, between secular and private morality, but between public and secular morality on
the one hand, and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality
in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not
punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human
Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles
19 and 21 provide, viz:
Art. 19. Any 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.
xxx xxx xxx
Art. 21. 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. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate
legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is
that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written
with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of
justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected
that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its
ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into
legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative
attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with
impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying
the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford
him protection or relief.
A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.
[433]
(emphases
supplied)
The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses
prohibit the state from establishing a religion, including the morality it sanctions. Religious morality proceeds from a
persons views of his relations to His Creator and to the obligations they impose of reverence to His being and
character and obedience to His Will, in accordance with this Courts definition of religion in American Bible
Society citing Davis. Religion also dictates how we ought to live for the nature of religion is not just to know, but
often, to act in accordance with mans views of his relations to His Creator.
[434]
But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative
establishment of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is
the price of ending the war of all sects against all; the establishment of a secular public moral order is the social
contract produced by religious truce.
[435]

Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional
Responsibility for lawyers
[436]
, or public morals in the Revised Penal Code,
[437]
or morals in the New Civil
Code,
[438]
or moral character in the Constitution,
[439]
the distinction between public and secular morality on the one
hand, and religious morality, on the other, should be kept in mind.
[440]
The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in
secular terms.
[441]
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a result, government will not provide full religious freedom
for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive
religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon
religious justification is inconsistent with this policy of neutrality.
[442]

In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is detrimental
(or dangerous) to those conditions upon which depend the existence and progress of human society and not because
the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate
the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
[443]
Succinctly
put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable
and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an
apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the
law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where
the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious
nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitutions religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must
pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in deciding
the case at bar, the approach should consider that, (a)s a rule . . . moral laws are justified only to the extent that they
directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would
serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a
departure be justified. In religion clause parlance, the separate opinion holds that laws of general applicability
governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict
application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes
of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in
a benevolent neutrality framework, anaccommodation of the unconventional religious belief and practice (which the
separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same
secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate
opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous
marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and
evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a
similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding
marriage.
The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one
hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood only in this
realm where it has authority. More concretely, should the Court declare respondents conduct as immoral and hold her
administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or
there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm,
she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be
made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her
immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should
the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public
morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality
thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are
correct nor that other churches which do not allow respondents conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not
answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to
say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly,
inFonacier, this Court declared that matters dealing with faith, practice, doctrine, form of worship, ecclesiastical law,
custom and rule of a churchare unquestionably ecclesiastical matters which are outside the province of the civil
courts.
[444]
But while the state, including the Court, accords such deference to religious belief and exercise which enjoy
protection under the religious clauses, the social contract and the constitutional order are designed in such a way that
when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular
and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of
belief insofar as they affect the interests of the state. The states inroad on religion exercise in excess of this
constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated
above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase disgraceful and immoral
conduct for which a government employee may be held administratively liable. The line is not easy to draw for it is
like a line that divides land and sea, a coastline of irregularities and indentations.
[445]
But the case at bar does not
require us to comprehensively delineate between those immoral acts for which one may be held administratively liable
and those to which administrative liability does not attach. We need not concern ourselves in this case therefore
whether laziness, gluttony, vanity, selfishness, avarice and cowardice are immoral acts which constitute grounds for
administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral
acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is
certainly a fallacious argument that because there are exceptions to the general rule that the law is the witness and
deposit of our moral life, then the rule is not true; in fact, that there are exceptions only affirms the truth of the
rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is
morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are
certain moral absolutes such as respect for life and truth-telling, without which no society will survive. Only one
conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is
legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court
inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice Ynares-Santiago groped
for standards of morality and stated that the ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards but did not articulate how these standards are to be ascertained. Instead, it held
that, (f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered. It
identified the Civil Service Law and the laws on adultery and concubinage as laws which respondents conduct has
offended and cited a string of precedents where a government employee was found guilty of committing a disgraceful
and immoral conduct for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute
that under settled jurisprudence, respondents conduct constitutes disgraceful and immoral conduct. However, the
cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar
invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States
[446]
in laying down the standard of
morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined by respondents
concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did
in fact perform, the act which it condemns. The Mann Act under consideration in the Cleveland case declares as an
offense the transportation in interstate commerce of any woman or girl for the purpose of prostitution or debauchery,
or for any other immoral purpose.
[447]
The resolution of that case hinged on the interpretation of the phrase immoral
purpose. The U.S. Supreme Court held that the petitioner Mormons act of transporting at least one plural wife
whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in
such a project, was covered by the phrase immoral purpose. In so ruling, the Court relied on Reynolds which held
that the Mormons practice of polygamy, in spite of their defense of religious freedom, was odious among the northern
and western nations of Europe,
[448]
a return to barbarism,
[449]
contrary to the spirit of Christianity and of the
civilization which Christianity has produced in the Western world,
[450]
and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the
U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the Philippines where
Muslims, by law, are allowed to practice polygamy. Unlike inCleveland, there is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore that her conduct is likewise so odious and barbaric as to be immoral and punishable
by law.
While positing the view that the resolution of the case at bar lies more on determining the applicable moral
standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents
plea of religious freedom and disposed of this defense by stating that (a) clear and present danger of a substantive evil,
destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious
profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public
morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in the
judiciary. However, the foregoing discussion has shown that the clear and present danger test that is usually
employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious
conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of disgraceful and
immoral conduct. The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the
approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the constitutional
intent of employingbenevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that
respondent should be held administratively liable not for disgraceful and immoral conduct but conduct prejudicial
to the best interest of the service as she is a necessary co-accused of her partner in concubinage. The dissent stresses
that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the
dissent offends due process as respondent was not given an opportunity to defend herself against the charge of
conduct prejudicial to the best interest of the service. In addition, there is no evidence of the alleged prejudice to the
best interest of the service. Most importantly, the dissent concludes that respondents plea of religious freedom cannot
prevail without so much as employing a test that would balance respondents religious freedom and the states interest
at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that
with benevolent neutrality as a framework, the Court cannot simply reject respondents plea of religious freedom
without even subjecting it to the compelling state interest test that would balance her freedom with the paramount
interests of the state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu
decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not
contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik
[451]
cited in Mr. Justice
Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of
immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had
three children because it (was) not immoral by Muslim standards for Judge Malik to marry a second time while his
first marriage (existed). Putting the quoted portion in its proper context would readily show that the Sulu Islamic
case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the
Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a person married x x x under
Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry a second time while his first marriage
exists.
[452]
It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of
bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not
determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting
the challenged Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim
standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating
respondents conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the
Free Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the respondents claim of religious freedom to
the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a
more compelling state interest.
In applying the test, the first inquiry is whether respondents right to religious freedom has been
burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and keeping her religious practice and family on
the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherberts religious
exercise was burdened as the denial of unemployment benefits forces her to choose between following the precepts of
her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand. The burden on respondent in the case at bar is even greater as the price she has to pay
for her employment is not only her religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be sincere
in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to avoid
punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral
standards are strict and defined, much less only after an administrative case for immorality was filed against her. The
Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten
years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovahs
Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers
testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the union
of their members under respondents circumstances honorable before God and men. It is also worthy of notice that
the Report and Recommendation of the investigating judge annexed letters
[453]
of the OCA to the respondent regarding
her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance
in the flag ceremony. The OCAs letters were not submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had different positions regarding respondents
request for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and
practice. Respondents request for exemption from the flag ceremony shows her sincerity in practicing the Jehovahs
Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovahs
Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the
government, thru the Solicitor General, want to further question the respondents sincerity and the centrality of her
practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case
at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondents evidence on the sincerity of her religious belief
and its centrality in her faith, the case at bar cannot still be decided using the compelling state interest test. The
case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in
the Courts use of the compelling state interest test. We note that the OCA found respondents defense of religious
freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel
who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the
exacting standards of morality and decency in their professional and private conduct in order to preserve the good
name and integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation of the
integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is
nothing in the OCAs memorandum to the Court that demonstrates how this interest is so compelling that it should
override respondents plea of religious freedom nor is it shown that the means employed by the government in
pursuing its interest is the least restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of
the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of
the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to
demonstrate the compelling state interest it seeks to uphold in opposing the respondents stance that her conjugal
arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court
prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Courts action would be an
unconstitutional encroachment of her right to religious freedom.
[454]
We cannot therefore simply take a passing look at
respondents claim of religious freedom, but must instead apply the compelling state interest test. The government
must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the states
compelling interest which can override respondents religious belief and practice. To repeat, this is a case of first
impression where we are applying the compelling state interest test in a case involving purely religious conduct. The
careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life
of the respondent who stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is
ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to
override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30) days
from the Office of the Court Administrators receipt of this Decision.
SO ORDERED.
CASE DIGEST:
FACTS:
Complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., requesting for an investigation of rumors that
respondent Soledad Escritor, court interpreter, is living with a man not her husband. They allegedly have a child of
eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner. Nevertheless, he filed the
charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus
she should not be allowed to remain employed therein as it might appear that the court condones her act.
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband having
died in 1998. She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty
years and that they have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch
Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten
years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation.
ISSUE:
Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct."
HELD:
Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time
strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests. It still remains to be seen if respondent is entitled to
such doctrine as the state has not been afforded the chance has demonstrate the compelling state interest of prohibiting
the act of respondent, thus the case is remanded to the RTC.

Benevolent neutrality is inconsistent with the Free Exercise Clause as far as it prohibits such exercise given a compelling
state interest. It is the respondents stance that the respondents conjugal arrangement is not immoral and punishable as
it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is
protected by the Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her right to
religious freedom. The Court cannot therefore simply take a passing look at respondents claim of religious freedom,
but must instead apply the compelling state interest test. The government must be heard on the issue as it has not
been given an opportunity to discharge its burden of demonstrating the states compelling interest which can override
respondents religious belief and practice.
ESTRADA VS ESCRITOR (JUNE 22, 2006)
EN BANC

ALEJANDRO ESTRADA, A.M. No. P-02-1651
Complainant, (formerly OCA I.P.I. No. 00-1021-P)
Present:
PANGANIBAN, CJ.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus- CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.

Promulgated:

SOLEDAD S. ESCRITOR,
Respondent. June 22, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands
before the Court invoking her religious freedom and her Jehovah God in a bid to save her family united without the
benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its power to regulate her
behavior and protect its interest in marriage and family and the integrity of the courts where respondent is an
employee. How the Court will tilt the scales of justice in the case at bar will decide not only the fate of respondent
Escritor but of other believers coming to Court bearing grievances on their free exercise of religion. This case comes to
us from our remand to the Office of the Court Administrator on August 4, 2003.
[1]


I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes,
Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, for an investigation of respondent Soledad
Escritor, court interpreter in said court, for living with a man not her husband, and having borne a child within this
live-in arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the image of the court,
thus she should not be allowed to remain employed therein as it might appear that the court condones her
act.
[2]
Consequently, respondent was charged with committing disgraceful and immoral conduct under Book V, Title
I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code.
[3]

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998.
[4]
She admitted that she started living with Luciano Quilapio, Jr. without the benefit of
marriage more than twenty years ago when her husband was still alive but living with another woman. She also
admitted that she and Quilapio have a son.
[5]
But as a member of the religious sect known as the Jehovahs Witnesses
and the Watch Tower and Bible Tract Society, respondent asserted that their conjugal arrangement is in conformity with
their religious beliefs and has the approval of her congregation.
[6]
In fact, after ten years of living together, she executed
on July 28, 1991, a Declaration of Pledging Faithfulness.
[7]

For Jehovahs Witnesses, the Declaration allows members of the congregation who have been abandoned by
their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within
the congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of their faith,
the Jehovahs congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities approval of the marital relationship because of legal impediments. Only couples who have been baptized
and in good standing may execute the Declaration, which requires the approval of the elders of the congregation. As a
matter of practice, the marital status of the declarants and their respective spouses commission of adultery are
investigated before the declarations are executed.
[8]
Escritor and Quilapios declarations were executed in the usual and
approved form prescribed by the Jehovahs Witnesses,
[9]
approved by elders of the congregation where the declarations
were executed,
[10]
and recorded in the Watch Tower Central Office.
[11]

Moreover, the Jehovahs congregation believes that once all legal impediments for the couple are lifted, the
validity of the declarations ceases, and the couple should legalize their union. In Escritors case, although she was
widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to
remarry. Thus, their declarations remained valid.
[12]
In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable,
[13]
the Court had to determine the contours of religious freedom under Article III, Section 5 of
the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.

A. RULING
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the
religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving religious
freedom (1) benevolent neutralityor accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the religion clauses in our Constitution; and (2) in deciding respondents plea of exemption
based on the Free Exercise Clause (from the law with which she is administratively charged), it is the compelling state
interest test, the strictest test, which must be applied.
[14]


Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of
whether respondent was to be held administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more compelling interest to defeat the claim of the respondent to religious
freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint to the Office of the Court
Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene in the case so it can:
(a) examine the sincerity and centrality of respondents claimed religious belief and practice;

(b) present evidence on the states compelling interest to override respondents religious belief
and practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to
respondents religious freedom.
[15]


It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE
IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been
ruled upon prior to the remand, and constitute the law of the case insofar as they resolved the issues of which
framework and test are to be applied in this case, and no motion for its reconsideration having been filed.
[16]
The
only task that the Court is left to do is to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.

B. LAW OF THE CASE
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration assailing this ruling, the same has attained
finality and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crass contravention of
elementary rules of procedure. Worse, insofar as it would overturn the parties right to rely upon our interpretation
which has long attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpios belated attempts to disturb settled issues, and that he had timely presented his arguments, the results would
still be the same.
We review the highlights of our decision dated August 4, 2003.

1. OLD WORLD ANTECEDENTS
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses,
because one cannot understand, much less intelligently criticize the approaches of the courts and the political branches
to religious freedom in the recent past in the United States without a deep appreciation of the roots of these
controversies in the ancient and medieval world and in the American experience.
[17]
We delved into the conception of
religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.
[18]
Then, religion developed on its own and
became superior to the state,
[19]
its subordinate,
[20]
and even becoming an engine of state policy.
[21]

We ascertained two salient features in the review of religious history: First, with minor exceptions, the history
of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name
of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of
that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes
and emperors in exchange for religions invaluable service. This was the context in which the unique experiment of the
principle of religious freedom and separation of church and state saw its birth in American constitutional democracy
and in human history.
[22]

Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic carefully
withheld from the new national government any power to deal with religion. As James Madison said, the national
government had no jurisdiction over religion or any shadow of right to intermeddle with it.
[23]

The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented
the ratification of the Constitution. The restriction had to be made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the absence of power.
[24]
It commands, in two parts
(with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof.
[25]


The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory
purposes. They have a single goalto promote freedom of individual religious beliefs and practices. In simplest terms,
the Free Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were intended to deny government the power to
use either the carrot or the stick to influence individual religious beliefs and practices.
[26]

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as
an engine to promote state interests, to the principle of non-establishment to allow the free exercise of religion.
2. RELIGION CLAUSES IN THE U.S. CONTEXT
The Court then turned to the religion clauses interpretation and construction in the United States, not because
we are bound by their interpretation, but because the U.S. religion clauses are the precursors to the Philippine religion
clauses, although we have significantly departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread agreement regarding
the value of the First Amendment religion clauses, there is an equally broad disagreement as to what these clauses
specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses
as regards its exact meaning and the paucity of records in the U.S. Congress renders it difficult to ascertain its
meaning.
[27]

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the tamer
version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the former, both are anchored on the Jeffersonian
premise that a wall of separation must exist between the state and the Church to protect the state from the
church.
[28]
Both protect the principle of church-state separation with a rigid reading of the principle. On the other hand,
the second standard, the benevolent neutrality or accommodation, is buttressed by the view that the wall of separation
is meant to protect the church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church,
and the states hostility towards religion allows no interaction between the two. According to this Jeffersonian view, an
absolute barrier to formal interdependence of religion and state needs to be erected. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate
burdens the programs placed on believers.
[29]
Only the complete separation of religion from politics would eliminate the
formal influence of religious institutions and provide for a free choice among political views, thus a strict wall of
separation is necessary.
[30]

Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary
practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion.
[31]
For example, less than twenty-four hours after Congress adopted the
First Amendments prohibition on laws respecting an establishment of religion, Congress decided to express its thanks
to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation
declaring a national day of Thanksgiving and Prayer.
[32]
Thus,strict separationists are caught in an awkward position
of claiming a constitutional principle that has never existed and is never likely to.
[33]

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or,
the governmental neutrality theory) finds basis in Everson v. Board of Education,
[34]
where the Court declared
that Jeffersons wall of separation encapsulated the meaning of the First Amendment. However, unlike the strict
separationists, the strict neutrality viewbelieves that the wall of separation does not require the state to be their
adversary. Rather, the state must be neutral in its relations with groups of religious believers and non-believers. State
power is no more to be used so as to handicap religions than it is to favor them.
[35]
The strict neutrality approach is not
hostile to religion, but it is strict in holding that religion may not be used as a basis for classification for purposes of
governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much less require, accommodation of secular
programs to religious belief.
[36]

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v. Schempp,
[37]
strict neutrality could lead to a
brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is
prohibited by the Constitution.
[38]
Professor Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise
clause. The Framers, whatever specific applications they may have intended, clearly
envisioned religion as something special; they enacted that vision into law by guaranteeing the free
exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases
this distinction. Thus it is not surprising that the [U.S.] Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious classifications.
[39]


Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, is
that while the Jeffersonian wall of separation captures the spirit of the American ideal of church-state separation, in
real life, church and state are not and cannot be totally separate. This is all the more true in contemporary times when
both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.
[40]

b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the wall of
separation, associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to
protect the state from the church, the wall is meant to protect the church from the state.
[41]
This doctrine was expressed
in Zorach v. Clauson,
[42]
which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which
there shall be no concert or union or dependency one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups. Policemen who helped parishioners
into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals
to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a
holiday; so help me God in our courtroom oaths- these and all other references to the Almighty that
run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A
fastidious atheist or agnostic could even object to the supplication with which the Court opens each
session: God save the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or cooperates
with religious authorities by adjusting the schedule of public events, it follows the best of our
traditions. For it then respects the religious nature of our people and accommodates the public service
to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that
the government show a callous indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious influence.
[43]


Benevolent neutrality recognizes that religion plays an important role in the public life of the United States as
shown by many traditional government practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of In God We Trust on American currency; the recognition of America as one nation
under God in the official pledge of allegiance to the flag; the Supreme Courts time-honored practice of opening oral
argument with the invocation God save the United States and this Honorable Court; and the practice of Congress and
every state legislature of paying a chaplain, usually of a particular Protestant denomination, to lead representatives in
prayer. These practices clearly show the preference for one theological viewpointthe existence of and potential for
intervention by a godover the contrary theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension.
[44]

Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in daily
prayers,
[45]
or requiring employers to pay workers compensation when the resulting inconsistency between work and
Sabbath leads to discharge;
[46]
for government to give money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior;
[47]
or to provide religious school pupils with books;
[48]
or bus rides to religious
schools;
[49]
or with cash to pay for state-mandated standardized tests.
[50]

(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both. This is true
whether one subscribes to the separationistapproach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government action is
not religiously motivated, these laws have a burdensome effect on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of
religion may be allowed, not to promote the governments favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a persons or institutions religion. As Justice Brennan explained, the government [may] take
religion into accountto exempt, when possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish.
[51]
In the ideal world, the legislature would recognize
the religions and their practices and would consider them, when practical, in enacting laws of general application. But
when the legislature fails to do so, religions that are threatened and burdened may turn to the courts for protection.
[52]

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially
neutral law, but an exemption from its application or its burdensome effect, whether by the legislature or the
courts.
[53]
Most of the free exercise claims brought to the U.S. Court are for exemption, not invalidation of the facially
neutral law that has a burdensome effect.
[54]

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case
of Sherbert v. Verner,
[55]
which ruled that state regulation that indirectly restrains or punishes religious belief or
conduct must be subjected to strict scrutiny under the Free Exercise Clause.
[56]
According to Sherbert, when a law of
general application infringes religious exercise, albeit incidentally, the state interest sought to be promoted must be so
paramount and compelling as to override the free exercise claim. Otherwise, the Court itself will carve out the
exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could
withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted
by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellants constitutional challenge, it must
be either because her disqualification as a beneficiary represents no infringement by the State of her
constitutional right of free exercise, or because any incidental burden on the free exercise of
appellants religion may be justified by a compelling state interest in the regulation of a subject
within the States constitutional power to regulate. . . .
[57]
(emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for
permissible limitation.
[58]
The Court found that there was no such compelling state interest to override Sherberts
religious liberty. It added that even if the state could show that Sherberts exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show
that no alternative means of regulations would address such detrimental effects without infringing religious
liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from
the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to choose between receiving benefits and
following her religion. This choice placed the same kind of burden upon the free exercise of religion as would a fine
imposed against (her) for her Saturday worship. This germinal case of Sherbert firmly established the exemption
doctrine,
[59]
viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless some
compelling state interest intervenes.

Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law embodies a
compelling interest, that no less restrictive alternative exists, and that a religious exemption would impair the states
ability to effectuate its compelling interest. As in other instances of state action affecting fundamental rights, negative
impacts on those rights demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test
resulted in court-mandated religious exemptions from facially-neutral laws of general application whenever unjustified
burdens were found.
[60]

Then, in the 1972 case of Wisconsin v. Yoder,
[61]
the U.S. Court again ruled that religious exemption was in
order,notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the
Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The
Court, in effect, granted exemption from a neutral, criminal statute that punished religiously motivated conduct. Chief
Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice of a legitimate religious belief, it must
appear either that the State does not deny the free exercise of religious belief by its requirement, or
that there is a state interest of sufficient magnitude to override the interest claiming protection
under the Free Exercise Clause. Long before there was general acknowledgement of the need for
universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of other interests of
admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of
the highest order and those not otherwise served can overbalance legitimate claims to the free
exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the
protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously
based, are often subject to regulation by the States in the exercise of their undoubted power to promote
the health, safety, and general welfare, or the Federal government in the exercise of its delegated
powers . . . But to agree that religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause
of the First Amendment and thus beyond the power of the State to control, even under regulations
of general applicability. . . .This case, therefore, does not become easier because respondents were
convicted for their actions in refusing to send their children to the public high school; in this context
belief and action cannot be neatly confined in logic-tight compartments. . .
[62]


The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject
to heightened scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny orcompelling interest test governed cases where the burden was direct, i.e., the exercise of
religion triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit;
[63]
and (c) the Court could carve out accommodations or
exemptions from a facially neutral law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protectedconduct beyond speech,
press, or worship was included in the shelter of freedom of religion. Neither Sherberts refusal to work on the Sabbath
nor the Amish parents refusal to let their children attend ninth and tenth grades can be classified as conduct protected
by the other clauses of the First Amendment. Second, indirect impositions on religious conduct, such as the denial of
twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal
prohibition at issue in Yoder, were prohibited. Third, as the language in the two cases indicate, the protection granted
was extensive. Only extremely strong governmental interests justified impingement on religious conduct, as the
absolute language of the test of the Free Exercise Clause suggests.
[64]

Fourth, the strong language was backed by a requirement that the government provide proof of the important
interest at stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in determining the
injury to the governments interest, a court was required to focus on the effect that exempting religious claimants from
the regulation would have, rather than on the value of the regulation in general. Thus, injury to governmental interest
had to be measured at the margin: assuming the law still applied to all others, what would be the effect of exempting
the religious claimant in this case and other similarly situated religious claimants in the future? Together, the fourth
and fifth elements required that facts, rather than speculation, had to be presented concerning how the governments
interest would be harmed by excepting religious conduct from the law being challenged.
[65]

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline
to prevent manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance, by not allowing speculation about the
effects of a decision adverse to those interests nor accepting that those interests would be defined at a higher level of
generality than the constitutional interests on the other side of the balance.
[66]

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with religious practices. Although the
members of the U.S. Court often disagreed over which governmental interests should be considered compelling,
thereby producing dissenting and separate opinions in religious conduct cases, this general test established a strong
presumption in favor of the free exercise of religion.
[67]
Most scholars and courts agreed that
under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of heightened scrutiny protection,
if not always a compelling interest one.
[68]
The 1990 case of Employment Division, Oregon Department of Human
Resources v. Smith,
[69]
drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenic
substance. Specifically, individuals challenged the states determination that their religious use of peyote, which
resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits.
[70]

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption
from an otherwise valid law. Scalia said that [w]e have never held that an individuals religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence contradicts that proposition.
[71]
Scalia thus declared
that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of
general applicability of the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).
[72]

Justice Scalias opinion then reviewed the cases where free exercise challenges had been upheldsuch
as Cantwell, Murdock, Follet, Pierce, and Yoderand said that none involved the free exercise clause claims alone. All
involved the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and
of the press, or the right of parents to direct the education of their children.
[73]
The Court said that Smith was
distinguishable because it did not involve such a hybrid situation, but was a free exercise claim unconnected with
any communicative activity or parental right.
[74]

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that [e]ven if we
were inclined to breathe into Sherbertsome life beyond the unemployment compensation field, we would not apply it to
require exemptions from a generally applicable criminal law.
[75]

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that
burden religion. Justice Scalia said that [p]recisely because we are a cosmopolitan nation made up of people of almost
conceivable religious preference, and precisely because we value and protect that religious divergence, we cannot
afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct
that does not protect an interest of the highest order. The Court said that those seeking religious exemptions from laws
should look to the democratic process for protection, not the courts.
[76]

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling
justification approach were abandoned for evaluating laws burdening religion; neutral laws of general applicability
only have to meet the rational basis test, no matter how much they burden religion.
[77]

Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest
test, asserting that (t)he compelling state interest test effectuates the First Amendments command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon
this liberty, whether direct or indirect, unless required by clear and compelling government interest of the highest
order.
[78]
She said that strict scrutiny is appropriate for free exercise challenges because [t]he compelling interest test
reflects the First Amendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.
[79]

Justice OConnor also disagreed with the majoritys description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, First Amendment was enacted precisely to
protect the rights of those whose religious practice are not shared by the majority and may be viewed with
hostility.
[80]

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting
Justices agreed with Justice OConnor that the majority had mischaracterized precedents, such as in describing Yoder as
a hybrid case rather than as one under the free exercise clause. The dissent also argued that strict scrutiny should be
used in evaluating government laws burdening religion.
[81]

Criticism of Smith was intense and widespread.
[82]
Academics, Justices, and a bipartisan majority of Congress
noisily denounced the decision.
[83]
Smith has the rather unusual distinction of being one case that is almost universally
despised (and this is not too strong a word) by both the liberals and conservatives.
[84]
Liberals chasten the Court for its
hostility to minority faiths which, in light of Smiths general applicability rule, will allegedly suffer at the hands of the
majority faith whether through outright hostility or neglect. Conservatives bemoan the decision as an assault on
religious belief leaving religion, more than ever, subject to the caprice of an ever more secular nation that is increasingly
hostile to religious belief as an oppressive and archaic anachronism.
[85]

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.
[86]
First, the First amendment was intended to protect minority religions
from the tyranny of the religious and political majority.
[87]
Critics of Smith have worried about religious minorities,
who can suffer disproportionately from laws that enact majoritarian mores.
[88]
Smith, in effect would allow
discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative
clout,
[89]
contrary to the original theory of the First Amendment.
[90]
Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions and Smithvirtually wiped out their judicial
recourse for exemption.
[91]
Second, Smith leaves too much leeway for pervasive welfare-state regulation to burden
religion while satisfying neutrality. After all, laws not aimed at religion can hinder observance just as effectively as
those that target religion.
[92]
Government impairment of religious liberty would most often be of the inadvertent kind as
in Smithconsidering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left
almost meaningless.
[93]
Third, theReynolds-Gobitis-Smith
[94]
doctrine simply defies common sense. The state should
not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.
[95]

At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
limiting the term religion in todays pluralistic society, and (2) the belief that courts have no business determining the
significance of an individuals religious beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it must protect virtually nothing. As a result, the
Court perceives its only viable options are to leave free exercise protection to the political process or to allow a system
in which each conscience is a law unto itself.
[96]
The Courts characterization of its choices have been soundly rejected
as false, viz:
If one accepts the Courts assumption that these are the only two viable options, then admittedly, the
Court has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too
difficult to apply and this should not be applied at all. The Constitution does not give the judiciary the
option of simply refusing to interpret its provisions. The First Amendment dictates that free exercise of
religion must be protected. Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes religion. There is no constitutional opt-out provision for constitutional
words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A
large area of middle ground exists between the Courts two opposing alternatives for free exercise
jurisprudence. Unfortunately, this middle ground requires the Court to tackle difficult issues such as
defining religion and possibly evaluating the significance of a religious belief against the importance of
a specific law. The Court describes the results of this middle ground where federal judges will
regularly balance against the importance of general laws the significance of religious practice, and
then dismisses it as a parade of horribles that is too horrible to contemplate.
It is not clear whom the Court feels would be most hurt by this parade of horribles. Surely not
religious individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity
and significance rather than acquiesce to the Courts approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned about requiring lawmakers at
times constitutionally to exempt religious individuals from statutory provisions, its concern is
misplaced. It is the lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom Restoration Act of 1993], and in any
case, the Court should not be overly concerned about hurting legislatures feelings by requiring their
laws to conform to constitutional dictates. Perhaps the Court is concerned about putting such burden
on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge
should be expected to fulfill.
[97]


Parenthetically, Smiths characterization that the U.S. Court has never held that an individuals religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate
an assertion which Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply criticized even implicitly
by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not do so by opposing the
arguments that the Court was wrong as a matter of original meaning [of the religion clauses] or that the decision
conflicted with precedent [i.e. the Smith decision made shocking use of precedent]those points were often
conceded.
[98]

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder,
by asserting that these were premised on two constitutional rights combinedthe right of parents to direct the
education of their children and the right of free exercise of religion. Under the Courts opinion in Smith, the right of free
exercise of religion standing alone would not allow Amish parents to disregard the compulsory school attendance law,
and under the Courts opinion in Yoder, parents whose objection to the law was not religious would also have to obey
it. The fatal flaw in this argument, however, is that if two constitutional claims will fail on its own, how would it prevail
if combined?
[99]
As for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to denials of
unemployment compensation benefits where the religiously-compelled conduct that leads to job loss is not a violation
of criminal law. And yet, this is precisely why the rejection of Sherbert was so damaging in its effect: the religious
person was more likely to be entitled to constitutional protection when forced to choose between religious conscience
and going to jail than when forced to choose between religious conscience and financial loss.
[100]

Thus, the Smith decision elicited much negative public reaction especially from the religious community, and
commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.
[101]
So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.
[102]
The
RFRA was adopted to negate theSmith test and require strict scrutiny for free exercise claims. Indeed, the findings
section of the Act notes that Smith virtually eliminated the requirement that the government justify burdens on
religious exercise imposed by laws neutral toward religion.
[103]
The Act declares that its purpose is to restore the
compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in
all cases where free exercise of religion is substantially burdened; and to provide a claim of defense to a person whose
religious exercise is substantially burdened by government.
[104]
The RFRA thus sought to overruleSmith and make
strict scrutiny the test for all free exercise clause claims.
[105]

In the City of Boerne v. Flores,
[106]
the U.S. Supreme Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled that
Congress is empowered to enact laws to enforce the amendment, but Congress is not enforcing when it creates new
constitutional rights or expands the scope of rights.
[107]

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for
the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
Values that are protected against governmental interference through enshrinement in the Bill
of Rights are not thereby banished from the political process. Just as society believes in the negative
protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster
the dissemination of the printed word, so also a society that believes in the negative protection
accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress.
Contrary to the Courts characterization of the RFRA as a kind of usurpation of the judicial power to say what the
Constitution means, the law offered no definition of Free Exercise, and on its face appeared to be a procedural measure
establishing a standard of proof and allocating the duty of meeting it. In effect, the Court ruled that Congress had no
power in the area of religion. And yet, Free Exercise exists in the First Amendment as a negative on Congress. The
power of Congress to act towards the states in matters of religion arises from the Fourteenth Amendment.
[108]

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we
consider the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grossly inconsistent
with the importance placed by the framers on religious faith. Smith is dangerous precedent because it subordinates
fundamental rights of religious belief and practice to all neutral, general legislation. Sherbert recognized the need to
protect religious exercise in light of the massive increase in the size of government, the concerns within its reach, and
the number of laws administered by it. However, Smith abandons the protection of religious exercise at a time when
the scope and reach of government has never been greater. It has been pointed out that Smithcreates the legal
framework for persecution: through general, neutral laws, legislatures are now able to force conformity on religious
minorities whose practice irritate or frighten an intolerant majority.
[109]

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the
Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly where it
would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of Rights, the
religion clauses of the First Amendment are most important to those who cannot prevail in the political process. The
Court in Smith ignores the fact that the protections found in the Bill of Rights were deemed too important to leave to
the political process. Because mainstream religions generally have been successful in protecting their interests through
the political process, it is the non-mainstream religions that are adversely affected bySmith. In short, the U.S. Supreme
Court has made it clear to such religions that they should not look to the First Amendment for religious freedom.
[110]

(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or legislative, i.e.,
not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause; and (c) those which
the religion clauses prohibit.
[111]

Mandatory accommodation results when the Court finds that accommodation is required by the Free Exercise
Clause, i.e,when the Court itself carves out an exemption. This accommodation occurs when all three conditions of the
compelling interest test are met, i.e, a statute or government action has burdened claimants free exercise of religion, and
there is no doubt as to the sincerity of the religious belief; the state has failed to demonstrate a particularly important or
compelling governmental goal in preventing an exemption; and that the state has failed to demonstrate that it used the
least restrictive means. In these cases, the Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or hostility could explain a refusal to make
exemptions. Thus, if the states objective could be served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder case is an
example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to
enrolling their children in high school as required by law. The Sherbert case is another example where the Court held
that the state unemployment compensation plan must accommodate the religious convictions of Sherbert.
[112]

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state was required
to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to religion are by
no means co-extensive with the noninterference mandated by the Free Exercise Clause.
[113]
Other examples are Zorach
v. Clauson,
[114]
allowing released time in public schools and Marsh v. Chambers,
[115]
allowing payment of legislative
chaplains from public funds. Parenthetically, the Court in Smith has ruled that this is the only accommodation allowed
by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited accommodation. In
this case, the Court finds that establishment concerns prevail over potential accommodation interests. To say that there
are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions
are valid.
[116]
An example where accommodation was prohibited is McCollum v. Board of Education,
[117]
where the
Court ruled against optional religious instruction in the public school premises.
[118]

Given that a free exercise claim could lead to three different results, the question now remains as to how the
Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test which
is most in line with thebenevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry
out ones duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religion
looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face is argued to
prevent or burden what someones religious faith requires, or alternatively, requires someone to undertake an act that
faith would preclude. In essence, then, free exercise arguments contemplate religious exemptions from otherwise
general laws.
[119]

Strict scrutiny is appropriate for free exercise challenges because [t]he compelling interest test reflects the First
Amendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.
[120]
Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.
[121]

In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or practice is
necessary to the accomplishment of some important (or compelling) secular objective and that it is the
least restrictive means of achieving that objective. If the plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need not necessarily be consistent, coherent,
clearly articulated, or congruent with those of the claimants religious denomination. Only beliefs
rooted in religion are protected by the Free Exercise Clause; secular beliefs, however sincere and
conscientious, do not suffice.
[122]


In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationist
approach, or the benevolent neutrality approach. The benevolent neutrality approach has also further been split by the
view that the First Amendment requires accommodation, or that it only allows permissible legislative accommodations.
The current prevailing view as pronounced in Smith, however, is that that there are no required accommodation
under the First Amendment, although it permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately
clear that one cannot simply conclude that we have adoptedlock, stock and barrelthe religion clauses as embodied
in the First Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in the U.S. where legislative
exemptions of religion had to be upheld by the U.S. Supreme Court as constituting permissive accommodations, similar
exemptions for religion are mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and 1987
Constitutions contain provisions on tax exemption of church property,
[123]
salary of religious officers in government
institutions,
[124]
and optional religious instruction.
[125]
Our own preamble also invokes the aid of a divine
being.
[126]
These constitutional provisions are wholly ours and have no counterpart in the U.S. Constitution or
its amendments. They all reveal without doubt that the Filipino people, in adopting these constitutions, manifested
their adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion
clauses.
[127]

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that the
1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of theponencia. What the ponencia pointed out was that even as early as 1935, or more than three
decades before the U.S. Court could validate the exemption in Walz as a form or permissible accommodation, we have
already incorporated the same in our Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure from the U.S. Constitution, insofar
as religious accommodations are concerned. It is indubitable that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution.
[128]
As stated in
our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were
largely adopted from the First Amendment of the U.S. Constitution xxxx Philippine jurisprudence
and commentaries on the religious clauses also continued to borrow authorities
fromU.S. jurisprudence without articulating the stark distinction between the two streams
of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause
jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the
Court, a separationist approach or abenevolent neutrality approach might be adopted and each will
have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment
as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion clauses history. As a result, in a
case where the party claims religious liberty in the face of a general law that inadvertently burdens his
religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by
other provisions on religion in all three constitutions. It is a cardinal rule in constitutional
construction that the constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to all of them full force
and effect. From this construction, it will be ascertained that the intent of the framers was to adopt
a benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the
constitution.
[129]
[citations omitted]

We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of the religion clauses
to effectively deny accommodations on the sole basis that the law in question is neutral and of general application. For
even if it were true that an unbroken line of U.S. Supreme Court decisions has never held that an individuals
religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate, our own Constitutions have made significant changes to accommodate and exempt
religion. Philippine jurisprudence shows that the Court has allowed exemptions from a law of general application,
in effect, interpreting our religion clauses to cover both mandatory and permissive accommodations.
[130]

To illustrate, in American Bible Society v. City of Manila,
[131]
the Court granted to plaintiff exemption from a
law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance to
secure a mayors permit and a municipal license as ordinarily required of those engaged in the business of general
merchandise under the citys ordinances. Plaintiff argued that this amounted to religious censorship and restrained the
free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines. Although the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or occupation of selling said merchandise for profit, it
also ruled that applying the ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would
impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs as the
power to tax the exercise of a privilege is the power to control or suppress its enjoyment. The decision states in
part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on the grounds that there is aclear and
present danger of any substantive evil which the State has the right to prevent. (citations
omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of
Schools.
[132]
The case involved several Jehovahs Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In
resolving the religious freedom issue, a unanimous Court overturned an earlier ruling denying such
exemption,
[133]
using the grave and imminent danger test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan,
135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified.
[134]
(emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the strength
directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope
Workers Union
[135]
is an example of the application of Mr. Justice Carpios theory of permissive accommodation, where
religious exemption is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350 was
questioned. The said R.A. exempt employees from the application and coverage of a closed shop agreementmandated
in another lawbased on religious objections. A unanimous Court upheld the constitutionality of the law, holding that
government is not precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect. Interestingly, the secular purpose of the challenged law which the Court upheld was the
advancement of the constitutional right to the free exercise of religion.
[136]

Having established that benevolent neutrality-accommodation is the framework by which free exercise cases
must be decided, the next question then turned to the test that should be used in ascertaining the limits of the exercise
of religious freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and present
danger test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general applicability may
burden religious exercise provided the law is the least restrictive means to accomplish the goal of the
law. The case also used, albeit inappropriately, the compelling state interest
test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the grave and
immediate danger test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the clear and present danger test in the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the clear and present danger or grave and immediate
danger test involved, in one form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases set the rule that religious
freedom will not prevail over established institutions of society and law. Gerona, however, which was
the authority cited by German has been overruled by Ebralinag which employed the grave and
immediate danger test. Victoriano was the only case that employed the compelling state interest
test, but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where
the clear and present danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious
belief. The compelling state interest test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the states interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the interests of the state
in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights - the most inalienable and
sacred of all human rights, in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos
implore the aid of Almighty God in order to build a just and humane society and establish a
government. As held in Sherbert, only the gravest abuses, endangeringparamount interests can limit
this fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling
one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until
they are destroyed. In determining which shall prevail between the states interest and religious
liberty, reasonableness shall be the guide. The compelling state interest serves the purpose of
revering religious liberty while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In
the end, the compelling state interest test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
[137]
(citations omitted)

At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the applicability of
the benevolent neutrality framework and compelling state interest test, states that [i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of exemption as made here by Escritor. This
assertion is inconsistent with the position negating the benevolent neutrality or accommodation approach. If it were
true, indeed, that the religion clauses do notrequire accommodations based on the free exercise of religion, then there
would be no need for a test to determine the validity of a free exercise claim, as any and all claims for religious
exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that [m]aking a distinction between permissive accommodation and mandatory
accommodation is more critically important in analyzing free exercise exemption claims because it forces the Court to
confront how far it can validly set the limits of religious liberty under the Free Exercise Clause, rather than presenting
the separation theory and accommodation theory as opposite concepts, and then rejecting relevant and instructive
American jurisprudence (such as the Smithcase) just because it does not espouse the theory selected. He then asserts
that the Smith doctrine cannot be dismissed because it does not really espouse the strict neutrality approach, but more
of permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith is that only legislative
accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually
espouses the theory of accommodation or benevolent neutrality, the accommodation is limited to the permissive, or
legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious exemptions directly
under the Free Exercise Clause because Smith does not recognizesuch exemption. Moreover, Mr. Justice Carpios
advocacy of the Smith doctrine would effectively render the Free Exercise protectiona fundamental right under our
Constitutionnugatory because he would deny its status as an independent source of right.

b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this process
in detail, by showing the questions which must be answered in each step, viz:
First, [H]as the statute or government action created a burden on the free exercise of religion? The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits inquiring about its truth as held
in Ballardand Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim of
religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: [I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty? In this step, the government has to establish that its purposes are
legitimate for the state and that they are compelling. Government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: [H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than necessary to achieve
the legitimate goal of the state? The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve
its legitimate state end that imposes as little as possible on religious liberties xxx.
[138]
[citations omitted]

Again, the application of the compelling state interest test could result to three situations of accommodation:
First, mandatory accommodation would result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to, accommodate religious
interests, permissive accommodation results. Finally, if the Court finds that that establishment concerns prevail over
potential accommodation interests, then it must rule that theaccommodation is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only permissive accommodation can carve
out an exemption from a law of general application. He posits the view that the law should prevail in the absence of a
legislative exemption, and the Court cannot make the accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases of American Bible
Society,Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-
accommodation covers not only the grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible, even if anchored directly on an
invocation of the Free Exercise Clause alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive accommodation
based on religious freedom has been granted with respect to one of the crimes penalized under the Revised Penal Code,
that of bigamy.
In the U.S. case of Reynolds v. United States,
[139]
the U.S. Court expressly denied to Mormons an exemption
from a general federal law criminalizing polygamy, even if it was proven that the practice constituted a religious duty
under their faith.
[140]
In contradistinction, Philippine law accommodates the same practice among Moslems, through a
legislative act. For while the act of marrying more than one still constitutes bigamy under the Revised Penal Code,
Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that
the penal laws relative to the crime of bigamy shall not apply to a person marriedunder Muslim law. Thus, by
legislative action, accommodation is granted of a Muslim practice which would otherwise violate a valid and general
criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision dated August 4,
2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik,
[141]
he stated that a Muslim Judge is not
criminally liable for bigamy because Sharia law allows a Muslim to have more than one wife.
From the foregoing, the weakness of Mr. Justice Carpios permissive-accommodation only advocacy in this
jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that the guaranty of religious liberty
as embodied in the Free Exercise Clause does not require the grant of exemptions from generally applicable laws to individuals
whose religious practice conflict with those laws, his theory is infirmed by the showing that the benevolent neutrality
approach which allows for both mandatory and permissive accommodations was unequivocally adopted by our
framers in the Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a permissive accommodation-only stance is the antithesis to the
notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable
when the law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded
that there is no question that in the Philippine context, accommodations are made, the question remains as to how far
the exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatory
accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding that the Free Exercise
Clause required the accommodation, ormandatory accommodations) has already been decided, not just once, but twice
by the Court. Thus, the crux of the matter is whether this Court can make exemptions as in Ebralinag and the American
Bible Society, in cases involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, thebenevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and given
leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations,
was to address the inadvertent burdensome effect that an otherwise facially neutral law would have on religious
exercise. Just because the law is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise
Clause. As stated by Justice OConnor in her concurring opinion in Smith, [t]here is nothing talismanic about neutral
laws of general applicability or general criminal prohibitions, for laws neutral towards religion can coerce a person to
violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion.
[142]

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who
are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protect
adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference
and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials
are frequently willing to make such exemptions when the need is brought to their attention, but this
may not always be the case when the religious practice is either unknown at the time of enactment or is
for some reason unpopular. In these cases, a constitutional interpretation
that allows accommodations prevents needless injury to the religious consciences of those who can
have an influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied
for the first time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslem
polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other fundamental rights in the Bill
of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of due process, unreasonableness, or lawful
order. Only the right to free speech is comparable in its absolute grant. Given the unequivocal and unqualified grant
couched in the language, the Court cannot simply dismiss a claim of exemption based on the Free Exercise Clause,
solely on the premise that the law in question is a general criminal law.
[143]
If the burden is great and the sincerity of the
religious belief is not in question, adherence to the benevolent neutrality-accommodation approach require that the
Court make an individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation
approach does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. This
is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to
entertain. Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection. This is precisely the purpose of the testto draw the
line between mandatory, permissible and forbidden religious exercise. Thus, under the framework, the Court cannot
simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox
view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of the
Constitution.
[144]
As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest
or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine
on the ideal towards which religious clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad from which the
Court should take off in interpreting religion clause cases. The ideal towards which this approach
is directed is the protection of religious liberty not only for a minority, however small- not only for
a majority, however large but for each of us to the greatest extent possible within flexible
constitutional limits.
[145]


II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the careful
application of the compelling state interest test, i.e., determining whether respondent is entitled to exemption, an issue
which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officers
report,
[146]
along with the evidence submitted by the OSG, this case is once again with us, to resolve the penultimate
question of whether respondent should be found guilty of the administrative charge of disgraceful and immoral
conduct. It is at this point then that we examine the report and documents submitted by the hearing officer of this case,
and apply the three-step process of the compelling state interest test based on the evidence presented by the parties,
especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality
of respondents claimed religious belief and practice are beyond serious doubt.
[147]
Thus, having previously established
thepreliminary conditions required by the compelling state interest test, i.e., that a law or government practice inhibits
the free exercise of respondents religious beliefs, and there being no doubt as to the sincerity and centrality of her faith
to claim the exemption based on the free exercise clause, the burden shifted to the government to demonstrate that the
law or practice justifies a compelling secular objective and that it is the least restrictive means of achieving that
objective.
A look at the evidence that the OSG has presented fails to demonstrate the gravest abuses, endangering
paramount interests which could limit or override respondents fundamental right to religious freedom. Neither
did the government exert any effort to show that the means it seeks to achieve its legitimate state objective is the
least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. EXHIBIT A-OSG AND SUBMARKING The September 30, 2003 Letter to the OSG of Bro.
Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract Society of the
Philippines, Inc.
PURPOSE: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondents claimed religious belief and practice.
2. EXHIBIT B-OSG AND SUBMARKING The duly notarized certification dated September 30,
2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed religious belief
and practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovahs Witnesses, cannot be a source of any legal
protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondents claimed religious belief and practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution
[148]
and the Family Code,
[149]
argues that marriage and the
family are so crucial to the stability and peace of the nation that the conjugal arrangement embraced in the Declaration
of Pledging Faithfulness should not be recognized or given effect, as it is utterly destructive of the avowed institutions
of marriage and the family for it reduces to a mockery these legally exalted and socially significant institutions which in
their purity demand respect and dignity.
[150]

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts
that the State has a compelling interest in the preservation of marriage and the family as basic social institutions, which
is ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also argues that
in dismissing the administrative complaint against respondent, the majority opinion effectively condones and accords
a semblance of legitimacy to her patently unlawful cohabitation... and facilitates the circumvention of the Revised
Penal Code. According to Mr. Justice Carpio, by choosing to turn a blind eye to respondents criminal conduct, the
majority is in fact recognizing a practice, custom or agreement that subverts marriage. He argues in a similar fashion as
regards the states interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage and
the family, or even in the sound administration of justice. Indeed, the provisions by which respondents relationship is
said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles 334
and 349 of the Revised Penal Code, and even the provisions on marriage and family in the Civil Code and Family Code,
all clearly demonstrate the States need to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in our
Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights the most
inalienable and sacred of human rights, in the words of Jefferson. Hence, it is not enough to contend that the states
interest is important, because our Constitution itself holds the right to religious freedom sacred. The State must
articulate in specific terms the state interest involved in preventing the exemption, which must be compelling, for only
the gravest abuses, endangering paramount interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of right by itself.
Thus, it is not the States broad interest in protecting the institutions of marriage and the family, or even in
the sound administration of justice that must be weighed against respondents claim, but the States narrow interest in
refusing to make an exception for the cohabitation which respondents faith finds moral. In other words, the
government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are granted.
[151]
This, the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest test, the States interest in enforcing its
prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the State has not
evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. The
State has never sought to prosecute respondent nor her partner. The States asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and
Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would effectively
break up an otherwise ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years] and have the effect of defeating the very substance of marriage and the family.

The Solicitor General also argued against respondents religious freedom on the basis of morality, i.e., that the
conjugal arrangement of respondent and her live-in partner should not be condoned because adulterous relationships
are constantly frowned upon by society;
[152]
and that State laws on marriage, which are moral in nature, take clear
precedence over the religious beliefs and practices of any church, religious sect or denomination on marriage. Verily,
religious beliefs and practices should not be permitted to override laws relating to public policy such as those of
marriage.
[153]


The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her
dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have already
been addressed in our decision dated August 4, 2003.
[154]
In said Decision, we noted that Mme. Justice Ynares-Santiagos
dissenting opinion dwelt more on the standards of morality, without categorically holding that religious freedom is not
in issue.
[155]
We, therefore, went into a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the morality it
sanctions.
[156]
Thus, when the law speaks of immorality in the Civil Service Law or immoral in the
Code of Professional Responsibility for lawyers,
[157]
or public morals in the Revised Penal Code,
[158]
or
morals in the New Civil Code,
[159]
or moral character in the Constitution,
[160]
the distinction between
public and secular morality on the one hand, and religious morality, on the other, should be kept in
mind;
[161]

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling state
interests;
[162]

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm where it has
authority.
[163]

(d) Having distinguished between public and secular morality and religious morality, the more
difficult task is determining which immoral acts under this public and secular morality fall under the
phrase disgraceful and immoral conduct for which a government employee may be held
administratively liable.
[164]
Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to another which Philippine
law and jurisprudence consider both immoral and illegal.
[165]

(e) While there is no dispute that under settled jurisprudence, respondents conduct constitutes
disgraceful and immoral conduct, the case at bar involves the defense of religious freedom, therefore
none of the cases cited by Mme. Justice Ynares-Santiago apply.
[166]
There is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovahs
Witnesses under the same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so odious and barbaric as to be immoral and punishable by law.
[167]


Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct
prejudicial to the best interest of the service, and we reiterate that the dissent offends due process as respondent was not
given an opportunity to defend herself against the charge of conduct prejudicial to the best interest of the
service. Indeed, there is no evidence of the alleged prejudice to the best interest of the service.
[168]


Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent
exemption from the laws which respondent Escritor has been charged to have violated, the exemption would not apply
to Catholics who have secured church annulment of their marriage even without a final annulment from a civil
court. First, unlike Jehovahs Witnesses, the Catholic faith considers cohabitation without marriage as immoral. Second,
but more important, the Jehovahs Witnesses have standards and procedures which must be followed before
cohabitation without marriage is given the blessing of the congregation. This includes an investigative process whereby
the elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not a blanket authority
to cohabit without marriage because once all legal impediments for the couple are lifted, the validity of the Declaration
ceases, and the congregation requires that the couple legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises
the issue of equality among religions, we look to the words of the Religion Clauses, which clearly single out religion for
both a benefit and a burden: No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof On its face, the language grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage, preventing the government from supporting it. To
understand this as a provision which puts religion on an equal footing with other bases for action seems to be a curious
reading. There are no free exercise of establishment provisions for science, sports, philosophy, or family relations.
The language itself thus seems to answer whether we have a paradigm of equality or liberty; the language of the Clause
is clearly in the form of a grant of liberty.
[169]


In this case, the governments conduct may appear innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the
minority from the majority, the question of which perspective is appropriate would seem easy to answer. Moreover,
the text, history, structure and values implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equalitya reading of the religion clauses which leaves both politically dominant and
the politically weak religious groups equal in their inability to use the government (law) to assist their own religion or
burden othersmakes the most sense in the interpretation of the Bill of Rights, a document designed to protect
minorities and individuals from mobocracy in a democracy (the majority or a coalition of minorities).
[170]


As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause.
[171]
Thus, in arguing that respondent
should be held administratively liable as the arrangement she had was illegal per se because, by universally recognized
standards, it is inherently or by its very nature bad, improper, immoral and contrary to good conscience,
[172]
the
Solicitor General failed to appreciate thatbenevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.
[173]


Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate
that the state has used the least intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties.
[174]
Again, the Solicitor General utterly failed to prove this element of
the test. Other than the two documents offered as cited above which established the sincerity of respondents religious
belief and the fact that the agreement was an internal arrangement within respondents congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any such evidence to show that
the means the state adopted in pursuing this compelling interest is the least restrictive to respondents religious
freedom.

Thus, we find that in this particular case and under these distinct circumstances, respondent Escritors
conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her
fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that
freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom,
however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld
must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is DISMISSED.

SO ORDERED.


ANG LADLAD LGBT PARTY VS COMELEC



Republic of the Philippines
Supreme Court
Baguio City

EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582
represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:
Respondent. April 8, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette
[1]


One unavoidable consequence of everyone having the freedom to choose is that others may make different choices
choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger
us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about
important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet
herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to
create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated
November 11, 2009
[2]
(the First Assailed Resolution) and December 16, 2009
[3]
(the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.
[4]


Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-
gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The
application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17,
2009, Ang Ladlad again filed a Petition
[5]
for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections.
[6]
Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters,
and outlined its platform of governance.
[7]


On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition
on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to,
and intimate and sexual relations with, individuals of a different gender, of the same gender, or
more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change
the natural use into that which is against nature: And likewise also the men, leaving the natural
use of the woman, burned in their lust one toward another; men with men working that which
is unseemly, and receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a people
transgressing beyond bounds. (7.81) And we rained down on them a shower (of brimstone):
Then see what was the end of those who indulged in sin and crime! (7:84) He said: O my
Lord! Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the
Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are
already of age. It is further indicated in par. 24 of the Petition which waves for the record: In
2007,Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis
19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are
deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as
Any act, omission, establishment, business, condition of property, or anything else which x x x
(3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs, public order or public policy. Art
1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy are inexistent and void from the
beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos,
or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;

2. (a) The authors of obscene literature, published with their knowledge in any form;
the editors publishing such literature; and the owners/operators of the establishment selling the
same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed
by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for violence,lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that older practicing homosexuals are a threat to the youth. As an agency of the
government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.
[8]



When Ang Ladlad sought reconsideration,
[9]
three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang
Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests are also the nations only that their
interests have not been brought to the attention of the nation because of their under representation. Until the time
comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a special class of individuals. x x
x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and
that nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal
equality of homosexual relations, as in the case of race or religion or belief.

x x x x

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.

x x x x

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither
is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a
society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly
accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty ofprision mayor upon Those who shall publicly expound or proclaim
doctrines openly contrary to public morals. It penalizes immoral doctrines, obscene publications and exhibition
and indecent shows. Ang Ladlad apparently falls under these legal provisions. This is clear from its Petitions
paragraph 6F:Consensual partnerships or relationships by gays and lesbians who are already of age It is further
indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any act,
omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x. These are all
unlawful.
[10]



On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the
COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary
mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the
May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not
later than12:00 noon of January 11, 2010.
[11]
Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting
that it be given until January 16, 2010 to Comment.
[12]
Somewhat surprisingly, the OSG later filed a Comment in support of
petitioners application.
[13]
Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its
own comment.
[14]
The COMELEC, through its Law Department, filed its Comment on February 2, 2010.
[15]


In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.
[16]


Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus
Curiae,attaching thereto its Comment-in-Intervention.
[17]
The CHR opined that the denial of Ang Ladlads petition on moral
grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene
[18]
which motion was granted on February 2,
2010.
[19]


The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated
the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of thePhilippines international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for
registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special
interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the
purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there
had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to
benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT
sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its
petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act
No. 7941


The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated
in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the
party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,
[20]
the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was
shown that save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country.
[21]

This argument that petitioner made untruthful statements in its petition when it alleged its national existence is a new
one; previously, the COMELEC claimed that petitioner was not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections. Nowhere was this
ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite
curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the
issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondents theory, and a serious violation of petitioners right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows
that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in
the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country,
and 4,044 members in its electronic discussion group.
[22]
Ang Ladlad also represented itself to be a national LGBT umbrella
organization with affiliates around the Philippines composed of the following LGBT networks:

Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City
[23]



Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not
even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements
for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the
requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or
lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for
Registration


Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious
matters.
[24]
Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality.
[25]
We thus find
that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:
[26]


x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class
citizens.
In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society"
and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on those engaged in public deliberations over
what actions would be considered a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in
its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny
of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of
religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits.
Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests.
[27]



Public Morals as a Ground to Deny Ang Ladlads Petition for Registration


Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-
based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because
of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which
believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set
of moral precepts is in danger of losing its own existence.
[28]



We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have
borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions
about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these
generally accepted public morals have not been convincingly transplanted into the realm of law.
[29]


The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that
there should have been a finding by the COMELEC that the groups members have committed or are committing immoral
acts.
[30]
The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought
and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full
of disqualification cases against both the straights and the gays. Certainly this is not the intendment of the
law.
[31]



Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the
youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would
be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without
authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through
the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation
of morality will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at
worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality, the remedies for which are a prosecution under the Revised Penal Code
or any local ordinance, a civil action, or abatement without judicial proceedings.
[32]
A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts
more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal
protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be denied equal
protection of the laws, courts have never interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons.
[33]
The equal protection clause guarantees that no person or class of
persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in
like circumstances.
[34]


Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to some legitimate government end.
[35]
In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,
[36]
we declared that [i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.
[37]


The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state
interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy
rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang
Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other
than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate
in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the
purposes of the equal protection clause.
[38]
We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and
that the COMELEC made an unwarranted and impermissible classification not justified by the circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity
of its position through normal democratic means.
[39]
It is in the public square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada v. Escritor:
[40]


In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access
to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups.

Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies including protection of religious freedom "not only for a
minority, however small not only for a majority, however large but for each of us" the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.


Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must
be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to
impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that
both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals
are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual
conduct violates public morality does not justify criminalizing same-sex conduct.
[41]
European and United Nations judicial
decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.
[42]
To the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect
gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public
institutions must show that their actions were caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.
[43]


With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in
the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent
with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association,
even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population.
[44]
A political group
should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of
satisfying everyone concerned.
[45]
Only if a political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee.
[46]


We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even
defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe
with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the
religious or moral views of one part of the community to exclude from consideration the values of other members of the
community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex
moral sentiments of Filipinos.We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this
Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4,
Article III of the Constitution.

x x x x

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is
a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its
members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x
[47]

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and
as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political
party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that
there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law


In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in
particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups
struggling with inadequate structural and governmental support, international human rights norms are particularly significant,
and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of
conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular,
we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the
UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.


In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied
equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio
for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to sex in Article
26 should be construed to include sexual orientation.
[48]
Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various international agreements.
[49]


The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.

Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.


As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the
Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative
and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity
with the principles of the Covenant.

x x x x

15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand
for election should not be excluded by unreasonable or discriminatory requirements such as education, residence
or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any
kind because of that person's candidacy. States parties should indicate and explain the legislative provisions
which exclude any group or category of persons from elective office.
[50]


We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines
international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the
petitioners invocation of theYogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),
[51]
which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on
the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of
the International Court of Justice.
[52]
Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is
unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires
as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting
real human rights, and is a result of the notion that if wants are couched in rights language, then they are no longer
controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various
international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so
much of contemporary international law is characterized by the soft law nomenclature, i.e., international law is full of principles
that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-
meaning desires, without the support of either State practice or opinio juris.
[53]


As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal
attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its
own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion,
and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11,
2009 andDecember 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.
SO ORDERED.
CASE DIGEST:
Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It filed a petition
for accreditation as a party-list organization to public respondent. However, due to moral grounds, the latter denied the
said petition. To buttress their denial, COMELEC cited certain biblical and quranic passages in their decision. It also
stated that since their ways are immoral and contrary to public policy, they are considered nuissance. In fact, their acts
are even punishable under the Revised Penal Code in its Article 201.
A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65 of the ROC.
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of
laws, as well as constituted violations of the Philippines international obligations against discrimination based on
sexual orientation.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda
to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that
the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by
COMELECs field personnel.
Issue:
WON Respondent violated the Non-establishment clause of the Constitution;
WON Respondent erred in denying Petitioners application on moral and legal grounds.
Held:
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered
under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections, the enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not
whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of
the Constitution and RA 7941.
Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government
neutrality in religious matters. Clearly, governmental reliance on religious justification is inconsistent with this policy
of neutrality. We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that government action must have a secular
purpose.
Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for
the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition
of property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial
proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable
doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and
a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral
grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest.
IMBONG VS OCHOA
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas,
Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria
Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco
for themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco,
Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V.
Araneta & Eileen Z. Araneta for themselves and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya
Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor
children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses
Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho, Mikaela
Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves
and on behalf of their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho &
Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-General,
THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson, Remedios lgnacio-Rikken, THE
PHILIPPINE HEALTH INSURANCE CORPORATION, represented by its President Eduardo Banzon, THE
LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF
CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in his
personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of
the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA,
LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio
Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido
C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and Development, HON.
ARSENIO BALISACAN, Director-General, National Economic and Development Authority, HON. SUZETTE H.
LAZO, Director-General, Food and Drugs Administration, THE BOARD OF DIRECTORS, Philippine Health
Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND
JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ,
MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA
COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the Department
of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II, Secretary of the
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her
personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA,
CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L.
POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of
Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Management,Respondents.
D E C I S I O N
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs , and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."
1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social services remains to be a problem that
concerns not only the poor, but every member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people and the development of the country as
a whole. The legislative branch, as the main facet of a representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that merely casts its watchful eyes on clashing stakeholders until it
is called upon to adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its
solemn duty to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates
2
to sticker campaigns,
3
from rallies by socio-
political activists to mass gatherings organized by members of the clergy
4
- the clash between the seemingly antithetical
ideologies of the religious conservatives and progressive liberals has caused a deep division in every level of the
society. Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the
Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,
5
filed by spouses Attys. James M. Imbong and Lovely Ann C.
Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor children;
and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,
6
filed by the Alliance for the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche
7
and several others
8
in their personal capacities as citizens and on
behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,
9
filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in
their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,
10
filed by Serve Life Cagayan De Oro City, Inc.,
11
Rosevale
Foundation, Inc.,
12
a domestic, privately-owned educational institution, and several others,
13
in their capacities
as citizens (Serve Life);
(5) Petition,
14
filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,
15
filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate of
the Philippines,
16
in their capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,
17
filed by the Philippine Alliance of Xseminarians Inc.,
18
and several
others
19
in their capacities as citizens and taxpayers (PAX);
(8) Petition,
20
filed by Reynaldo J. Echavez, M.D. and several others,
21
in their capacities as citizens and
taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,
22
filed by spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia
is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,
23
filed by Pro-Life Philippines Foundation Inc.
24
and several
others,
25
in their capacities as citizens and taxpayers and on behalf of its associates who are members of the Bar
(Pro-Life);
(11) Petition for Prohibition,
26
filed by Millennium Saint Foundation, Inc.,
27
Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,
28
filed by John Walter B. Juat and several others,
29
in their capacities
as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,
30
filed by Couples for Christ Foundation, Inc. and several others,
31
in
their capacities as citizens (CFC);
(14) Petition for Prohibition
32
filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities as
citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,
33
filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,
34
filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the
following GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its declared
policy against abortion, the implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section 12, Article II of
the Constitution which guarantees protection of both the life of the mother and the life of the unborn from
conception.
35

The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to one's
health, as it causes cancer and other health problems.
36

The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to their
beliefs is included in the constitutional mandate ensuring religious freedom.
37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and other
forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full and correct information on reproductive health programs and service,
although it is against their religious beliefs and convictions.
38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),
39
provides that
skilled health professionals who are public officers such as, but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health physicians, hospital staff nurses, public health nurses, or rural
health midwives, who are specifically charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.
40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be
allowed as it is an affront to their religious beliefs.
41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law fails
to satisfy the "clear and present danger test" and the "compelling state interest test" to justify the regulation of the right
to free exercise of religion and the right to free speech.
42

The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the
RH Law subjects medical practitioners to involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and other forms of punishment.
43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health services since the lack of PhilHealth accreditation would mean that
the majority of the public would no longer be able to avail of the practitioners services.
44

The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes contraceptive
use. The petitioners argue that, rather than promoting reproductive health among the poor, the RH Law seeks
to introduce contraceptives that would effectively reduce the number of the poor.
45

The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing
the penalty of imprisonment and/or fine for "any violation," it is vague because it does not define the type of
conduct to be treated as "violation" of the RH Law.
46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from them
(the people) the right to manage their own affairs and to decide what kind of health facility they shall be and what kind
of services they shall offer."
47
It ignores the management prerogative inherent in corporations for employers to conduct
their affairs in accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his own preferred way of family planning. The
petitioners note that although exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to perform the service or
procedure.
48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended
that the RH Law providing for mandatory reproductive health education intrudes upon their constitutional
right to raise their children in accordance with their beliefs.
49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH
Law forsakes any real dialogue between the spouses and impedes the right of spouses to mutually decide on matters
pertaining to the overall well-being of their family. In the same breath, it is also claimed that the parents of a child who
has suffered a miscarriage are deprived of parental authority to determine whether their child should use
contraceptives.
50

The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is non-
abortifacient and to be included in the Emergency Drugs List (EDL).
51

The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.
52

The RH Law violates Natural Law.
53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous
Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon the powers devolved to LGUs and the
ARMM under the Local Government Code and R.A . No. 9054.
54

Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the petitions
in behalf of the respondents,
55
Congressman Edcel C. Lagman,
56
former officials of the Department of Health Dr.
Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,
57
the Filipino Catholic Voices for Reproductive
Health (C4RH),
58
Ana Theresa "Risa" Hontiveros,
59
and Atty. Joan De Venecia
60
also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave
to intervene.
61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not yet ripe
for judicial determination.; 2] some petitioners lack standing to question the RH Law; and 3] the petitions are essentially
petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order
(SQAO), enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.
62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or identify
the pertinent issues raised by the parties and the sequence by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral argument. On July
16, 2013, the SQAO was ordered extended until further orders of the Court.
63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the same
time posed several questions for their clarification on some contentions of the parties.
64

The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices." Although contraceptive
drugs and devices were allowed, they could not be sold, dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified
medical practitioner."
65

In addition, R.A. No. 5921,
66
approved on June 21, 1969, contained provisions relative to "dispensing of abortifacients or
anti-conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug or chemical product
or device capable of provoking abortion or preventing conception as classified by the Food and Drug Administration
shall be delivered or sold to any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the
population problem should be considered as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate population growth.
67
Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that "family planning will be
made part of a broad educational program; safe and effective means will be provided to couples desiring to space or
limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,
68
dated December 8, 1972, which, among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a component
of demographic management, to one centered on the promotion of public health, particularly, reproductive
health.
69
Under that policy, the country gave priority to one's right to freely choose the method of family planning to be
adopted, in conformity with its adherence to the commitments made in the International Conference on Population and
Development.
70
Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for women, including
family planning and sex education.
71

The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable pace.
From a paltry number of just over 27 million Filipinos in 1960, the population of the country reached over 76 million in
the year 2000 and over 92 million in 2010.
72
The executive and the legislative, thus, felt that the measures were still not
adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor and the
marginalized, access and information to the full range of modem family planning methods, and to ensure that its
objective to provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH Law
made it mandatory for health providers to provide information on the full range of modem family planning methods,
supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on
contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception program, the very essence of the RH Law, violates the right to
health of women and the sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that
"the status quo ante - the situation prior to the passage of the RH Law - must be maintained."
73
It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic Act
No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the Petitioners find deplorable and repugnant under the RH Law is the
role that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to the barangay officials
in the remotest areas of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of family planning
methods and the implementer of the program by ensuring the widespread dissemination of, and universal access to, a
full range of family planning methods, devices and supplies.
74

ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them to
the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve
some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative and
political wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"
75
and "characterized by an inordinate amount of transparency."
76
The OSG posits that
the authority of the Court to review social legislation like the RH Law by certiorari is "weak," since the Constitution
vests the discretion to implement the constitutional policies and positive norms with the political departments, in
particular, with Congress.
77
It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,
78
the remedies of certiorari and prohibition utilized by the petitioners are improper to assail the
validity of the acts of the legislature.
79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law has yet
to be enforced and applied to the petitioners, and that the government has yet to distribute reproductive health devices
that are abortive. It claims that the RH Law cannot be challenged "on its face" as it is not a speech-regulating measure.
80

In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature, it
is often sought that the Court temper its exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the separation of powers is a fundamental
principle in our system of government, which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction and is
supreme within its own sphere.
81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;
82
(b) the executive power shall be vested in the President of the Philippines;
83
and (c) the judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law.
84
The Constitution has
truly blocked out with deft strokes and in bold lines, the allotment of powers among the three branches of
government.
85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes upon
the courts proper restraint, born of the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.
86

It has also long been observed, however, that in times of social disquietude or political instability, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
87
In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-equal branch done within its sphere of
competence and authority, but at the same time, allows it to cross the line of separation - but only at a very limited and
specific point - to determine whether the acts of the executive and the legislative branches are null because they were
undertaken with grave abuse of discretion.
88
Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion
results.
89
The Court must demonstrate its unflinching commitment to protect those cherished rights and principles
embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no constitutional violations of any sort, then,
it has no more authority of proscribing the actions under review.
90
This is in line with Article VIII, Section 1 of the
Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,
91
the Court has unequivocally declared that certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of law.
This ruling was later on applied in Macalintal v. COMELEC,
92
Aldaba v. COMELEC,
93
Magallona v. Ermita,
94
and
countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution
is upheld. " Once a "controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control between
them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of intervention - of
the judiciary in that balancing operation.
95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just any
and every claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review is
limited by four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must possess
locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.
96

Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because the
RH Law has yet to be implemented.
97
They claim that the questions raised by the petitions are not yet concrete and ripe
for adjudication since no one has been charged with violating any of its provisions and that there is no showing that
any of the petitioners' rights has been adversely affected by its operation.
98
In short, it is contended that judicial review
of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.
99
The rule is that courts
do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable-definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and
a denial thereof, on the other; that is, it must concern a real, tangible and not merely a theoretical question or issue.
There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.
101
A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to
be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately
in danger of sustaining some direct injury as a result of the act complained of
102

In The Province of North Cotabato v. The Government of the Republic of the Philippines,
103
where the constitutionality
of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the issues raised as there was yet no concrete act performed that
could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the Court ruled that the fact of the
law or act in question being not yet effective does not negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken judicial
duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable
controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute.
104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of retirement and other benefits. They must,
at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law
cannot be challenged "on its face" as it is not a speech regulating measure.
105

The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment.
106
These include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances.
107
After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of
expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the application of facial challenges to strictly penal statues,
108
it has
expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and
other fundamental rights.
109
The underlying reason for this modification is simple. For unlike its counterpart in the U.S.,
this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
110
Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to
life, speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation,
the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or controversy,
would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,
111
and the government has yet to distribute reproductive health devices that are abortive.
112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the challenged governmental act.
113
It requires a personal stake in the
outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional questions.
114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality of a
statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of
the statute grounded on a violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.
115

Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest."
116

In Coconut Oil Refiners Association, Inc. v. Torres,
117
the Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of judicial review. In the first Emergency
Powers Cases,
118
ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge, still,
the Court has time and again acted liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski v. PAGCOR:
119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence
on the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar, the
issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution are
being imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.
120
Suffice it to state that most of the petitions are praying for injunctive reliefs and so
the Court would just consider them as petitions for prohibition under Rule 65, over which it has original jurisdiction.
Where the case has far-reaching implications and prays for injunctive reliefs, the Court may consider them as petitions
for prohibition under Rule 65.
121

One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of
the Constitution,
122
prescribing the one subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional standards of due process by concealing its
true intent - to act as a population control measure.
123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure,
124
and that
the concepts of "responsible parenthood" and "reproductive health" are both interrelated as they are inseparable.
125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the reduction of the country's population. While it claims to save
lives and keep our women and children healthy, it also promotes pregnancy-preventing products. As stated earlier, the
RH Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with access to information
on the full range of modem family planning products and methods. These family planning methods, natural or modem,
however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of the
law, however, covers the dissemination of information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH
Law. It is, in fact, the central idea of the RH Law.
126
Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation.
127
As earlier explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."
128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. The rule
is sufficiently complied with if the title is comprehensive enough as to include the general object which the statute seeks
to effect, and where, as here, the persons interested are informed of the nature, scope and consequences of the proposed
law and its operation. Moreover, this Court has invariably adopted a liberal rather than technical construction of the
rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right
to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and the right to choose and make decisions
for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the average
person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which
is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act,
or in omitting any expression or indication of the real subject or scope of the act."
129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section 12,
Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives effectively sanctions
abortion.
130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient;
thus, sanctioning contraceptives that take effect after fertilization and prior to implantation, contrary to the intent of the
Framers of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies, medical
research shows that contraceptives use results in abortion as they operate to kill the fertilized ovum which already has
life.
131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction of
contraceptive use contravenes natural law and is an affront to the dignity of man.
132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to certify
that the product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.
133

Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the
prohibition of abortion. They contend that the RH Law does not violate the Constitution since the said law emphasizes
that only "non-abortifacient" reproductive health care services, methods, devices products and supplies shall be made
accessible to the public.
134

According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the medical field, it is asserted that the Court afford deference
and respect to such a determination and pass judgment only when a particular drug or device is later on determined as
an abortive.
135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law specifically provides that only contraceptives
that do not prevent the implantation of the fertilized ovum are allowed.
136

The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.
137

Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the laws
of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution
provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent vintage.
From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and devices which
prevent fertilization,
138
to the promotion of male vasectomy and tubal ligation,
139
and the ratification of numerous
international agreements, the country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however, the use of
contraceptives and other family planning methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive health.
140

This has resulted in the enactment of various measures promoting women's rights and health and the overall promotion
of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and
R.A. No. 9710, otherwise known as the "The Magna Carta of Women" were legislated. Notwithstanding this paradigm
shift, the Philippine national population program has always been grounded two cornerstone principles: "principle of
no-abortion" and the "principle of non-coercion."
141
As will be discussed later, these principles are not merely grounded
on administrative policy, but rather, originates from the constitutional protection expressly provided to afford
protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical
issue that should not be decided, at this stage, without proper hearing and evidence. During the deliberation, however,
it was agreed upon that the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development
of moral character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen because, amazingly, there are quarters who
have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving the
view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female
ovum by the male sperm.
142
On the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.
143

Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:
144

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well-
settled principle of constitutional construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers
and the people mean what they say. Verba legis non est recedendum - from the words of a statute there should be no
departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional
provisions are couched express the objective sought to be attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the people, in whose consciousness it should ever be present as an
important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable zygote;
the fertilization that results in a new entity capable of developing into a being like its parents.
145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the male
spermatozoon resulting in human life capable of survival and maturation under normal conditions.
146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing Corporation
v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,
147
it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even
a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,
148
Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has respect
for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and promoting
fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child.
149

Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is
human life. x x x.
150

xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is the
fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this upon fertilization. Secondly, as it takes
in these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no question that biologically the fertilized ovum
has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the nuclei
of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23 chromosomes of
the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only - and I repeat, only in human
cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive and
human, then, as night follows day, it must be human life. Its nature is human.
151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization" was
not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific
phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase "from
the moment of conception."
152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without
specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission, he
would leave it to Congress to define when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So we should not give any doubt to Congress, too.
153

Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I
was going to raise during the period of interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact that some of the so-called contraceptives deter the rooting of the
ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to travel towards the
uterus and to take root. What happens with some contraceptives is that they stop the opportunity for the fertilized
ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives should be
banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are already
considered abortifacient.
154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State shall
provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the Framers of the
Constitution intended that to prohibit Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision on
the right to life, recognized that the determination of whether a contraceptive device is an abortifacient is a question of
fact which should be left to the courts to decide on based on established evidence.
155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and
thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female ovum,
and those that similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally
permissible.
As emphasized by the Framers of the Constitution:
x x x x x x x x x
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only to
protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free
world. I would just like to be assured of the legal and pragmatic implications of the term "protection of the life of the
unborn from the moment of conception." I raised some of these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain contraceptives which are already being encouraged at this point in time. Is
that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet
unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already been fertilized from taking route to the uterus. So if we say "from
the moment of conception," what really occurs is that some of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.
156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the
oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.
157

Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.
158

Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied Health
Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a spermatozoon enters an
ovum and forms a viable zygote."
159

It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo develops."
160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),
161
used by medical schools in the Philippines, also
concludes that human life (human person) begins at the moment of fertilization with the union of the egg and the
sperm resulting in the formation of a new individual, with a unique genetic composition that dictates all developmental
stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of male
and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a sequence of
events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the
fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a
new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a
human being."
162

The authors of Human Embryology & Teratology
163
mirror the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23 chromosomes present in each pronucleus results
in 46 chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is formed. The
embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that conception, and thus human life, begins. Human lives are sacred
from the moment of conception, and that destroying those new lives is never licit, no matter what the purported good
outcome would be. In terms of biology and human embryology, a human being begins immediately at fertilization and
after that, there is no point along the continuous line of human embryogenesis where only a "potential" human being
can be posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human
being commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent with
the factual evidence, and independent of any specific ethical, moral, political, or religious view of human life or of
human embryos.
164

Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly,
following the intention of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human
organism and that the life of a new human being commences at a scientifically well-defined moment of conception, that
is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.
165
According to him, "fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."
166
Citing a letter of the WHO, he wrote that "medical
authorities confirm that the implantation of the fertilized ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."
167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to the
beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.
168
Implantation has been conceptualized only for convenience
by those who had population control in mind. To adopt it would constitute textual infidelity not only to the RH Law
but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-based
divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the 1986
Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the protection of the unborn
from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-abortion
decision passed by the Supreme Court.
169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the Court
has opted not to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly mandates
that protection be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law is replete
with provisions that embody the policy of the law to protect to the fertilized ovum and that it should be afforded safe
travel to the uterus for implantation.
170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which penalizes
the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal relations. The elements of reproductive
health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether
or not to have children; the number, spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the information and means to do so; and to attain
the highest standard of sexual health and reproductive health: Provided, however, That reproductive health rights do
not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of the
RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using the
word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any drug or
device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the
FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first kind), which, as
discussed exhaustively above, refers to that which induces the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the
mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum must be protected the moment it becomes existent - all the
way until it reaches and implants in the mother's womb. After all, if life is only recognized and afforded protection from
the moment the fertilized ovum implants - there is nothing to prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but that instance of implantation is not the
point of beginning of life. It started earlier. And as defined by the RH Law, any drug or device that induces abortion,
that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included
or to be included in the EDL must have a certification from the FDA that said product and supply is made available on
the condition that it is not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its expertise, cannot
fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot be present in every
instance when the contraceptive product or supply will be used.
171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however, the
Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and mean that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product and supply is
made available on the condition that it cannot be used as abortifacient." Such a construction is consistent with the
proviso under the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device, or
health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum
or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as
determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those that
primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb.
172

This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR
173
must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the insertion of
the qualifier "primarily" will pave the way for the approval of contraceptives which may harm or destroy the life of the
unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With such qualification in
the RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known
effect is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism.
174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as abortive.
With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared policy
against abortion, the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL will not
only be those contraceptives that do not have the primary action of causing abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules must be consistent
with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR should be
declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives
that have the primary effect of being an abortive would effectively "open the floodgates to the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."
175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life
must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary and
the inclusion of the same in the regular purchase of essential medicines and supplies of all national hospitals.
176
Citing
various studies on the matter, the petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who never use them. They point out that the
risk is decreased when the use of contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial infarction.
177
Given the definition of "reproductive
health" and "sexual health" under Sections 4(p)
178
and (w)
179
of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex lives.
180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of women.
181

The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among
them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake
appropriate health, manpower development, and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and
self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly express
the contrary, the provisions of the Constitution should be considered self-executory. There is no need for legislation to
implement these self-executing provisions.
182
In Manila Prince Hotel v. GSIS,
183
it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated
as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify
the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the
contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule
would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to
pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and
contraceptives per se.
184
In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited when they are dispensed by a prescription of a duly licensed by a
physician - be maintained.
185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729.
There is no intention at all to do away with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the effectivity of the RH Law will not lead to
the unmitigated proliferation of contraceptives since the sale, distribution and dispensation of contraceptive drugs and
devices will still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate
safeguards to ensure the public that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without
prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive Drugs
and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and for Other Purposes" are not repealed by the RH Law and the
provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly governed
by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is
by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the purpose
of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not
more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of whatever
nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy, duly established in accordance with
the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension of
the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.
186
[Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate
local government bodies to plan and implement this procurement and distribution program. The supply and budget
allotments shall be based on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug
store or pharmaceutical company and that the actual dispensation of these contraceptive drugs and devices will done
following a prescription of a qualified medical practitioner. The distribution of contraceptive drugs and devices must
not be indiscriminately done. The public health must be protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and
devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to their use.
187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the RH
Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it being
the agency tasked to ensure that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intra-
uterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the National
Drug Formulary in the EDL by using the mandatory "shall" is to be construed as operative only after they have been
tested, evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third
sentence concerning the requirements for the inclusion or removal of a particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination by the FDA that they are in fact safe,
legal, non-abortifacient and effective family planning products and supplies. There can be no predetermination by
Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are medical practitioners who essentially claim that
their beliefs prohibit not only the use of contraceptives but also the willing participation and cooperation in all things
dealing with contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital chastity, it is
contrary to the good of the transmission of life, and to the reciprocal self-giving of the spouses; it harms true love and
denies the sovereign rule of God in the transmission of Human life."
188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their taxes
on contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious beliefs.
189

2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking reproductive health services to another
medical practitioner who would be able to provide for the patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing he refuses to do without violating his/her religious beliefs.
190

They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly limited,
because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking reproductive
health services and information - no escape is afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against
a patient seeking reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to in Section 14 of the
RH Law, are also not recognize.
191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter to
another health care service provider is still considered a compulsion on those objecting healthcare service providers.
They add that compelling them to do the act against their will violates the Doctrine of Benevolent Neutrality. Sections 9,
14 and 1 7 of the law are too secular that they tend to disregard the religion of Filipinos. Authorizing the use of
contraceptives with abortive effects, mandatory sex education, mandatory pro-bono reproductive health services to
indigents encroach upon the religious freedom of those upon whom they are required.
192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking reproductive
health care services to another provider infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings. While the right to act on one's belief
may be regulated by the State, the acts prohibited by the RH Law are passive acts which produce neither harm nor
injury to the public.
193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious freedom
because it mentions no emergency, risk or threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human development, health, education, information,
choice and to make decisions according to religious convictions, ethics, cultural beliefs and the demands of responsible
parenthood) are being threatened or are not being met as to justify the impairment of religious freedom.
194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH Law even if it contravenes their religious beliefs.
195
As the
assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions,
the petitioners claim that the RH Law forcing them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief.
196
They point out
that the RH Law only seeks to serve the public interest by providing accessible, effective and quality reproductive
health services to ensure maternal and child health, in line with the State's duty to bring to reality the social justice
health guarantees of the Constitution,
197
and that what the law only prohibits are those acts or practices, which deprive
others of their right to reproductive health.
198
They assert that the assailed law only seeks to guarantee informed choice,
which is an assurance that no one will be compelled to violate his religion against his free will.
199

The respondents add that by asserting that only natural family planning should be allowed, the petitioners are
effectively going against the constitutional right to religious freedom, the same right they invoked to assail the
constitutionality of the RH Law.
200
In other words, by seeking the declaration that the RH Law is unconstitutional, the
petitioners are asking that the Court recognize only the Catholic Church's sanctioned natural family planning methods
and impose this on the entire citizenry.
201

With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee of
religious freedom, it being a carefully balanced compromise between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that of the citizen who needs access to information and who
has the right to expect that the health care professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the rights of others.
202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration,
location and impact.
203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object to any information received on account
of their attendance in the required seminars are not compelled to accept information given to them. They are completely
free to reject any information they do not agree with and retain the freedom to decide on matters of family life without
intervention of the State.
204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years and note the general acceptance of the
benefits of contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has
allowed these various religious, cultural, social and racial groups to thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the religious people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be, and to whom they
call for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and
establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under
the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of
morality.
205
Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987 constitutions
contain benevolent and accommodating provisions towards religions such as tax exemption of church property, salary
of religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs of the
church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II, Section 6 of
the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect.1wphi1 Generally, the State cannot
meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It cannot favor
one religion and discriminate against another. On the other hand, the church cannot impose its beliefs and convictions
on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely believes
that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and the
Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in affairs among religious groups."
206
Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.
207
Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the
outside manifestations of one's belief and faith.
208
Explaining the concept of religious freedom, the Court, in Victoriano
v. Elizalde Rope Workers Union
209
wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion
within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to
protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden.
(Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single goal-
to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the establishment
clause prohibits government from inhibiting religious belief with rewards for religious beliefs and practices. In other
words, the two religion clauses were intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices.
210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:
211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom
of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or
doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to
travel.
212

The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with proper
regard to the rights of others. It is "subject to regulation where the belief is translated into external acts that affect the
public welfare."
213

Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of benevolent
neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor)
214
where it was stated "that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution."
215
In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion
may be allowed, not to promote the government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. "The purpose of accommodation is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion."
216
"What is sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."
217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is proper.
218
Underlying
the compelling state interest test is the notion that free exercise is a fundamental right and that laws burdening it should
be subject to strict scrutiny.
219
In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the established institutions of society and law.
The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the
law. The case also used, albeit inappropriately, the "compelling state interest" test. After Victoriano , German went back
to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case of A merican
Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was inappropriate to the
facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the "clear
and present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where conduct is involved for
the whole gamut of human conduct has different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This right is sacred
for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail between the state's interest and religious
liberty, reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert
which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding
the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be
preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or one's
participation in the support of modem reproductive health measures is moral from a religious standpoint or whether
the same is right or wrong according to one's dogma or belief. For the Court has declared that matters dealing with
"faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts."
220
The jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have authority to determine whether the RH Law contravenes the
guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and make decisions for themselves
in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
[Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is the
foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family planning,
including effective natural and modern methods which have been proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research standards such as those registered and
approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the State shall also provide funding support to promote
modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they desire
with due consideration to the health, particularly of women, and the resources available and affordable to them and in
accordance with existing laws, public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance with
their religious convictions and cultural beliefs, taking into consideration the State's obligations under various human
rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the priority needs of women, the poor, and the
marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the family
and children. It is likewise a shared responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion, it also limits what
religious sects can or cannot do with the government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the policies
of any one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The demarcation line
between Church and State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.
221

The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections 7, 23
and 24 thereof. The said provisions commonly mandate that a hospital or a medical practitioner to immediately refer a
person seeking health care and services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the
compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom would warrant an exemption from
obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state interest in
the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been burdened.
As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other entices him to a clean conscience yet
under the pain of penalty. The scenario is an illustration of the predicament of medical practitioners whose religious
beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction
of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on
modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he
has been compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the inviolability of the human conscience.
222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes
pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive. They
cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally guilty
if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in his mind.
223
While the RH Law seeks to
provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.
224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of
the strong view that the religious freedom of health providers, whether public or private, should be accorded primacy.
Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the principle of non-
coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and Wood
v. NHS Greater Glasgow and Clyde Health Board,
225
that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate, supervise or support staff on their
labor ward who were involved in abortions.
226
The Inner House stated "that if 'participation' were defined according to
whether the person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."
227

While the said case did not cover the act of referral, the applicable principle was the same - they could not be forced to
assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a religious
group and health care service providers. Considering that Section 24 of the RH Law penalizes such institutions should
they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3), the Court deems that it must
be struck down for being violative of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation
to Section 24, considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary
228
it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."
10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction, a law tends to be toothless and ineffectual. Nonetheless,
when what is bartered for an effective implementation of a law is a constitutionally-protected right the Court firmly
chooses to stamp its disapproval. The punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on a patient because incompatible
religious beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital, head
nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be equally
protective of the religious belief of public health officers. There is no perceptible distinction why they should not be
considered exempt from the mandates of the law. The protection accorded to other conscientious objectors should
equally apply to all medical practitioners without distinction whether they belong to the public or private sector. After
all, the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The
mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in occasions or gatherings or in more permanent
aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of the press, assembly and
petition, and freedom of association.
229

The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also because
it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any conflict
between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is replete
with provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you affirmed this
with qualifications. Now, you have read, I presumed you have read the IRR-Implementing Rules and Regulations of the
RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious objectors, skilled
health professionals cannot be considered conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.
230

Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the subject provisions,
were able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory character of the law is the least intrusive
means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent in
the establishment of a more compelling state interest that would rationalize the curbing of a conscientious objector's
right not to adhere to an action contrary to his religious convictions. During the oral arguments, the OSG maintained
the same silence and evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this duty to
refer to a conscientious objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary health
legislation involving professionals. This is not a free speech matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and their patients.
231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the conscientious
objectors, however few in number. Only the prevention of an immediate and grave danger to the security and welfare
of the community can justify the infringement of religious freedom. If the government fails to show the seriousness and
immediacy of the threat, State intrusion is constitutionally unacceptable.
232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.
233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived scenario
of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother decides to adopt or use the information,
product, method or supply given to her or whether she even decides to become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive use is immediate and occurs the moment a patient seeks
consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's religious
freedom, the respondents have failed to demonstrate "the gravest abuses, endangering paramount interests" which
could limit or override a person's fundamental right to religious freedom. Also, the respondents have not presented any
government effort exerted to show that the means it takes to achieve its legitimate state objective is the least intrusive
means.
234
Other than the assertion that the act of referring would only be momentary, considering that the act of referral
by a conscientious objector is the very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the State to achieve its objective without
violating the rights of the conscientious objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with open willingness and motivation. Suffice it
to say, a person who is forced to perform an act in utter reluctance deserves the protection of the Court as the last
vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women," amply cater
to the needs of women in relation to health services and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's
life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in the provision
for comprehensive health services, due respect shall be accorded to women's religious convictions, the rights of the
spouses to found a family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without prejudice to the
primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually transmitted diseases, HIV,
and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors shall be
provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal
interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and medical
standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In addition,
healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in the
prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with appropriate,
timely, complete, and accurate information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the development of moral
character and the right of children to be brought up in an atmosphere of morality and rectitude for the
enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x x."
235
He, however,
failed to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008,
236
although there was still no RH Law at that time. Despite such revelation,
the proponents still insist that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance of
emergency procedures. In these situations, the right to life of the mother should be given preference, considering that a
referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the forced
referral clause that we are objecting on grounds of violation of freedom of religion does not contemplate an
emergency."
237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try to
save both lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of Representatives
of the principle of double-effect wherein intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child and the life of the mother, the doctor is
morally obliged always to try to save both lives. However, he can act in favor of one (not necessarily the mother) when
it is medically impossible to save both, provided that no direct harm is intended to the other. If the above principles are
observed, the loss of the child's life or the mother's life is not intentional and, therefore, unavoidable. Hence, the doctor
would not be guilty of abortion or murder. The mother is never pitted against the child because both their lives are
equally valuable.
238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be resorted
to even if is against the religious sentiments of the medical practitioner. As quoted above, whatever burden imposed
upon a medical practitioner in this case would have been more than justified considering the life he would be able to
save.
Family Planning Seminars
Anent the requirement imposed under Section 15
239
as a condition for the issuance of a marriage license, the Court finds
the same to be a reasonable exercise of police power by the government. A cursory reading of the assailed provision
bares that the religious freedom of the petitioners is not at all violated. All the law requires is for would-be spouses to
attend a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not even mandate the type
of family planning methods to be included in the seminar, whether they be natural or artificial. As correctly noted by
the OSG, those who receive any information during their attendance in the required seminars are not compelled to
accept the information given to them, are completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total development.
240

The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact, one
article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and programs
that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to
wreck the family as a solid social institution. It bars the husband and/or the father from participating in the decision
making process regarding their common future progeny. It likewise deprives the parents of their authority over their
minor daughter simply because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground
of lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between the husband and the wife as they affect issues intimately
related to the founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall defend the "right
of the spouses to found a family." One person cannot found a family. The right, therefore, is shared by both spouses. In
the same Section 3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the
spouse who would undergo a procedure, and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the family, all
for the sake of reducing the population. This would be a marked departure from the policy of the State to protect
marriage as an inviolable social institution.
241

Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the State, which has not shown any compelling interest, the State should
see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna Carta for
Women," provides that women shall have equal rights in all matters relating to marriage and family relations, including
the joint decision on the number and spacing of their children. Indeed, responsible parenthood, as Section 3(v) of the
RH Law states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to
betray the constitutional mandate to protect and strengthen the family by giving to only one spouse the absolute
authority to decide whether to undergo reproductive health procedure.
242

The right to chart their own destiny together falls within the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction, the
right to privacy was first recognized in Marje v. Mutuc,
243
where the Court, speaking through Chief Justice Fernando,
held that "the right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."
244
Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,
245
where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school
system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life
and substance. Various guarantees create zones of privacy."
246

At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a procedure,
is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services, whether natural or artificial: Provided,
That minors will not be allowed access to modern methods of family planning without written consent from their
parents or guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame
population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own parents.
The State cannot replace her natural mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support
of the Government."
247
In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the
right of parents is superior to that of the State.
248
[Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right
of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest can justify a
state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or
with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services, on one hand, and access to the
reproductive health procedures and modern family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to protect
both the life of the mother as that of the unborn child. Considering that information to enable a person to make
informed decisions is essential in the protection and maintenance of ones' health, access to such information with
respect to reproductive health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental guidance and control over their
minor child and assist her in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage and
that of the spouse should not be put at grave risk simply for lack of consent. It should be emphasized that no person
should be denied the appropriate medical care urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)
249
should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for the two exceptions discussed above,
and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions effectively force educational institutions
to teach reproductive health education even if they believe that the same is not suitable to be taught to their
students.
250
Citing various studies conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of society;
and promotion of promiscuity among the youth.
251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of instruction that will be used to educate the
adolescents and whether they will contradict the religious beliefs of the petitioners and validate their apprehensions.
Thus, considering the premature nature of this particular issue, the Court declines to rule on its constitutionality or
validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support of
the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become productive members of society. Notably,
it places more importance on the role of parents in the development of their children by recognizing that said role shall
be "primary," that is, that the right of parents in upbringing the youth is superior to that of the State.
252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the youth.
Indeed, the Constitution makes mention of the importance of developing the youth and their important role in nation
building.
253
Considering that Section 14 provides not only for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and skills in self-protection against discrimination; sexual
abuse and violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and
Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the petitioners. By imposing such a condition, it
becomes apparent that the petitioners' contention that Section 14 violates Article XV, Section 3(1) of the Constitution is
without merit.
254

While the Court notes the possibility that educators might raise their objection to their participation in the reproductive
health education program provided under Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among those who may be
held punishable but does not define who is a "private health care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health information under Section 23(a)(l), or from rendering
reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but
at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.
255
Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to other parts of the
statute. It is a rule that every part of the statute must be interpreted with reference to the context, that is, every part of it
must be construed together with the other parts and kept subservient to the general intent of the whole enactment.
256

As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must be
made to Section 4(n) of the RH Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and accredited
and devoted primarily to the maintenance and operation of facilities for health promotion, disease prevention,
diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or
a midvvife; (3) public health worker engaged in the delivery of health care services; or (4) barangay health worker who
has undergone training programs under any accredited government and NGO and who voluntarily renders primarily
health care services in the community after having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care
service provider," should not be a cause of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. Clearly, subject to the qualifications and exemptions
earlier discussed, the right to be exempt from being obligated to render reproductive health service and modem family
planning methods, necessarily includes exemption from being obligated to give reproductive health information and to
render reproductive health procedures. The terms "service" and "methods" are broad enough to include the providing
of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect information regarding reproductive health programs and services.
For ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect
information regarding programs and services on reproductive health including the right to informed choice and access
to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide
with the truth.
257
On the other hand, the word "knowingly" means with awareness or deliberateness that is
intentional.
258
Used together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead or
misrepresent the public as to the nature and effect of programs and services on reproductive health. Public health and
safety demand that health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive health, their right must be tempered with the
need to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it
discriminates against the poor because it makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive health among the poor, the RH Law introduces
contraceptives that would effectively reduce the number of the poor. Their bases are the various provisions in the RH
Law dealing with the poor, especially those mentioned in the guiding principles
259
and definition of terms
260
of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive health education
program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,
261
the Court had the occasion to expound on the concept of equal
protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by
the express terms of a statue or by its improper execution through the state's duly constituted authorities." "In other
words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all
the departments of the government including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is
not limited to existing conditions only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly treated,
both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care program is not a violation
of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the
distinct necessity to address the needs of the underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is, therefore, no merit to the contention that the RH Law only seeks to
target the poor to reduce their number. While the RH Law admits the use of contraceptives, it does not, as elucidated
above, sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of the population growth rate is
incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose conditions
upon couples who intend to have children. While the petitioners surmise that the assailed law seeks to charge couples
with the duty to have children only if they would raise them in a truly humane way, a deeper look into its provisions
shows that what the law seeks to do is to simply provide priority to the poor in the implementation of government
programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive health education
program under Section 14, suffice it to state that the mere fact that the children of those who are less fortunate attend
public educational institutions does not amount to substantial distinction sufficient to annul the assailed provision. On
the other hand, substantial distinction rests between public educational institutions and private educational institutions,
particularly because there is a need to recognize the academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity towards the teaching of reproductive health
education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono reproductive health services, actually amounts
to involuntary servitude because it requires medical practitioners to perform acts against their will.
262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as forced
labor analogous to slavery, as reproductive health care service providers have the discretion as to the manner and time
of giving pro bono services. Moreover, the OSG points out that the imposition is within the powers of the government,
the accreditation of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but a privileged burdened with conditions as it directly involves
the very lives of the people. A fortiori, this power includes the power of Congress
263
to prescribe the qualifications for
the practice of professions or trades which affect the public welfare, the public health, the public morals, and the public
safety; and to regulate or control such professions or trades, even to the point of revoking such right altogether.
264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion.
265
A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive healthcare service providers to render pro
bono service. Other than non-accreditation with PhilHealth, no penalty is imposed should they choose to do otherwise.
Private and non-government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all. Clearly, therefore,
no compulsion, force or threat is made upon them to render pro bono service against their will. While the rendering of
such service was made a prerequisite to accreditation with PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious objectors
are exempt from this provision as long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a
supply or product is to be included in the Essential Drugs List (EDL).
266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency to
evaluate, register and cover health services and methods. It is the only government entity empowered to render such
services and highly proficient to do so. It should be understood that health services and methods fall under the gamut
of terms that are associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to
the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers,
and non-consumer users of health products to report to the FDA any incident that reasonably indicates that
said product has caused or contributed to the death, serious illness or serious injury to a consumer, a patient, or
any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or not
registered with the FDA Provided, That for registered health products, the cease and desist order is valid for
thirty (30) days and may be extended for sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement the risk management plan which is
a requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary powers and functions to make it effective.
Pursuant to the principle of necessary implication, the mandate by Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are safe includes "service" and "methods." From the declared policy
of the RH Law, it is clear that Congress intended that the public be given only those medicines that are proven
medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in Echagaray v. Secretary of Justice,
267
as
follows:
The reason is the increasing complexity of the task of the government and the growing inability of the legislature to
cope directly with the many problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest and the time, to provide the required
direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers devolved
to local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17 vested upon the
LGUs the duties and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government
units shall likewise exercise such other powers and discharge such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities that have
already been devolved upon them from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities, programs and services.
268
Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and other
facilities, programs and services funded by the National Government under the annual General Appropriations
Act, other special laws, pertinent executive orders, and those wholly or partially funded from foreign sources,
are not covered under this Section, except in those cases where the local government unit concerned is duly
designated as the implementing agency for such projects, facilities, programs and services. [Emphases
supplied]
The essence of this express reservation of power by the national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.
269
A complete relinquishment of central government powers on the matter
of providing basic facilities and services cannot be implied as the Local Government Code itself weighs against it.
270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care
facilities,
271
the hiring of skilled health professionals,
272
or the training of barangay health workers,
273
it will be the
national government that will provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed as making the availability of these services mandatory for the
LGUs. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the ARMM.
The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in the relationship between the national and
the regional governments.
274
Except for the express and implied limitations imposed on it by the Constitution, Congress
cannot be restricted to exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.
275

11 - Natural Law
With respect to the argument that the RH Law violates natural law,
276
suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and
theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.
277
Unless, a natural right has been transformed into a written law, it cannot serve as a basis to
strike down a law. In Republic v. Sandiganbayan,
278
the very case cited by the petitioners, it was explained that the
Court is not duty-bound to examine every law or action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving rights
inherent to man where no law is applicable.
279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion in
any shape or form. It only seeks to enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to medically-
safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors of society cannot be trampled upon in
pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious freedom is a recognition
that man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose its
beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As such,
everyone should be tolerant and open-minded so that peace and harmony may continue to reign as we exist alongside
each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address is
the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is
not the large population but the unequal distribution of wealth. Even if population growth is controlled, poverty will
remain as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European and Asian
countries, which embarked on such a program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their economy. These young workers represent a
significant human capital which could have helped them invigorate, innovate and fuel their economy. These countries
are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with incentives, is
failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied workers. What would happen if the country would be weighed
down by an ageing population and the fewer younger generation would not be able to support them? This would be
the situation when our total fertility rate would go down below the replacement level of two (2) children per woman.
280

Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like the
penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as enacted
by the lawmaking body. That is not the same as saying what the law should be or what is the correct rule in a given set
of circumstances. It is not the province of the judiciary to look into the wisdom of the law nor to question the policies
adopted by the legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature to enact remedial legislation if that would be necessary
in the premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the delicate
function of interpreting the law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to the judicial task of
saying what the law is, as enacted by the lawmaking body.
281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729)
and the reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of
the assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities
and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients,
not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health facility
which is conveniently accessible; and b) allow minor-parents or minors who have suffered a miscarriage access
to modem methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as
they punish any healthcare service provider who fails and or refuses to disseminate information regarding
programs and services on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual,
not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of
parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as
they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or
life-threatening case, as defined under Republic Act No. 8344, to another health care service provider within the
same facility or one which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as
they punish any public officer who refuses to support reproductive health programs or shall do any act that
hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona reproductive
health service in so far as they affect the conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section
4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.
SO ORDERED.
CASE DIGEST:
IMBONG VS. OCHOA

KEY TAKE-AWAY: The Reproductive Health Law is a consolidation and enhancement of existing reproductive laws. It
seeks to enhance the population control program of the government in order to promote public welfare. However,
when coercive measures are found within the law, provisions must be removed or altered in order to ensure that it does
not defy the Constitution by infringing on the rights of the people.

PONENTE: MENDOZA, J.

CONSOLIDATION OF 14 CASES NAMELY:
DATE/GR
NO/SCRA
PETITIONER RESPONDENT
April 8, 2014,
G.R. No.
204819
James M. Imbong Lovely-Ann C.
Imbong, for themselves and in behalf of
their minor children, Lu Cia Carlos
Imbong and Bernadette Carlos Imbong
and Magnificat Child Development
Center, Inc., a domestic, privately-owned
educational institution
Hon. Paquito N. Ochoa, Jr., Executive
Secretary; Hon. Florencio B. Abad, Secretary,
Department Of Budget And Management;
Hon. Enrique T. Ona, Secretary, Department
Of Health; Hon. Armin A. Luistro, Secretary,
Department Of Education, Culture And
Sports; and Hon. Manuela. Roxas II,
Secretary, Department Of Interior and Local
Government
GR. No.
204934
ALLIANCE FOR THE FAMILY
FOUNDATION PHILIPPINES, INC.
[ALFI], represented by its President,
Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B. Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas,
Arturo M. Gorrez & Marietta C. Gorrez,
Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria
Felisa S. Bautista, Desiderio Racho &
Traquilina Racho, F emand Antonio A.
Tansingco & Carol Anne C. Tansingco
for themselves and on behalf of their
minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco,
Miguel Femando C. Tangsingco, Carlo
Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta
& Eileen Z. Araneta for themselves and
on behalf of their minor children, Ramon
Carlos Z. Araneta & Maya Angelica Z.
Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on
behalf of their minor children, Renz
Jeffrey C. Castor, Joseph Ramil C. Castor,
John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z.
Racho for themselves and on behalf of
their minor children Margarita Racho,
Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred
R. Racho & Francine V. Racho for
themselves and on behalf of their minor
children Michael Racho, Mariana Racho,
Rafael Racho, Maxi Racho, Chessie
Racho & Laura Racho, Spouses David R.
Racho & Armilyn A. Racho for
themselves and on behalf of their minor
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary,
Department of Social Welfare and
Development, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning
Secretary and NEDA Director-General, THE
PHILIPPINE COMMISSION ON WOMEN,
represented by its Chairperson, Remedios
lgnacioRikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented
by its President Eduardo Banzon, THE
LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President
Alfonso Umali, THE LEAGUE OF CITIES OF
THE PHILIPPINES, represented by its
President Oscar Rodriguez, and THE
LEAGUE OF MUNICIPALITIES OF THE
PHILIPPINES, represented by its President
Donato Marcos,

child Gabriel Racho, Mindy M. Juatas
and on behalf of her minor children
Elijah Gerald Juatas and Elian Gabriel
Juatas, Salvacion M. Monteiro, Emily R.
Laws, Joseph R. Laws & Katrina R. Laws
GR No.
204957

TASK FORCE FOR FAMILY AND LIFE
VISAYAS, INC. and VALERIANO S.
AVILA,

HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA,
Secretary, Department of Education; and
HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local
Government
GR No.
204988

SERVE LIFE CAGAYAN DE ORO CITY,
INC., represented by Dr. Nestor B.
Lumicao, M.D., as President and in his
personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of
the school board and in his personal
capacity, ROSEMARIE R. ALENTON,
IMELDA G. IBARRA, CPA, LOVENIAP.
NACES, Phd., ANTHONY G. NAGAC,
EARL ANTHONY C. GAMBE and
MARLON I. YAP,
OFFICE OF THE PRESIDENT, SENATE OF
THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N.
OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary,
Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary,
Department of Health; HON. ARMIN A.
LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents
GR No.
205003

EXPEDITO A. BUGARIN, JR.,

OFFICE OF THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, HON.
SENATE PRESIDENT, HON. SPEAKER OF
THE HOUSE OF REPRESENTATIVES and
HON. SOLICITOR GENERAL
GR No.
205043

EDUARDO B. OLAGUER and THE
CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES,

DOH SECRETARY ENRIQUE T. ONA, FDA
DIRECTOR SUZETTE H. LAZO, DBM
SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS
SECRETARY ARMIN A. LUISTRO
GR No.
205138

PHILIPPINE ALLIANCE OF
XSEMINARIANS, INC. (PAX), herein
represented by its National President,
Atty. Ricardo M. Ribo, and in his own
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
behalf, Atty. Lino
E.A. Dumas, Romeo B. Almonte,
Osmundo C. Orlanes, Arsenio Z. Menor,
Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael
Eugenio 0. Plana, Bienvenido C. Miguel,
Jr., Landrito M. Diokno and Baldomero
Falcone,

Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social
Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National
Economic and Development Authority,
HON. SUZETTE H. LAZO, DirectorGeneral,
Food and Drugs Administration, THE
BOARD OF DIRECTORS, Philippine Health
Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission
on Women,
GR No.
205478

REYNALDO J. ECHAVEZ, M.D.,
JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND
JOSEPHINE MILLADO-LUMITAO,
M.D.,
collectively known as Doctors For Life,
and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS
ANTONIO PALAD, WILFREDO JOSE,
CLAIRE NAVARRO, ANNA COSIO,
and GABRIEL DY LIACCO collectively
known as Filipinos For Life,
HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD,
Secretary of the Department of Budget and
Management; HON. ENRIQUE T. ONA,
Secretary of the Department of Health; HON.
ARMIN A. LUISTRO, Secretary of the
Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the
Department of Interior and Local
Government,

GR No.
205491

SPOUSES FRANCISCO S. TATAD AND
MARIA FENNY C. TATAD & ALA F.
PAGUIA, for themselves, their Posterity,
and the rest of Filipino posterity
OFFICE OF THE PRESIDENT
of the Republic of the Philippines,

GR No.
205720

PRO-LIFE PHILIPPINES
FOUNDATION, Inc., represented by
Loma Melegrito, as Executive Director,
and in her personal capacity, JOSELYN
B. BASILIO, ROBERT Z. CORTES,
ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES,
RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG,
RUFINO L. POLICARPIO III,

OFFICE OF THE PRESIDENT, SENATE OF
THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N.
OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary,
Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS
II, Secretary, Department of Interior and
Local Government
GR No.
206355

MILLENNIUM SAINT FOUNDATION,
INC., ATTY. RAMON PEDROSA, ATTY.
CITA BORROMEOGARCIA,
STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING
OFFICE OF THE PRESIDENT, OFFICE OF
THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION,

GR No.
207111
JOHN WALTER B. JUAT, MARY M.
IMBONG, ANTHONY VICTORIO B.
LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R.
ROXAS and LOTA LAT-GUERRERO,

HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON.
MANUEL A. ROXAS II, Secretary,
Department of Interior and Local
Government
GR No.
207172
COUPLES FOR CHRIST
FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-
SARMIENTO, AND SPOUSES LUIS
FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N.
RODRIGO.

HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary,
Department of Interior and Local
Government, Respondents
GR No.
207563
ALMARIM CENTI TILLAH and
ABDULHUSSEIN M. KASHIM,

HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA,
Secretary of the Department of Health, and
HON. ARMIN A. LUISTRO,Secretary of the
Department of Budget and Management

FACTS
Petition: to declare provisions of Republic Act No. 10354 as unconstitutional
Factual Antecedents
December 21, 2012: Congress enacted RA No. 10354 also known as the Responsible Parenthood and
Reproductive Health Act of 2012 (RH LAW)
The presidents imprimatur and support for the said law lead to a range of petitions against the law leading
to iuris controversy in court. Petitions for certiorari and prohibition were placed by numerous parties. All in
all, 14 petitions and 2 petitions-in-intervention were filed.
March 15, 2013: the RH-IRR or enforcement of the law took place
March 19, 2013: After deliberating the issues and arguments raised, the court issued Status Quo Ante Order
(SQAO) which lead to a 120 day halt on the implementation of the legislation
Due to further arguments and debates from opposing parties, the SQAO was extended until further orders
of the court last July 16, 2013
Statute Involved:
Republic Act 10354, The Responsible Parenthood and Reproductive Health Act of 2012
Position of Petitioner:
o Petitioners claim that the provisions of RA 10354 are unconstitutional as they violate the rights to life, to
health, to freedom of expression and speech, to the privacy of families, to academic freedom, to due
process of law, to equal protection, and against involuntary servitude. They also intrude on the
autonomy of local governments and the ARMM, and violate natural law. Furthermore, they claim that
Congress delegation of authority to the FDA in determining which should be included in the EDL is
invalid.
Position of Respondent
There is no actual case or controversy and, therefore, the issues are not yet ripe for judicial
determination
Some petitioners lack standing to question the RH Law
The petitions are essentially petitions for declaratory relief over which the Court has no original
jurisdiction.
ISSUES
Procedural
o Whether or not the Court may exercise its power of judicial review
o Whether or not there is an actual case or controversy
o Whether the Court may apply facial challenge
o Whether or not the petitions are praying for declaratory relief
o Whether the petitions violate the One Subject/One Title Rule
Substantive
o Whether or not the RH Law is unconstitutional on the grounds that it violates
Right to Life
Right to Health
Freedom of Religion and the Right to Free Speech
The Family
Freedom of Expression and Academic Freedom
Due Process
Equal Protection
Involuntary Servitude
Autonomy of Local Governments/ARMM
Natural Law
o Whether or not Congress delegation of authority to the FDA in determining which should be included
in the EDL is valid
HELD
Procedural
o Whether or not the court may exercise its power of judicial review - YES
While the Court may not pass upon questions of wisdom, justice or expediency of the RH Law, it
may do so where an attendant unconstitutionality or grave abuse of discretion results. The
following requisites for judicial review were met: (a) there mustbe an actual case or controversy; (b)
the petitioners must possess locus standi; ( c) the question of constitutionality must be raised at the
earliest opportunity; and ( d) the issue of constitutionality must be the lis mota of the case
o Whether or not there is an actual case or controversy YES
Considering that the RH Law and its implementing rules have already taken effect and that
budgetary measures to carry out the law have already been passed, it is evident that the subject
petitions present a justiciable controversy. As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a
duty of the Judiciary to settle the dispute.
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service
with forfeiture of retirement and other benefits.
o Whether the Court may apply facial challenge YES
The scope of application of facial challenges extends to the regulation of free speech, but also those
involving religious freedom, and other fundamental rights.
Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court has authority to take cognizance of
these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny.
o Whether or not Locus Standi applies YES
Regardless of whether the petitioners are directly injured of affected by the RH Law or not, the
Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the
public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest." The RH Law falls under
transcendental importance as it drastically affects the constitutional provisions on the right to life
and health, the freedom of religion and expression and other constitutional rights.
o Whether or not the petitions are praying for declaratory relief - YES
Most of the petitions are praying for injunctive reliefs, not declaratory reliefs, and so the Court
would just consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.
o Whether the petitions violate the One Subject/One Title Rule NO
In a textual analysis of the various provisions of the law, both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the
population growth. Thus, the Court finds no reason to believe that Congress had the intention to
deceive the public regarding the contents of the said law.
Substantive
o Whether or not the RH Law is unconstitutional on the grounds that it violates
Right to Life NO
Constitution intended that 1.) conception to refer to the time of fertilization and 2.) the
protection of the unborn upon said fertilization
Not all contraceptives are to be banned (only those that kill a fertilized ovum)
Contraceptives that prevent union of sperm and egg are thus permissible
It is the intended by the framers of the 1987 Constitution to prevent the enacting of a law that
legalizes abortion.
RH law prohibits abortion
RH law recognizes that abortion is a crime
RH law prohibits abortifacients
Right to Health - NO
With the provisions of RA 4729 still in place, the status quo on the sale of contraceptives is
maintained and the Court believes that there are adequate measures that ensure that the public
has access to contraceptives that have been determined safe following testing, evaluation, and
approval by the FDA
Freedom of Religion and the Right to Free Speech NO and YES
RH law does not violate guarantee of religious freedom via the state-sponsored procurement of
contraceptives, which contravene the religious beliefs of the people including the petitioners.
This is because in doing so, the state would be adhering to one religions, making a de facto
state religion which is contrary to religious freedom.
The separation of Church and State shall be inviolable
There limits to the exercise of religious freedom (compelling state interest test)
Benevolent neutrality
RH law does not violate the guarantee of religious freedom by requiring would-be spouses, as
a condition for the issuance of a marriage license, to attend a seminar on parenthood, family
planning, breastfeeding and infant nutrition (sec.7, 23, 24)
However, RH Law violates the guarantee of religious freedom by compelling medical health
practitioners, hospitals, and health care providers, under pain of penalty, to refer patients to
other institutions despite their conscientious objections
The Family - YES
Section 23(a)(2)(i) of the RH Law, which needs only the consent of the spouse undergoing the
provision in order to undergo reproductive procedures intrudes into martial privacy and
autonomy and goes against the constitutional safeguards for the family as the basic social
institution. Not only that, but the exclusion of parental consent in cases where a minor
undergoing a procedure is already a parent or has had a miscarriage (Section 7 of the RH
Law) is also anti-family and violates Article II, Section 12 of the Constitution, which declares
that the rearing of children by parents is a natural right.
Freedom of Expression and Academic Freedom UNDECIDED
The court decided that making a ruling on Section 14 of the RH Law, which mandates the State
to provide Age-and Development-Appropriate Reproductive Health Education, is premature.
The Department of Education has not yet created a curriculum on age-appropriate
reproductive health education, thus the constitutionality of the specifics in such a curriculum
still cannot be determined. The exclusion of private educational institutions from the
mandatory RH education program under Section 14 is valid. There is a need to recognize the
academic freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive health
education.
Due Process - NO
The definitions of several terms pinpointed by the petitioners in the RH Law are not vague.
Private health care institution = private health care service provider.
service and methods are also broad enough to include giving information and
performing medical procedures, so hospitals run by religious groups can be exempted.
incorrect information connotes a sense of malice and ill motive to mislead the public.
Equal Protection - NO
It is pursuant to Section 11, Article XIII of the Constitution, which states that the State shall
prioritize the needs of the underprivileged, sick elderly, disabled, women, and children and
that it shall endeavor to provide medical care to paupers.
Involuntary Servitude - NO
The State has the power to regulate the practice of medicine in order to ensure the welfare of
the public. Not only that, but Section 17 only encourages private and non-government RH
service providers to give pro bono service; they do not incur penalties if they refuse.
Conscientious objects are exempt if their religious beliefs do not allow them to provide the said
services.
Autonomy of Local Governments/ARMM NO
The RH Law does not infringe upon the autonomy of local governments. Under paragraph (c)
of Section 17, unless a local government unit (LGU) is particularly designated as the
implementing agency, it has no power over a program for which funding has been provided by
the national government under the annual General Appropriations Act, even if the program
involves the delivery of basic services within the jurisdiction of the LGUs. Not only that, but
LGUs are merely encouraged and not compelled to provide RH services. Provision of these
services are not mandatory. Lastly, Article III, Sections 6, 10, and 11 of RA 9054 deor the
Organic Act of the ARMM merely outlines the powers that may be exercised by the regional
government and does not indicate the States abdication to create laws in the name of public
welfare.
Natural Law disregarded
Natural law, according to the Court, is not recognized as proper legal basis for making
decisions
o Whether or not Congress delegation of authority to the FDA in determining which should be
included in the EDL is valid- YES
Under RA 3720, the FDA, being the primary and sole premiere and only agency that ensures the
safety of food and medicines available to the public, has the power and competency to evaluate,
register and cover health services and methods
Final Ruling
o Petitions partially granted. The RA 10354 is declared constitutional, and Status Quo Ante Order lifted
with respect to provisions of RA 10354 that have been declared as constitutional. However, the
following provisions and their corresponding provisions in the RH-IRR have been declared
unconstitutional:
Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious
group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to another health facility which is conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to modem methods of family planning without
written consent from their parents or guardian/s;
Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any healthcare service provider who fails and or refuses to disseminate
information regarding programs and services on reproductive health regardless of his or her
religious beliefs.
Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;
Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.
Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient
not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another
health care service provider within the same facility or one which is conveniently accessible
regardless of his or her religious beliefs;
Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who refuses to support reproductive health programs or
shall do any act that hinders the full implementation of a reproductive health program, regardless
of his or her religious beliefs;
Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation;
Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for
contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.



Dissenting Opinion
Leonen, J.

I. Preliminary Considerations
None of the petitions properly present an actual case or controversy which deserves the exercise of judicial
review. The consolidated petitions do not provide the proper venue to decide on fundamental issues. The law
in question is needed social legislation.
An actual case or controversy is one which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice.
No locus standi. Petitioners, by no stretch of the imagination, cannot be representative of the interests of the
entire Filipino nation. Not all Filipinos are Roman Catholics. Not all Filipinos are from the Visayas. Certainly
not all Filipinos have a common interest that will lead to a common point of view on the constitutionality of the
various provisions of the RH law.

II. Substantive Discussions
The court cannot make a declaration on the beginning of life. Any declaration on this issue will be fraught with
contradictions. Even the Constitutional Commissioners were not in full agreement; hence, the use of the word
conception rather than fertilized ovum in Article II, Section 12 of the Constitution. There were glaring
factual inaccuracies peddled during their discussion.
The Constitutional Commission deliberations show that it is not true that the issue of when life begins is
already a settled matter. There are several other opinions on this issue. The Constitutional Commissioners adopted
the term conception rather than fertilized ovum.
Insisting that we can impose, modify or alter rules of the Food and Drug Administration is usurpation of the
executive power of control over administrative agencies. It is a violation of the principle of separation of
powers, which recognizes that [e]ach department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere. The system of checks and balances only allows
us to declare, in the exercise of our judicial powers, the Food and Drugs Administrations acts as violative of the
law or as committed with grave abuse of discretion. Such power is further limited by the requirement of actual
case or controversy.
The petitions have failed to present clear cases when the provisions for conscientious objection would truly
amount to a violation of religion. They have not distinguished the relationship of conscience and specific
religious dogma. They have not established religious canon that conflict with the general provision of Sections
7, 17 and 23 of the law. The comments in intervention in fact raise serious questions regarding what could be
acceptable Catholic doctrine on some issues of contraception and sex as only for procreation.

Separate Concurring Opinion
Carpio, J.

I. Preliminary Considerations

The court is not competent to declare when human life begins. The issue with regards to this must be settled
within the scientific and medical community.

II. Substantive Discussions

RA No. 10354 protects the ovum upon its fertilization (without actually saying that life begins here). The issue
then, of whether life begins during fertilization or when the ovum plants itself on the uterus wall, is covered as
this protects at both stages.

Although the law does not provide a definition of conception, it has provisions that embody the policy of the
state to protect the travel of the fertilized ovum to the uterus wall. The law states that it will provide means
which do not prevent implantation of a fertilized ovum as determined by the Food and Drug Administration.


Separate Concurring Opinion
Brion, J.

I. Preliminary Considerations
The petitions are ripe for judicial review. The petitions allege actions by the legislature and by the executive that
lie outside the contemplation of the Constitution. A controversy exists appropriate for this Court's initial
consideration of the presence of grave abuse of discretion: and consequent adjudication if the legislative and
executive actions can be so characterized.

II. Substantive Discussions
While the RH Law generally protects and promotes the unborns right to life, its Section 9 and its IRR fail in
their fidelity to the Constitution and to the very terms of the RH Law itself. It fails to adopt the principle of
double effect under Section 12, Article II of the 1987 Constitution.
The Court should formulate guidelines on what the government can actually procure and distribute under the
RH law, consistent with its authority under this law and Section 12, Article II to achieve the full protection the
Constitution envisions.
The attack on Section 14s constitutionality is premature because that the lack of an implementing curriculum
by the Department of Education makes it premature to rule on constitutionality. The court cannot determine yet
how parental rights will be affected since the specifics of what would be taught under the RH education
program do not yet exist.
The RH Laws implementation could have political and economic consequences. It could also produce social
consequences by ushering in behaviors and perceptions about sex, marriage, and family that are vastly different
(in a negative way) from the norm.
Section 23(a) (l) of the RH Law is an unconstitutional subsequent punishment of speech. It has overreached the
permissible coverage of regulation on the speech of doctors and other health professionals. The existing
information dissemination program found in the RH law is sufficient in providing information about available
reproductive health services and programs, and the existing regulatory framework for their practice already
sufficiently protects against such negligence and malpractice. Furthermore, the said section can create a chilling
effect for those in the profession.

TANGONAN VS CRUZ PANO
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-45157 June 27, 1985
MELY TANGONAN, petitioner,
vs.
HON. JUDGE ERNANI CRUZ PAO, CAPITOL MEDICAL CENTER SCHOOL OF NURSING, THELMA N.
CLEMENTE, SENAMAR L. PURA and ADELAIDA SULIT, respondents.
Genaro B. Laya for petitioner.
Lorenzo P. Miravite for private respondents.

CUEVAS, J.:
Alleging that the Hon. respondent Judge
1
acted without or in excess of jurisdiction and/or with grave abuse of
discretion in dismissing
2
her petition for mandamus
3
petitioner comes to Us thru the instant petition for "Certiorari
with Preliminary Mandatory Injunction with Damages"
4
raising the following issues
1. Is his Honor guilty of grave abuse of discretion when he rendered the questioned decision without any formal
hearing ?
2. Is the extraordinary remedy of mandamus available to an aggrieved party who was refused enrolment without
lawful ground . . . expelled by private respondents without affording her the opportunity to be heard . . . and excluded
from enrolling, while allowing others similarly situated, to enroll? and
3. Finally, is the decision of the respondent court conformable to law and the evidence?
Hereunder are the pertinent antecedents.
Petitioner Mely Tangonan was temporarily admitted in May 1975 at the Capitol Medical School of Nursing for the
school year 1975-1976, as a second year student subject to the submission of a sealed "Honorable Dismissal" and a
"Transcript of Records" valid for transfer. Her admission in said school was on probationary basis having merely
submitted an unsealed "Honorable Dismissal" and a "Transcript of Records" not valid for transfer, on her promise that
such records will be immediately replaced with official acceptable records. She enrolled for two (2) semesters. In her
second semester, she flunked in Psychiatric Nursing but was allowed to cross-enroll in said subject in Summer 1976 at
the De Ocampo Memorial School. Obviously, petitioner had enrolment problems at the De Ocampo Memorial School
for she was reported to have attempted to bribe Dean Florencia Pagador of the said school so that her name could be
included in the list of Summer 1976 enrolled students. This is confirmed by petitioner's letter of apology which reads as
follows
M
a
y

1
4
,

1
9
7
6
Mrs. Florencia Pagador
Dean of De Ocampo Memorial
School of Nursing,
Nagtahan St., Sta. Mesa Blvd.
Sampaloc, Manila
Dear Ma'm:
I am awfully sorry for offering you P50,00 just to help me. I hope and pray for your forgiveness. I wish
to express my sincere apology. And please allow me to get enrolled officially,
Thank you.
Since
rely
yours
,
(Sgd)
MISS
MEL
Y
TAN
GON
AN
On June 14, 1976, petitioner applied for re-enrolment at respondent school (Capitol Medical Center School of Nursing)
but was referred to the Guidance Counsellor for the following reasons
a. On the replacement of her admission records when she first enrolled in May 1976;
b. On the results of her cross-enrolment for summer 1976; and
c. For explanation of a reported charge (supported by a Xerox copy of her apology to Dean Pagador) of attempting to
bribe Dean Pagador.
Because of her refusal and/or failure, to submit the required explanation, the matter of her re-admission was submitted
to the school's Board of Admission. Deliberating on petitioner's case, the Board of Admission, in a Meeting held on June
25, 1976,
5
made the following recommendation
RECOMMENDATION:
In view of the foregoing findings, the Board of Admission declared her an undesirable student who
should not be readmitted to CMCSN but without prejudice to her being given transfer credentials to
another school.
SUBMITTED BY:
(Sgd) Benita Cortez
Minutes of the Board's deliberation on the matter which brought about said recommendation runs thus
AGENDA: Case of Mely Tangonan, nursing student who is seeking re-admission to the School of
Nursing.
Findings: During the deliberation of the Board, the following findings were discussed:
A. ACADEMIC PERFORMANCE I
1. Admitted to the school on probation because of a failing mark in Communicable Disease Nursing at
the PCC-Mary Johnston Hospital School of Nursing. EXHIBIT A)
2. Failed in Psychiatric Nursing during the second semester of School Year 1975-1976. EXHIBIT B)
B. CLINICAL PERFORMANCE
1. Average in the clinical performance.
2. Did not complete clinical experience required in summer. Stopped reporting in the clinical area
without notifying the clinical instructor or coordinator. (EXHIBIT C)
3. had frequent absences in the clinical area.
C. ATTITUDES AND BEHAVIORS
1. Did not seek enrolment or notify school registrar of a desire to enroll during the scheduled
registration dates for seniors. Came to enroll daring the week after regular classes. (EXHIBIT D)
2. Tried to bribe Mrs. Pagador, Dean, College of Nursing, De Ocampo Memorial School with P50.00
(Fifty Pesos) when she was not yet officially enrolled when it was already the end of summer- classes.
EXHIBIT E)
3. Violated rules and regulations of the school.(EXHIBIT F)
4. Refused to write a letter to the Board of Admission requesting for re-admission and apologizing for
what she did against the Doms and Dean Pagador which has brought embarrasment to CMCSN She
was asked to make this letter to the Principal through a telephone instruction to Mrs. Benita Cortez.
Miss Tangonan allegedly stated that she would write the letter only if she is given the assurance by the
Principal or by the Chairman of the Board of Trustees that she would be allowed to enroll.
Informed of the said board's decision disallowing her re-admission, petitioner lodged a complaint against the school
before the Department of Education, Regional Office No. 4. A conference was accordingly conducted between petitioner
and respondent school's authorities in the presence of Regional Director Manuel in the course of which, petitioner
agreed to transfer to another school. But instead of transferring to another school, petitioner filed a petition for
mandamus
6
before the Court of First Instance of Rizal, Branch XVIII, presided over by respondent Judge, praying that
pending adjudication of the case on the merit, an ex-parte order be issued commanding respondents to admit petitioner
to enroll and attend classes upon payment of the prescribed fees; and after hearing, judgment be rendered requiring
respondents to pay damages and attorney's fees.
On July 27, 1977, the lower court issued the writ prayed for thereby "ordering respondents to admit petitioner on
probation basis for the school year 1976-1977 upon payment of the requisite fees and to attend classes" in respondent
school.
7

In their Answer
8
filed on August 5, 1976, respondents alleged among others, by way of special defenses
That the then petition states no cause of action because of the following circumstances:
a. Petitioner in the July 2, 1976 meeting at the office of Dr. Manuel already agreed to transfer to another
school and therefore without condition, foreclosed her right to enroll at respondent school;
b. There has been no demand after July 1, 1976 by petitioner directed to respondent school to admit her
as required in mandamus action;
c. To the extent, allowed by regulations and considering that petitioner was not yet an enrolled student,
and hence the school had no jurisdiction vet to conduct any formal investigation and compel her
presence therein, petitioner was given all the opportunity as early as June 14, 1976 to explain her side
which privilege she however refused to take advantage of, by being adamant in submitting any
explanation, oral or in writing to certain offenses made known to her, after having been compelled
continuously to do so at several levels by respondents.
That it is within the prerogative of private schools to deny admission of students for scholastic
insufficiency, incomplete scholastic records and commission of an offense, like attempt to bribe,
violating school regulations.
The issues having been joined, the case was calendared for pre-trial on September 22, 1976. The parties submitted their
respective pre-trial briefs.
9
A second pre-trial conference was held on October 7, 1976 on which date, the court a quo
issued the following Order
10

This is a second pre-trial conference of this case attended by the parties and their respective counsel.
Considering that this is a petition for mandamus so that the issue is limited to one of law, which is the
question of whether respondent school had any legal ground for refusing the petitioner, Mely
'Tangonan, and therefore there is no factual issue involved, the parties are directed to submit to this
Court not later than October 18, 1976, their respective affidavits and other pertinent documents they
may wish to submit, in addition to what already appears on record, 'This is however, without prejudice
to the continuous effort of both parties to settle this case. In this connection, the respondents have
undertaken to persuade some other nursing schools in Metro Manila to admit the petitioner. If the
plaintiff should agree to such admission to some other school, then this Court will dismiss this case if
appropriate manifestations are made prior to October 22, 1976, otherwise, the Court will decide the case
on the merits before October 22, 1976.
On October 8, 1976, respondents submitted a MANIFESTATION
11
stating therein that upon representations of
respondent Dra. Thelma Clemente, President and Chairman of the Board of Trustees of respondent school, the College
of Nursing of the Ortaez University was willing to accept petitioner for enrolment therein, subject to the approval of
the Department of Education and Culture.
On October 18, 1976, petitioner and respondents submitted their respective memoranda.
12

To the manifestation of respondent Thelma Clemente that Ortaez university was willing to admit petitioner, the latter
counter-manifested
13
that "in view of certain policies and requirements of Ortaez University she has no recourse but
to demand her admission in Capitol Medical Center School of Nursing.
On October 22, 1976, the lower court rendered its decision
14
dismissing the petition and dissolving the writ of
preliminary mandatory injunction earlier issued. Petitioner's motion for reconsideration
15
having been denied,
16
she
now comes before Us through the instant petition with the prayers aforesaid.
The petition is devoid of merit.
Petitioner's case in the court below is that of mandamus, to compel respondent to admit petitioner in its School of
Nursing. Under Rule 65, Section 3 of the Rules of Court, mandamus lies under any of the following cases: (1) against
any tribunal which unlawfully neglects the performance of an act which the law specifically enjoins as a duty; (2) in
case any corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty
resulting from an office, trust or station; and (3) in case any tribunal, corporation, board or person unlawfully excludes
another from the use and enjoyment of a right or office to which such other is legally entitled and there is no other
plain, speedy and adequate remedy in the ordinary course of law.
17

Mandamus is employed to compel the performance, when refused of a ministerial duly, this being its main objective. It
does not lie to require anyone to fulfill contractual obligations or to compel a course of conduct,
18
nor to control or
review the exercise of discretion.
19

On the part of the party petitioner,
20
it is essential to the issuance of a writ of mandamus that he should have a clear
legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. It
never issues in doubtful cases. While it may not be necessary that the duty be absolutely expressed, it must however, be
clear. If the writ will not issue to compel an official to do anything which it is not his duty to do or to which it is his duty
not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor
imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already
imposed.
21

In the case at bar, the petitioner has miserably failed to show a clear legal right to be admitted and be enrolled in
respondent's School of Nursing. As correctly held by the court a quo
Moreover assuming that respondent has a leal duty to enroll petitioner, it does not appear to this Court
that this is merely a ministerial duty; it is rather a duty involving the exercise of discretion. Every
school has a right to determine who are the students it should accept for enrolment. It has the right to
judge the fitness of students This is particularly true in the case of nursing students who perform
essential health services. Over and above its responsibility to petitioner is the responsibility of the
school to the general public and the community. This Court take judicial notice that nursing has
become a popular course because of the great demand for Filipino Nurses abroad, especially in the
United States. It is essential therefore that Nursing graduates who go abroad and become in a sense our
own ambassador should be highly qualified to perform their tasks. This is the responsibility of our
school and in the discharge of this responsibility, they certainly should be given the greatest latitude in
formulating their admission policies.
While petitioner questions the findings of respondent school as to her academic competence, the Court
cannot find any legal jurisdiction to interfere in the exercise of judgment of the school on this matter.
The Court finds it significant that even the Department of Education and Culture refused to intervene
in this case although the Court qqqin its Order of July 6, 1976 invited the Department to send its legal
officer as earlier mentioned, it is not disputed that petitioner agreed to transfer to another school during
a conference held at the Department.
The Court, after weighing all the facts, does not find that the p resent case is one that calls for the
application of Article 26 of the Declaration of Human Rights. She is not being prevented from
completing her Nursing course. There are many nursing schools in Metropolitan Manila where she can
finish her course. But she must enroll under the term, policies and conditions imposed by the schools,
rather than on her own terms. She is moreover free to enroll in any of these schools. Respondent has not
prevented her from doing so, and has offered to assist in such transfer.
On the contrary, respondent School appeared perfectly justified in refusing to admit petitioner in its School of Nursing.
Its refusal is sanctioned by law. Section 107 of the Manual Regulations for Private Schools considers academic
delinquency and violation of disciplinary regulations as valid grounds for refusing re-enrolment of a student. It is
incontrovertible that petitioner flunked in Psychiatric Nursing and that as of June 14, 1976, no official report of grades
for her summer course in the said subject was or could be submitted by her, Likewise, undisputed, (in fact admitted in
her letter of apology earlier quoted) is her involvement in an attempt to bribe the dean of the De Ocampo School of
Nursing. She was admitted in respondent's school merely on probation because she could not submit a sealed
"Honorable Dismissal" and "Transcript of Records" valid for transfer. On top of that she had a failing grade in
Communicable Disease Nursing at the PCC-Mary Johnston Hospital School of Nursing. Her records in respondent's
school also show that she did not complete the prescribed clinical experience required in summer. She stopped
reporting in the clinical area without notifying the clinical instructor or coordinator.
22

The foregoing notwithstanding, still petitioner would want Us to compel respondent school to enroll her despite her
failure to meet the standard policies and qualifications set by the school. To grant such relief would be doing violence to
the academic freedom enjoyed by the respondent school enshrined under Article XV, Section 8, Par. 2 of our
Constitution which mandates "that all institutions of higher learning shall enjoy academic freedom." This institutional
academic freedom includes not only the freedom of professionally qualified persons to inquire, discover, publish and
teach the truth as they see it in the field of their competence subject to no control or authority except of rational methods
by which truths and conclusions are sought and established in these disciplines, but also the right of the school or
college to decide for itself, its aims and objectives, and how best to attain themthe grant being to institutions of higher
learningfree from outside coercion or interference save possibly when the overriding public welfare calls for some
restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional provision is
not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify
its intent.
23

Elaborating further on the subject, this Court speaking thru that Eminent Constitutionalist then Mr. Justice now the
Hon. Chief Justice Enrique M. Fernando
24
held
Petitioner cannot compel by mandamus, the respondent to admit her into further studies in the Loyola
School of Theology. For respondent has no clear duly to admit the petitioner. The Loyola School of
Theology is a seminary for the priesthood. Petitioner is admittedly and obviously not studying for the
priesthood, she being a lay person and a woman. And even assuming ex gratia argumenti that she is
qualified to study for the priesthood, there is still no duty on the part of respondent to admit her to said
studies, since the school has clearly the discretion to turn down even qualified applicants due to
limitations of space, facilities, professors and optimum classroom size and component considerations.
No authorities were cited, respondent apparently being of the view that the law has not reached the
stage when the matter of admission to an institution of higher learning rests on the sole and
uncontrolled discretion of the applicant. There are standards that must be met. There are policies to be
pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology, what a student in the
position of the petitioner possesses is a privilege rather than a right. She cannot therefore satisfy the prime and
indispensable requisite of a mandamus proceeding. (Emphasis supplied)
Anent petitioner's submittal that respondent Judge acted without or in excess of jurisdiction or with grave abuse of
discretion in requiring the parties to submit memoranda or affidavits, instead of setting the case for a formal hearing on
the meritsWe find the same to be without merit. The very nature of the petition dictates its expeditious
determination. This is implicit from Section 7, Rule 65 of the Rules of Court which provides:
Section 7. Expediting Proceedings; Preliminary Injunction.The court in which the petition is filed, or a
judge thereof, may make orders expediting the proceedings, and may also grant a preliminary
injunction for the preservation of the rights of the parties pending such proceedings.
In the case at bar, it was evident that on the basis of the pleadings filed, the case did not call for the formal presentation
of evidence for purposes of determining whether or not respondent school could legally be ordered to admit petitioner
for the school year 1976-1977. Petitioner's position appeared clearly stated in her basic petition which was further
amplified by her verified Position Paper dated July 8, 1976: REPLY to the position paper of respondents dates July 23,
1976, petitioner's Trial Brief dated September 9, 1976 and Memorandum dated October 18, 1976. Upon the other hand,
respondents' stance appeared thoroughly spelled out in their position paper dated July 21, 1976, Answer dated August
5, 1976, respondent's Pre-Trial Brief dated September 20, 1976, Manifestation dated October 8, 1976 and Memorandum
dated October 18, 1976. Moreover, in the second pre-trial conference held on October 7, 1976, the lower court declared
that "the issue is one of law and that there is no factual issue involved. Hence, the parties were already required to
submit their memoranda and the pertinent documents in support of their respective stand. Petitioner did not question
the aforesaid order. Instead, she filed her memorandum. Consequently, she is now estopped from asserting that she
was denied the chance to present her evidence in a formal hearing.
At any rate, as discussed earlier, petitioner is not legally entitled to the issuance of the writ prayed for.
WHEREFORE, the instant petition is DISMISSED without pronouncement as to costs.
SO ORDERED.
CASE DIGEST:
Petitioner brought suit for mandamus to compel the Capitol Medical Center School of Nursing to admit her for the
academic year 1976-1977. She had been previously provisionally admitted the previous schoolyear, but she failed in
Psychiatric Nursing. She tried to take the course again in another school, but she was refused admission bec. she tried
to bribe the dean of the school. When she tried to re-enrol at the Capitol Medical Center, she was denied admission.
She brought the matter on certiorari. VV.

ISSUE: WON the school can be compelled by the court to re-admit petitioner. NO.

HELD: Any duty on the part of the school to enrol pet. is not merely a ministerial duty but one w/c involves the
exercise of discretion not compellable by Mandamus. Capitol was perfectly justified in refusing to admit her, its refusal
(being) sanctioned by the Manual of Regulations of Priv. Schools w/c considers academic delinquency & violation of
disciplinary regulations as valid grounds for refusing enrollment of a student. Adapted.
Further, to grant relief to pet. would be doing violence to the academic freedom enjoyed by Capitol enshrined
under Act. XV sec. 8 (2) Consti. Academic freedom includes not only the freedom of professionally qualified persons to
inquire, discover, publish & teach the truth as they see it in the field of their competence subject to no control or
authority except of rational methods by w/c truths and conclusions are sought and established in these disciplines, but
also the right of the school or college to decide for itself how best to attain them - the grant being to institutions of
higher learning - free from outside coercion or interference save possibly when the over-riding public welfare calls for
some restraint. It has a wide spread of autonomy certainly extending to the choice of students. Said constitutional
provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose
and nullify its intent

ALCUAZ VS PSBA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No.76353 September 29,1989
SOPHIA ALCUAZ, MA. CECILIA ALINDAYU, BERNADETTE ANG, IRNA ANONAS, MA. REMEDIOS
BALTAZAR, CORAZON BUNDOC, JOHN CARMONA, ANNA SHEILA DINOSO, RAFAEL ENCARNACION,
ANNALIZA EVIDENTE, FRANCIS FERNANDO, ZENNY GUDITO, EDGAR LIBERATO, JULIET LIPORADA,
GABRIEL MONDRAGON, JOSE MARIA PACKING, DOMINIC PETILLA, MA. SHALINA PITOY, SEVERINO
RAMOS, VICTOR SANTIAGO, CAROLINA SARMIENTO, FERDINAND TORRES, RICARDO VENTIGAN and
other students of the PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION (Q.C.) similarly
situated, petitioners,
vs.
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, Quezon City Branch (PSBA), DR. JUAN D. LIM, in his
capacity as President and Chairman of the Board of Trustees of PSBA, ATTY. BENJAMIN P. PAULINO, in his
capacity as Vice- President for Admission and Registration, MR. RUBEN ESTRELLA, in his capacity as Officer-in-
Charge, MR. RAMON AGAPAY, in his capacity as Director of the Office of Student Affairs and MR. ROMEO
RAFER, in his capacity as Chief Security of PSBA, respondents.
R E S O L U T I O N
PARAS, J.:
On May 2, 1988, this Court through its Second Division rendered a Decision in the instant case which prodded the
Intervenor Union (hereinafter referred to as the Union) to file a motion for reconsideration. Its argument hinges on the
pronouncement that
x x x. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers
are for one semester. It is thus evident that after the close of the first semester, the PSBA-QC no longer
has any existing contract either with the students or with intervening teachers. Such being the case,
charge of denial of due process is untenable. It is time-honored principle that contracts are respected as
the law between the contracting parties. x x x (p. 12, Decision, italics supplied).(p. 874-875, Rollo)
with the allegedly inevitable consequence of extenuating the pernicious practice of management to arbitrarily and
wantonly terminate teachers simply because their contracts of employment have already lapsed.
The motion likewise points out the fact that two of the faculty members, namely Mr. Asser (Bong) Tamayo, and Mr.
Rene Encarnacion, supposedly found guilty by the Investigating Committee headed by Mr. Antonio M. Magtalas (p.
342, Rollo), had been issued permanent appointments (not mere temporary contracts) by no less than the President of
the School himself. The appointment of Mr. Asser (Bong) Tamayo dated August 9, 1986 (p. 887, Rollo) can attest to this
claim.
It is on the basis of the foregoing that We hereby amend Our previous statements on the matter.
In a recent Decision,
1
this Court had the opportunity to quite emphatically enunciate the precept that full-time teachers
who have rendered three (3) years of satisfactory service shall be considered permanent (par. 75 of the Manual of
Regulations for Private Schools). Thus, having attained a permanent status, they cannot be removed from office except
for just cause and after due process.
Now applying the same principle in the case at bar, Mr. Asser (Bong) Tamayo having stayed in the Philippine School of
Business Administration, Quezon City Branch (PSBA, for brevity) for three and one-half (3 1/2) years (in a full-time
capacity) may be deemed a permanent faculty member provided, of course, the services rendered have been
satisfactory to the school. However, because the investigation showed that Mr. Tamayo had participated in the
unlawful demonstration, his services cannot be deemed satisfactory.
In the case of Mr. Rene Encarnacion, and Mr. Severino Cortes, Jr. who taught in PSBA for two and one-half (2 1/2) years
and one and one-half (1 1/2) years respectively, to them a permanent status cannot be accorded for failure to meet the
minimum requirement of three (3) years set by the aforementioned Manual of Regulations. Of equal importance, at this
point, is the fact that the letter of appointment had been extended only to Mr. Tamayo and not to Mr. Encarnacion,
neither to Mr. Cortes, Jr.
WHEREFORE, for the reasons adverted to hereinabove, the motion for reconsideration, except insofar as We have made
the aforementioned clarificatory statements about the tenure of full-time teachers and professors, is hereby DENIED.
In conclusion, We wish to reiterate that while We value the right of students to complete their education in the school or
university of their choice, and while We fully respect their right to resort to rallies and demonstrations for the redress of
their grievances and as a part of their freedom of speech and their right to assemble, still such rallies, demonstrations,
and assemblies must always be conducted peacefully, and without resort to intimidation, coercion, or violence.
Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert
freedom into degenerate license.
SO ORDERED.
CASE DIGEST:
FACTS:
In 1986, some PSBA students, herein petitioners Alcuaz et. al. staged demonstrations in the premises of the school. In
order for the demonstration to be settled, an agreement was entered into among others the regulations for the conduct
of protest action. In spite of the agreement, it was alleged that the petitioners, committed tumultuous and anarchic acts
within the premises of the school, fanned by the cooperation of the intervening professors, causing disruption of classes
to the prejudice of the majority students. The school took administrativesanctions upon them in view of their
participation in the demonstration. The students and the intervening professors were sanctioned. They were dismissed
and terminated.
ISSUE:
Whether or not there has been a deprivation of constitutional rights of expression and assembly and of due process of
law of the students who have been barred from re-enrollment.
HELD:
The Supreme Court held that due process in disciplinary cases such as the case at bar does not entail proceedings
and hearings similar to those prescribed for actions and proceedings in the courts of justice. The Court has already
recognized the right of the school to refuse re-enrollment of students for academic delinquency and violation of
disciplinaryregulations. In the schools administrative process, both students andprofessors were given three (3) days
from receipt of letter to explain in writing why the school should not take administrative sanction against them. With
respect to the academic activities of the students and the teaching loads of the teachers, the respondent school has
created new class for the petitioners and the intervening professors during and when the investigation was going on.
The Court then upheld that there is no denial of due process where all requirements of administrative due process were
met by the school and the students were given the opportunity to be heard and that the right of expression and
assembly are not absolute especially when parties are bound to certain rules under a contract.
UP VS AYSON
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88386 August 17, 1989
THE UNIVERSITY OF THE PHILIPPINES, THE UP BOARD OF REGENTS AND DEAN PATRICIO
LAZARO,petitioners,
vs.
HON. JUDGE RUBEN AYSON, Br. VI, RTC-BAGUIO CITY, AND UP COLLEGE BAGUIO HIGH SCHOOL
FOUNDATION, INC., REPRESENTED HEREIN BY ITS PRESIDENT AND CHAIRMAN OF THE BOARD,
SALVADOR VALDEZ, JR., respondents.

BIDIN, J.:
This is a petition for certiorari, with urgent prayer for the issuance of a temporary restraining order, seeking to annul
the Orders of respondent Judge dated May 25, 1989 and June 14, 1989 in Civil Case No. 1748-R entitled,"UP College
Baguio High School Foundation, Inc., et al,, v. The University of the Philippines, et al.," restraining petitioners from
implementing the decision of the Board of Regents to phase out the UP College Baguio High School (UPCBHS) and the
Memorandum of petitioner Dean Patricio Lazaro directing the principal of UPCBHS not to accept new incoming
freshmen for the school year 1989-1990.
Sometime in 1972, the UP Board of Regents approved the establishment of UPCBHS as an integral part of the graduate
program in education to serve, among others, as a laboratory and demonstration school for prospective teachers.
Provided, however, that UPCBHS must be self-supporting and should not entail any subsidy from the budget of the
UP.
In 1978, the Board of Regents provided for the establishment of a Division of Education in UP College Baguio (UPCB)
which shall be composed of a Department of Professional Education and a High School Department. However, the
Department of Professional Education was never organized, although the High School Department has been in
continuous operation.
In 1981, the Committee to Review Academic Program recommended the abolition of the UPCBHS. In 1985, the Program
Review Committee likewise asked the UPCB to look into the viability of its secondary education program on account of
limited financial resources plus the fact that UPCBHS failed to serve as a laboratory school for teacher training program
as UPCB does not offer programs in Education. Subsequently, various discussions were held on the proposed phase-out
of the UPCBHS.
On January 30,1989, the UP Board of Regents approved the proposed phase-out of UPCBHS on the grounds,inter alia,
that only an insignificant number of UPCBHS graduates qualified for admission and actually enrolled in UPCB and that
UPCBHS is not serving as a laboratory or demonstration school for prospective teachers much less a self-supporting
unit. Subsequently, petitioner Dean Patricio Lazaro issued a memorandum directing the UPCBHS Principal not to
accept new incoming high school freshmen for the school year 1989- 1990.
On May 25,1989, respondent UP College Baguio High School Foundation Inc., represented by its president, filed a
petition with the Regional Trial Court of Baguio, Br. VI, presided by respondent Judge against herein petitioners, for
Injunction with preliminary preventive and mandatory injunction with prayer for the issuance of a temporary
restraining order, docketed as Civil Case No. 1748-R, alleging among others, that the decision of the UP Board of
Regents to phase out the UPCBHS is without legal basis and unconstitutional.
Thereafter, respondent Judge issued the assailed Orders restraining petitioners from implementing the Board's decision
to phase out UPCBHS and the memorandum of Dean Patricio Lazaro. Petitioners' motion to dismiss Civil Case No.
1748-R was denied by respondent Judge.
Hence, this petition.
On June 27,1989, the Court issued a Temporary Restraining Order enjoining the implementation of the assailed orders
of respondent Judge.
Petitioners contend, among other things, that the decision of the UP Board of Regents to phase out the UPCBHS is an
exercise of academic freedom guaranteed by the Constitution (Art. XIV, Sec. 5, par. 2).lwph1.t
Respondents, on the other hand, take issue not with the exercise of academic freedom but rather on the right to quality
education (Art. XIV, Sec. 1) and free public secondary education (Art. XIV, Sec. 2, par. 2) mandated by the Constitution
and Rep. Act No. 6655, otherwise known as "Free Public Secondary Education Act of 1988." Respondents ' contend that
the abolition of the UPCBHS would be violative of said rights.
The conflict of the present petition pits the concept of academic freedom as against the right to free public secondary
education. Art. XIV, Section 2, [2] of the Constitution, provides: "The State shall establish and maintain a system of free
public education in the elementary and high school levels. Without limiting the right of natural parents to rear their
children, elementary education is compulsory for all children of school age." On the other hand, Art. XIV, Section 5 [2],
provides: "Academic freedom shall be enjoyed in all institutions of higher learning."
Is secondary public education demandable in an institution of higher learning such as the University of the Philippines?
We rule in the negative.
It is beyond cavil that the UP, as an institution of higher learning, enjoys academic freedomthe institutional kind.
In Garcia v. The Faculty Admission Committee, Loyola School of Theology (68 SCRA 277 [1975]), the Court had occasion to
note the scope of academic freedom recognized by the Constitution as follows:
(I)t is to be noted that the reference is to the 'institutions of higher learning' as the recipients of this
boon. It would follow then that the school or college itself is possessed of such a right. It decides for
itself its aims and objectives and how best to attain them. It is free from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. This constitutional provision is not to be
construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose,
nullify its intent.
xxx xxx xxx
It is the business of a university to provide that atmosphere which is most conducive to speculation,
experiment and creation. It is an atmosphere in which there prevail the four essential freedom of a
universityto determine for itself on academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study"' (Emphasis supplied; citing Sinco, Philippine Political Law, 491,
(1962) and the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]).
Rep. Act No. 6655, otherwise known as the "Free Public Secondary Education Act of 1988," includes in its coverage state
colleges and universities (SCUs) offering secondary courses. Respondents cointend that since a secondary course is
being offered in UPCB, petitioners cannot unilaterally withdraw therefrom, otherwise, the said Act would be nothing
but a mere nullity for all other SCUs. Besides, respondents contend, petitioners already recognized the applicability of
Rep. Act No. 6655 when they implemented the same at the UPCBHS for School Year 1988-89 and petitioners' assertion
that UPCBHS was established only if it would be "self-supporting and should not entail any subsidy from the budget of
UP" is but a lame excuse.
At this juncture, it must be pointed out that UPCBHS was established subject to a number of conditionalities, e.g., it
must be self-supporting, it can serve as a feeder for the UP at Baguio, it can serve as a laboratory and demonstration
school for prospective teachers, failing in which the University can order its abolition on academic grounds, specially
where the purposes for which it was established was not satisfied.
Specifically, the University of the Philippines was created under its Charter (Act No. 1870 [1908], as amended) to
provide advanced tertiary education and not secondary education. Section 2 of said Act states that "the purpose of said
University shall be to provide advanced instruction in literature, philosophy, the sciences, and arts, and to give
professional and technical training."
It is apparent that secondary education is not the mandated function of the University of the Philippines; consequently,
the latter can validly phase out and/or abolish the UPCBHS especially so when the requirements for its continuance
have not been met, Rep. Act No. 6655 to the contrary notwithstanding. The findings of facts by the Board of Regents
which led to its decision to phase out the UPCBHS must be accorded respect, if not finality. Acts of an administrative
agency within their areas of competence must be casually overturned by the courts. It must be emphasized that
UPCBHS was established as a component of the tertiary level, i.e., the teacher/training program. As it turned out
however, the latter program was not viable in UPCB thereby necessitating the phasing out of UPCBHS, the rationale
being its reasons for existence no longer exists. On this score, UPCBHS differs from the other UP high schools in Iloilo,
Diliman, Cebu and Los Ba;os. The latter schools serve as laboratory schools for the College of Education in said areas,
whereas, in Baguio, there is no College of Education.
A careful perusal of Rep. Act No. 6655 could not lend respondents a helping hand either. Said Act implements the
policy of the State to provide free public secondary education (Sec. 4) and vests the formulation of a secondary public
education curriculum (Sec. 5), the nationalization of public secondary schools (Sec. 7) and the implementation of the
rules and regulations thereof (Sec. 9) upon the Secretary of the Department of Education, Culture and Sports
(DECS).lwph1.t Rep. Act No. 6655 complements Sec. 2 (2), Article XIV of the Constitution which mandates that the
State shall establish and maintain a system of free public secondary education. However, this mandate is not directed to
institutions of higher learning like UP but to the government through the Department of Education, Culture and Sports
(DECS). As an institution of higher learning enjoying academic freedom, the UP cannot be compelled to provide for
secondary education. However, should UP operate a high school in the exercise of its academic freedom, Rep. Act No.
6655 requires that the students enrolled therein "shall be free from payment of tuition and other school fees.
In view of the foregoing, respondents do not have a clear legal right to UP secondary education.
ACCORDINGLY, the Court Resolved to Grant the petition. The assailed Orders of respondent Judge dated May 25,
1989 and June 14, 1989 are hereby Set Aside and respondent Judge is ordered to Dismiss Civil Case No. 1748-R.
Secretary Lourdes Quisumbing of the Department of Education, Culture and Sports is requested to make arrangements
with the other high schools in Baguio City for purposes of accommodating the students herein affected. The temporary
restraining order issued is made permanent.
SO ORDERED.
CASE DIGEST:

FACTS:
Sometime in 1972, the UP Board of Regents approved the establishment of UPCBHS as an integral part of the graduate
program in education to serve, among others, as a laboratory and demonstration school for prospective teachers.
Provided, however, that UPCBHS must be self-supporting and should not entail any subsidy from the budget of the
UP.
On January 30, 1989, the UP Board of Regents, acting of the proposal of the Committee to Review Academic Program,
approved the proposed phase-out of UPCBHS on the grounds, inter alia, that only an insignificant number of UPCBHS
graduates qualified for admission and actually enrolled in UPCB and that UPCBHS is not serving as a laboratory or
demonstration school for prospective teachers much less a self-supporting unit. Subsequently, petitioner Dean Patricio
Lazaro issued a memorandum directing the UPCBHS Principal not to accept new incoming high school freshmen for
the school year 1989-1990.
ISSUE:
Is secondary public education demandable in an institution of higher learning such as the University of the Philippines?
HELD:
We rule in the negative. The University of the Philippines was created under its Charter (Act No. 1870 [1908], as
amended) to provide advanced tertiary education and not secondary education. Section 2 of said Act states that the
purpose of said University shall be to provide advanced instruction in literature, philosophy, the sciences, and arts, and
to give professional and technical training.
It is apparent that secondary education is not the mandated function of the University of the Philippines; consequently,
the latter can validly phase out and/or abolish the UPCBHS especially so when the requirements for its continuance
have not been met.
As an institution of higher learning enjoying academic freedom, the UP cannot be compelled to provide for secondary
education. However, should UP operate a high school in the exercise of its academic freedom, Rep. Act No. 6655
requires that the students enrolled therein shall be free from payment of tuition and other school fees.
OPOSA VS FACTORAN

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their
parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents
CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors
and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented
by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA,
minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor,
represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her
parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS
IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents
ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all
surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA
ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO
and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by
their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI
QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors,
represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the
RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the
purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment
and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners.
1
The complaint
2
was instituted as a taxpayers' class
suit
3
and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full
benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous
that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn."
4
Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."
5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and
unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which
is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished
since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the
country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per
cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this
balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of
which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the
endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation
of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-
billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the
course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph
6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and
their successors who may never see, use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage
and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and
efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth.
6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two
(2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of
action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.
7
In the said order,
not only was the defendant's claim that the complaint states no cause of action against him and that it raises a
political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would
result in the impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this
Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case.
8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on
the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful
environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that
the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that they may still be revoked by the State when the public
interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a
political question which should be properly addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without
due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25)
years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due
notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777
as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We
hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general
interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests.
Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as
well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.
9
Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably accessible to the present as well as future
generations.
10
Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony
for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that
right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised
and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent
Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short
of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or
a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by
the fundamental law.
11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific
legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which,
for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less
than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of
which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not
even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first
and protect and advance the second, the day would not be too far when all else would be lost not only for the present
generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the
following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution
air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with
it the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance.
12

The said right implies, among many other things, the judicious management and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the conservation, development and utilization of the country's natural
resources,
13
then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192,
14
Section 4 of which
expressly mandates that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may
be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future generations
as well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our
natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,
15
specifically
in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources, consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible to the different segments of
the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our
natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared
a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental
quality that is conducive to a life of dignity and well-being."
16
As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding generations."
17
The latter statute, on the other
hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of
the defendant in violation of said legal right.
18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of
action,
19
the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint
itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point
for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the
complaint?
20
In Militante vs. Edrosolano,
21
this Court laid down the rule that the judiciary should "exercise the utmost
care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest,
by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise
of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or
review. The second paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law,
22
Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson,
23
Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution
clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found
in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by
the fundamental law.
24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the
first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-
impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners,
into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry,
25
this
Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:
26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed.
27

cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or
even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp.
28
this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York,
29
quoted in Philippine American Life Insurance Co. vs.
Auditor General,
30
to wit:
Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.
In short, the non-impairment clause must yield to the police power of the state.
31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
CASE DIGEST:
FACTS:

The plaintiffs in this case are all minors duly represented and joined by their parents. The first complaint was filed as a
taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the Regional Trial Court, National capital Judicial
Region against defendant (respondent) Secretary of the Department of Environment and Natural Reasources (DENR).
Plaintiffs alleged that they are entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests. They further asseverate that they represent their generation as well as generations yet
unborn and asserted that continued deforestation have caused a distortion and disturbance of the ecological balance
and have resulted in a host of environmental tragedies.

Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives and other persons
acting in his behalf to cancel all existing Timber License Agreement (TLA) in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new TLAs.

Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had no cause of action against
him and that it raises a political question.

The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the Constitution.

Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the court to rescind and set aside
the dismissal order on the ground that the respondent RTC Judge gravely abused his discretion in dismissing the
action.

ISSUES:

(1) Whether or not the plaintiffs have a cause of action.
(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.

RULING:

First Issue: Cause of Action.

Respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent
Secretary for which any relief is provided by law. The Court did not agree with this. The complaint focuses on one
fundamental legal right -- the right to a balanced and healthful ecology which is incorporated in Section 16 Article II of
the Constitution. The said right carries with it the duty to refrain from impairing the environment and implies, among
many other things, the judicious management and conservation of the country's forests. Section 4 of E.O. 192 expressly
mandates the DENR to be the primary government agency responsible for the governing and supervising the
exploration, utilization, development and conservation of the country's natural resources. The policy declaration of E.O.
192 is also substantially re-stated in Title XIV Book IV of the Administrative Code of 1987. Both E.O. 192 and
Administrative Code of 1987 have set the objectives which will serve as the bases for policy formation, and have
defined the powers and functions of the DENR. Thus, right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as DENR's duty to protect and advance the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect or respect
the same gives rise to a cause of action. Petitioners maintain that the granting of the TLA, which they claim was done
with grave abuse of discretion, violated their right to a balance and healthful ecology. Hence, the full protection thereof
requires that no further TLAs should be renewed or granted.

After careful examination of the petitioners' complaint, the Court finds it to be adequate enough to show, prima facie,
the claimed violation of their rights.


Second Issue: Political Issue.

Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded jurisdiction vested upon the
Supreme Court. It allows the Court to rule upon even on the wisdom of the decision of the Executive and Legislature
and to declare their acts as invalid for lack or excess of jurisdiction because it is tainted with grave abuse of discretion.


Third Issue: Violation of the non-impairment clause.

The Court held that the Timber License Agreement is an instrument by which the state regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. It is not a contract within the purview of the
due process clause thus, the non-impairment clause cannot be invoked. It can be validly withdraw whenever dictated
by public interest or public welfare as in this case. The granting of license does not create irrevocable rights, neither is it
property or property rights.

Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the exercise by the police
power of the State, in the interest of public health, safety, moral and general welfare. In short, the non-impairment
clause must yield to the police power of the State.

The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is SET ASIDE.

MMDA VS CONCERNED CITIZEN OF MANILA BAY
Republic of the Philippines
SUPREME COURT
Manila


EN BANC


METROPOLITAN MANILA G.R. Nos. 171947-48
DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, Present:
DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS,
[1]
PUNO, C.J.,
DEPARTMENT OF HEALTH, QUISUMBING,
DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,
DEPARTMENT OF PUBLIC CARPIO,
WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,
DEPARTMENT OF BUDGET AND CORONA,
MANAGEMENT, PHILIPPINE CARPIO MORALES,
COAST GUARD, PHILIPPINE AZCUNA,
NATIONAL POLICE MARITIME TINGA,
GROUP, and DEPARTMENT OF CHICO-NAZARIO,
THE INTERIOR AND LOCAL VELASCO, JR.,
GOVERNMENT, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, and
- versus - BRION, JJ.


CONCERNED RESIDENTS OF
MANILA BAY, represented and
joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and Promulgated:
JAIME AGUSTIN R. OPOSA,
Respondents. December 18, 2008
x----------------------------------------------------------------------------------------- x

D E C I S I O N

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of late gained the attention of
the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of
forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by
itself.
[2]
But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism,
naysayers, and procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature of their respective offices or by
direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores,
and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace
does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier
attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic
efficiency and commitment.

At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life
and, for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a
difference.


This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint
before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners,
for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No.
1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way below the allowable
standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This
environmental aberration, the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.
[3]



In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the
pollution of theManila Bay constitutes a violation of, among others:

(1) Respondents constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit
to the RTC a concerted concrete plan of action for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of
the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management
Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water
samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content
ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90
prescribed as a safe level for bathing and other forms of contact recreational activities, or the SB level, is one not
exceeding 200 MPN/100 ml.
[4]


Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS efforts to reduce pollution along the Manila Bay through the Manila Second
Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its memorandum
circulars on the study being conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean the
Ocean) project for the cleaning of wastes accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision
[5]
in favor of respondents. The dispositive portion reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the
abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila
Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms
of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and perform their respective duties by
devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and
restoration of the bay.
In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment
facilities in strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and
operate sewage facilities for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and
maintain waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but
also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary
landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal
system such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine
life in Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning
up and rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free
flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up
in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable
garbage in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge
companies and require them to have proper facilities for the treatment and disposal of fecal sludge and
sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the
importance of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs
the Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group,
and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45.
The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the consolidated
appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And
apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that
the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.


The CA Sustained the RTC

By a Decision
[6]
of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the
RTC in toto,stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic
functions under existing laws.
[7]


Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following
ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY
THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING
THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO
REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.

ARGUMENTS

I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC
POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL
ACT OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.


The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water
Qualityand Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific
pollution incidents? Andsecond, can petitioners be compelled by mandamus to clean up and rehabilitate
the Manila Bay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.

Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.


The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.
[8]
A ministerial duty is one that
requires neither the exercise of official discretion nor judgment.
[9]
It connotes an act in which nothing is left to the
discretion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist
and imposed by law.
[10]
Mandamus is available to compel action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way or the other.

Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid
disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a
landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of
discretion.

Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to
comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to
respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water
they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that
petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other
words, it is the MMDAs ministerial duty to attend to such services.

We agree with respondents.

First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand,
and how they are to carry out such duties, on the other, are two different concepts. While the implementation of the
MMDAs mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social Justice
Society v. Atienza
[11]
in which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its
Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the so-
called Pandacan Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to the
instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory imposition. The
MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste disposal services to include:

Solid waste disposal and management which include formulation and implementation of
policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise
include the establishment and operation of sanitary land fill and related facilities and the
implementation of other alternative programs intended to reduce, reuse and recycle solid waste.
(Emphasis added.)


The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003)
which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the
minimum operating requirements that each site operator shall maintain in the operation of a sanitary
landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
[12]
enjoining the MMDA and local government units,
among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid
waste and disallowing, five years after such effectivity, the use of controlled dumps.

The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment
Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot
be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public
functionaries to act officially according to their judgment or conscience.
[13]
A discretionary duty is one that allows a
person to exercise judgment and choose to perform or not to perform.
[14]
Any suggestion that the MMDA has the
option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.

A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are
precluded from choosing not to perform these duties. Consider:

(1) The DENR, under Executive Order No. (EO) 192,
[15]
is the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the
Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government
agency responsible for its enforcement and implementation, more particularly over all aspects of water quality
management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of water
pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent information on
pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution.
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in
scope covering theManila Bay and adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:

a) Prepare a National Water Quality Status report within twenty-four (24) months from the
effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish
annually, or as the need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within twelve (12) months
following the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following
the completion of the framework for each designated water management area. Such action plan
shall be reviewed by the water quality management area governing board every five (5) years or as
need arises.


The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the
preparation of the Integrated Water Quality Management Framework.
[16]
Within twelve (12) months thereafter, it has to
submit a final Water Quality Management Area Action Plan.
[17]
Again, like the MMDA, the DENR should be made to
accomplish the tasks assigned to it under RA 9275.

Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of
and in partnership with various government agencies and non-government organizations, has completed, as of
December 2005, the final draft of a comprehensive action plan with estimated budget and time frame, denominated
as Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila
Bay.

The completion of the said action plan and even the implementation of some of its phases should more than ever
prod the concerned agencies to fast track what are assigned them under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234,
[18]
is vested with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns
of the provinces of Rizal andCavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x


(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can
prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate
local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for
the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA,
as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up
of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country.
[19]
In
relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite,
Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),
[20]
is designated as
the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization
of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in
coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are judiciously
utilized and managed on a sustainable basis.
[21]
Likewise under RA 9275, the DA is charged with coordinating with the
PCG and DENR for the enforcement of water quality standards in marine waters.
[22]
More specifically, its Bureau of
Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention
and control of water pollution for the development, management, and conservation of the fisheries and aquatic
resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292
[23]
to
provide integrated planning, design, and construction services for, among others, flood control and water resource
development systems in accordance with national development objectives and approved government plans and
specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services
relating to flood control and sewerage management which include the formulation and implementation of policies,
standards, programs and projects for an integrated flood control, drainage and sewerage system.

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby
MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country,
DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on
flood control and drainage services shall include the removal of structures, constructions, and encroachments built
along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD
979,
[24]
or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own
rules and regulations in accordance with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall,
under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating
craft, or other man-made structures at sea, by any method, means or manner, into or upon the
territorial and inland navigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or
deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the
shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or
description whatever other than that flowing from streets and sewers and passing therefrom in a liquid
state into tributary of any navigable water from which the same shall float or be washed into such
navigable water; and

c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of
any tributary of any navigable water, where the same shall be liable to be washed into such navigable
water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall
or may be impeded or obstructed or increase the level of pollution of such water.


(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into
law onDecember 13, 1990, the PNP Maritime Group was tasked to perform all police functions over the Philippine
territorial waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP
when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet attained
the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP Maritime
Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries
Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and other fishery
laws, rules, and regulations.
[25]


(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop, regulate, manage and
operate a rationalized national port system in support of trade and national development.
[26]
Moreover, Sec. 6-c of EO
513 states that the PPA has police authority within the

ports administered by it as may be necessary to carry out its powers and functions and attain its
purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs
and other law enforcement bodies within the area. Such police authority shall include the following:
x x x x

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft.
[27]



Lastly, as a member of the International Marine Organization and a signatory to the International Convention
for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,
[28]
the Philippines, through the PPA, must
ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships
docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels
docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial
waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid
waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for
the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions,
within its area of jurisdiction.
[29]


Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of
waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps
and landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone areas,
establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities
without an environmental compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be
allowed when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds. The MMDA, as lead
agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures,
constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers,
waterways, and esteros in Metro Manila. With respect to rivers, waterways, andesteros in Bulacan, Bataan, Pampanga,
Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and removal of such structures, constructions, and other encroachments
built in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate
rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir
for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and
other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of sewage
and the establishment and operation of a centralized sewage treatment system. In areas not considered as highly
urbanized cities, septage or a mix sewerage-septage management system shall be employed.

In accordance with Sec. 72
[30]
of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1
[31]
of Chapter
XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal
of wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and disposal before these companies are issued their environmental
sanitation permit.

(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to
integrate subjects on environmental education in its school curricula at all levels.
[32]
Under Sec. 118 of RA 8550, the
DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall
launch and pursue a nationwide educational campaign to promote the development, management, conservation, and
proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is
directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on
waste management principles.
[33]


(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative
Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve
the countrys development objectives.
[34]


One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004.
This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy of
the government, among others, to streamline processes and procedures in the prevention, control, and abatement of
pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate
economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national
program of water quality management that recognizes that issues related to this management cannot be separated from
concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide
a comprehensive management program for water pollution focusing on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line
with the countrys development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as
to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that
their tasks include the cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of
water pollution in general, not just specific pollution incidents?

Secs. 17 and 20 of the Environment Code
Include Cleaning in General

The disputed sections are quoted as follows:

Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree where
its state will adversely affect its best usage, the government agencies concerned shall take such
measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.

Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses
incurred in said operations shall be charged against the persons and/or entities responsible for such
pollution.


When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended the
counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.


The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26 hereof, any
person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing
standards shall be responsible to contain, remove and clean up any pollution incident at his own
expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial
use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to
immediately undertake the same, the [DENR] in coordination with other government agencies
concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said
operations shall be reimbursed by the persons found to have caused such pollution under proper
administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water
Quality Management Fund or to such other funds where said disbursements were sourced.


As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the
amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency in the
cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with
the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the twin
provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms cleanup
operations and accidental spills, as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or
spilled in water to restore it to pre-spillcondition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result
from accidents such as collisions and groundings.


Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the
body of water concerned. They maintain that the application of said Sec. 20 is limited only to water pollution
incidents, which are situations that presuppose the occurrence of specific, isolated pollution events requiring the
corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires cleanup operations to restore the body of water to pre-spill condition, which means
that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous
substances, as mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of
Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners posture,
respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of businesses
around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however,
emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20,
by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD
1152.

To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of
their respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by
the definition of the phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting
definition. As pointed out, the phrases cleanup operations and accidental spills do not appear in said Sec. 17, not
even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution
incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long
as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to stress,
commands concerned government agencies, when appropriate, to take such measures as may be necessary to meet the
prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on
the occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to
a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such
instance, the concerned government agencies shall undertake the cleanup work for the polluters account. Petitioners
assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident
and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As
earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the
agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on
the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17
and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152 aims to introduce a
comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of
general application rather than limiting them to specific pollution incidents.
[35]


Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct,
they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is
well-nigh impossible to draw the line between a specific and a general pollution incident. And such impossibility
extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions
water pollution incidents which may be caused by polluters in the waters of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand,
specifically adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual
or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants
eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and
faceless polluters that they can validly be categorized as beyond the specific pollution incident level.

Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it
would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say
that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody has
been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152,
covers for all intents and purposes a general cleanup situation.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning
phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water
be stopped from reaching the ManilaBay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in
no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD
1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-
agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their
mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as continuing mandamus,
[36]
the Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by
administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of
the court to clean up the length of the Ganges River from industrial and municipal pollution.
[37]


The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not
have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting waterways,
river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage, into the major
rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major river systems and
the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized
structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these important bodies
of water would be for naught. The DENR Secretary said as much.
[38]


Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water
Code,
[39]
which prohibits the building of structures within a given length along banks of rivers and other
waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and lakes throughout their entire
length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas
and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in
the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to
stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage
or to build structures of any kind. (Emphasis added.)


Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the
banks of thePasig River, other major rivers, and connecting waterways. But while they may not be treated as
unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of
the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-
complying industrial establishments set up, within a reasonable period, the necessary waste water treatment facilities
and infrastructure to prevent their industrial discharge, including their sewage waters, from flowing into
the Pasig River, other major rivers, and connecting waterways. After such period, non-complying establishments shall
be shut down or asked to transfer their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their
statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in Metro Manila, the
results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the metropolitan area is
as alarming as it is shocking. Some highlights of the report:

1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and
Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate
are toxic liquids that flow along the surface and seep into the earth and poison the surface and
groundwater that are used for drinking, aquatic life, and the environment.

2. The high level of fecal coliform confirms the presence of a large amount of human waste in
the dump sites and surrounding areas, which is presumably generated by households that lack
alternatives to sanitation. To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems
and Manila Bay.
[40]


Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant
violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be
established and operated, nor any practice or disposal of solid waste by any person, including LGUs
which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act:
Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this
Act. (Emphasis added.)


RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended
on February 21, 2006has come and gone, but no single sanitary landfill which strictly complies with the prescribed
standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste
matters in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid waste, and the
like. Some sludge companies which do not have proper disposal facilities simply discharge sludge into the Metro
Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and
unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which
proscribes the introduction by human or machine of substances to the aquatic environment including
dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum of
carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure.

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for
all concerned executive departments and agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion
of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants
and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds
to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the
preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real
or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate
that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their
basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two
untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the
cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance
the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need
not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications.
[41]
Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up
the bay, they and the men and women representing them cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a
betrayal of the trust reposed in them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and
SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but
withMODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC
Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government
agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB
level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34
[1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources, and Sec. 19 of RA 9275,
designating the DENR as the primary government agency responsible for its enforcement and implementation, the
DENR is directed to fully implement itsOperational Plan for the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to ensure the successful implementation of the
aforesaid plan of action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,
[42]
the DILG, in exercising the Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code
(PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private homes along the banks of the major river systems in their respective
areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and
regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set
up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and
other sanctions.

(3) As mandated by Sec. 8 of RA 9275,
[43]
the MWSS is directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest
possible time.

(4) Pursuant to RA 9275,
[44]
the LWUA, through the local water districts and in coordination with the DENR, is
ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection,
treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at
the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550,
[45]
the DA, through the BFAR, is ordered to improve and restore the marine life
of theManila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and
Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA
8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and
regulations designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513
[46]
and the International Convention for the Prevention of Pollution
from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and
liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend
the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and
drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove
all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable
laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC,
and other concerned government agencies, shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA
9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in
connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also
ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal
provisions of RA 9003,
[47]
Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal
of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be non-complying,
a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental
sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,
[48]
Sec. 118 of RA 8550, and Sec. 56 of RA 9003,
[49]
the DepEd shall integrate
lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula
of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the
importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and
the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the
Manila Bay, in line with the countrys development objective to attain economic growth in a manner consistent with the
protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime
Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of continuing mandamus, shall, from
finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in
accordance with this Decision.

No costs.

SO ORDERED.

CASE DIGEST:
The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international
community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical
habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction
is now on a scale few ever foresaw and the wound no longer simply heals by itself. But amidst hard evidence and clear signs of a
climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory
command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human
activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national
priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the
environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.

At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and, for so many
decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the
abject official indifference of people and institutions that could have otherwise made a difference.

Facts:

On January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court
(RTC) in Imus, Cavite against several government agencies, for the cleanup, rehabilitation, and protection of the Manila
Bay.

The complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by
law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code.

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the
pollution of the Manila Bay constitutes a violation of, among others:

(1) Respondents constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);

(3) The Pollution Control Law (PD 984);

(4) The Water Code (PD 1067);

(5) The Sanitation Code (PD 856);

(6) The Illegal Disposal of Wastes Decree (PD 825);

(7) The Marine Pollution Law (PD 979);

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

(10) Civil Code provisions on nuisance and human relations;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to the
RTC a concerted concrete plan of action for the purpose.

Issues:

a) Whether or not pertinent provisions of the Environment Code (PD 1152) relate only to the cleaning of specific
pollution incidents and do not cover cleaning in general.

b) Whether or not the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.

Held:

Regional Trial Courts Order to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision in favor of respondents. Finding merit in the complaint, the Court
ordered defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its
waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation.

To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from
receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme
of action for the rehabilitation and restoration of the bay.

In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places
under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities
for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities
to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of other solid and
liquid wastes from docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate
solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of
wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and
restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of
Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the
bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and
engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to
have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving
and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of
illegal fishing.

The Court of Appeals Sustained the RTCs Decision

The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual
Notices of Appeal. On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan
Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime
Group, and five other executive departments and agencies filed directly with this Court a petition for review under
Rule 45.

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of
the tasks, some of them as defined for them by law and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants
and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds
to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the
preservation and protection of the Manila Bay.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even
be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications.
Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they
and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed
in them.

By a Decision of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the RTC in toto,
stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic functions under
existing laws.

LA BUGAL BLAAN VS RAMOS
EN BANC
[G.R. No. 127882. December 1, 2004]
LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., Represented by its Chairman FLONG MIGUEL M.
LUMAYONG; WIGBERTO E. TAADA; PONCIANO BENNAGEN; JAIME TADEO; RENATO R.
CONSTANTINO JR.; FLONG AGUSTIN M. DABIE; ROBERTO P. AMLOY; RAQIM L. DABIE; SIMEON
H. DOLOJO; IMELDA M. GANDON; LENY B. GUSANAN; MARCELO L. GUSANAN; QUINTOL A.
LABUAYAN; LOMINGGES D. LAWAY; BENITA P. TACUAYAN; Minors JOLY L. BUGOY, Represented
by His Father UNDERO D. BUGOY and ROGER M. DADING; Represented by His Father ANTONIO L.
DADING; ROMY M. LAGARO, Represented by His Father TOTING A. LAGARO; MIKENY JONG B.
LUMAYONG, Represented by His Father MIGUEL M. LUMAYONG; RENE T. MIGUEL, Represented by
His Mother EDITHA T. MIGUEL; ALDEMAR L. SAL, Represented by His Father DANNY M. SAL; DAISY
RECARSE, Represented by Her Mother LYDIA S. SANTOS; EDWARD M. EMUY; ALAN P. MAMPARAIR;
MARIO L. MANGCAL; ALDEN S. TUSAN; AMPARO S. YAP; VIRGILIO CULAR; MARVIC M.V.F.
LEONEN; JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR JR., Represented by Their
Father VIRGILIO CULAR; PAUL ANTONIO P. VILLAMOR, Represented by His Parents JOSE
VILLAMOR and ELIZABETH PUA-VILLAMOR; ANA GININA R. TALJA, Represented by Her Father
MARIO JOSE B. TALJA; SHARMAINE R. CUNANAN, Represented by Her Father ALFREDO M.
CUNANAN; ANTONIO JOSE A. VITUG III, Represented by His Mother ANNALIZA A. VITUG, LEAN D.
NARVADEZ, Represented by His Father MANUEL E. NARVADEZ JR.; ROSERIO MARALAG
LINGATING, Represented by Her Father RIO OLIMPIO A. LINGATING; MARIO JOSE B. TALJA; DAVID
E. DE VERA; MARIA MILAGROS L. SAN JOSE; Sr. SUSAN O. BOLANIO, OND; LOLITA G.
DEMONTEVERDE; BENJIE L. NEQUINTO;
[1]
ROSE LILIA S. ROMANO; ROBERTO S. VERZOLA;
EDUARDO AURELIO C. REYES; LEAN LOUEL A. PERIA, Represented by His Father ELPIDIO V.
PERIA;
[2]
GREEN FORUM PHILIPPINES; GREEN FORUM WESTERN VISAYAS (GF-WV);
ENVIRONMENTAL LEGAL ASSISTANCE CENTER (ELAC); KAISAHAN TUNGO SA KAUNLARAN NG
KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN);
[3]
PARTNERSHIP FOR AGRARIAN
REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS); PHILIPPINE PARTNERSHIP FOR
THE DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA);
WOMENS LEGAL BUREAU (WLB); CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC.
(CADI); UPLAND DEVELOPMENT INSTITUTE (UDI); KINAIYAHAN FOUNDATION, INC.; SENTRO
NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); and LEGAL RIGHTS AND NATURAL
RESOURCES CENTER, INC. (LRC), petitioners, vs. VICTOR O. RAMOS, Secretary, Department of
Environment and Natural Resources (DENR); HORACIO RAMOS, Director, Mines and Geosciences Bureau
(MGB-DENR); RUBEN TORRES, Executive Secretary; and WMC (PHILIPPINES), INC.,
[4]
respondents.
R E S O L U T I O N
PANGANIBAN, J.:
All mineral resources are owned by the State. Their exploration, development and utilization (EDU) must always
be subject to the full control and supervision of the State. More specifically, given the inadequacy of Filipino capital and
technology in large-scale EDU activities, the State may secure the help of foreign companies in all relevant matters --
especially financial and technical assistance -- provided that, at all times, the State maintains its right of full control. The
foreign assistor or contractor assumes all financial, technical and entrepreneurial risks in the EDU activities; hence, it
may be given reasonable management, operational, marketing, audit and other prerogatives to protect its investments
and to enable the business to succeed.
Full control is not anathematic to day-to-day management by the contractor, provided that the State retains the
power to direct overall strategy; and to set aside, reverse or modify plans and actions of the contractor. The idea of full
control is similar to that which is exercised by the board of directors of a private corporation: the performance of
managerial, operational, financial, marketing and other functions may be delegated to subordinate officers or given to
contractual entities, but the board retains full residual control of the business.
Who or what organ of government actually exercises this power of control on behalf of the State? The Constitution
is crystal clear: thePresident. Indeed, the Chief Executive is the official constitutionally mandated to enter into
agreements with foreign owned corporations. On the other hand, Congress may review the action of the President
once it is notified of every contract entered into in accordance with this [constitutional] provision within thirty days
from its execution. In contrast to this express mandate of the President and Congress in the EDU of natural resources,
Article XII of the Constitution is silent on the role of the judiciary. However, should the President and/or Congress
gravely abuse their discretion in this regard, the courts may -- in a proper case -- exercise their residual duty under
Article VIII. Clearly then, the judiciary should not inordinately interfere in the exercise of this presidential power of
control over the EDU of our natural resources.
The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic
growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress
sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to
secure for our people and our posterity the blessings of prosperity and peace.
On the basis of this control standard, this Court upholds the constitutionality of the Philippine Mining Law, its
Implementing Rules and Regulations -- insofar as they relate to financial and technical agreements -- as well as the subject
Financial and Technical Assistance Agreement (FTAA).
[5]

Background
The Petition for Prohibition and Mandamus before the Court challenges the constitutionality of (1) Republic Act
No. [RA] 7942 (The Philippine Mining Act of 1995); (2) its Implementing Rules and Regulations (DENR Administrative
Order No. [DAO] 96-40); and (3) the FTAA dated March 30, 1995,
[6]
executed by the government with Western Mining
Corporation (Philippines), Inc. (WMCP).
[7]

On January 27, 2004, the Court en banc promulgated its Decision
[8]
granting the Petition and declaring the
unconstitutionality of certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed between the
government and WMCP, mainly on the finding that FTAAs are service contracts prohibited by the 1987 Constitution.
The Decision struck down the subject FTAA for being similar to service contracts,
[9]
which, though permitted under the
1973 Constitution,
[10]
were subsequently denounced for being antithetical to the principle of sovereignty over our natural
resources, because they allowed foreign control over the exploitation of our natural resources, to the prejudice of the Filipino
nation.
The Decision quoted several legal scholars and authors who had criticized service contracts for, inter alia, vesting in
the foreign contractorexclusive management and control of the enterprise, including operation of the field in the event
petroleum was discovered; control of production, expansion and development; nearly unfettered control over the
disposition and sale of the products discovered/extracted; effective ownership of the natural resource at the point of
extraction; and beneficial ownership of our economic resources. According to the Decision, the 1987 Constitution
(Section 2 of Article XII) effectively banned such service contracts.
Subsequently, respondents filed separate Motions for Reconsideration. In a Resolution dated March 9, 2004, the
Court required petitioners to comment thereon. In the Resolution of June 8, 2004, it set the case for Oral Argument on
June 29, 2004.
After hearing the opposing sides, the Court required the parties to submit their respective Memoranda in
amplification of their arguments. In a Resolution issued later the same day, June 29, 2004, the Court noted, inter alia, the
Manifestation and Motion (in lieu of comment) filed by the Office of the Solicitor General (OSG) on behalf of public
respondents. The OSG said that it was not interposing any objection to the Motion for Intervention filed by the
Chamber of Mines of the Philippines, Inc. (CMP) and was in fact joining and adopting the latters Motion for
Reconsideration.
Memoranda were accordingly filed by the intervenor as well as by petitioners, public respondents, and private
respondent, dwelling at length on the three issues discussed below. Later, WMCP submitted its Reply Memorandum,
while the OSG -- in obedience to an Order of this Court -- filed a Compliance submitting copies of more FTAAs entered
into by the government.
Three Issues Identified by the Court
During the Oral Argument, the Court identified the three issues to be resolved in the present controversy, as
follows:
1. Has the case been rendered moot by the sale of WMC shares in WMCP to Sagittarius (60 percent of Sagittarius
equity is owned by Filipinos and/or Filipino-owned corporations while 40 percent is owned by Indophil Resources NL,
an Australian company) and by the subsequent transfer and registration of the FTAA from WMCP to Sagittarius?
2. Assuming that the case has been rendered moot, would it still be proper to resolve the constitutionality of the
assailed provisions of the Mining Law, DAO 96-40 and the WMCP FTAA?
3. What is the proper interpretation of the phrase Agreements Involving Either Technical or Financial
Assistance contained in paragraph 4 of Section 2 of Article XII of the Constitution?
Should the Motion for Reconsideration
Be Granted?
Respondents and intervenors Motions for Reconsideration should be granted, for the reasons discussed
below. The foregoing three issues identified by the Court shall now be taken up seriatim.
First Issue:
Mootness
In declaring unconstitutional certain provisions of RA 7942, DAO 96-40, and the WMCP FTAA, the majority
Decision agreed with petitioners contention that the subject FTAA had been executed in violation of Section 2 of Article
XII of the 1987 Constitution. According to petitioners, the FTAAs entered into by the government with foreign-owned
corporations are limited by the fourth paragraph of the said provision to agreements involving only technical or financial
assistance for large-scale exploration, development and utilization of minerals, petroleum and other mineral
oils. Furthermore, the foreign contractor is allegedly permitted by the FTAA in question to fully manage and control
the mining operations and, therefore, to acquire beneficial ownership of our mineral resources.
The Decision merely shrugged off the Manifestation by WMPC informing the Court (1) that on January 23, 2001,
WMC had sold all its shares in WMCP to Sagittarius Mines, Inc., 60 percent of whose equity was held by Filipinos; and
(2) that the assailed FTAA had likewise been transferred from WMCP to Sagittarius.
[11]
The ponencia declared that the
instant case had not been rendered moot by the transfer and registration of the FTAA to a Filipino-owned corporation,
and that the validity of the said transfer remained in dispute and awaited final judicial determination.
[12]
Patently
therefore, the Decision is anchored on the assumption that WMCP had remained a foreign corporation.
The crux of this issue of mootness is the fact that WMCP, at the time it entered into the FTAA, happened to be wholly
owned by WMC Resources International Pty., Ltd. (WMC), which in turn was a wholly owned subsidiary of Western
Mining Corporation Holdings Ltd., a publicly listed major Australian mining and exploration company.
The nullity of the FTAA was obviously premised upon the contractor being a foreign corporation. Had the FTAA
been originally issued to a Filipino-owned corporation, there would have been no constitutionality issue to speak
of. Upon the other hand, the conveyance of the WMCP FTAA to a Filipino corporation can be likened to the sale of land
to a foreigner who subsequently acquires Filipino citizenship, or who later resells the same land to a Filipino
citizen. The conveyance would be validated, as the property in question would no longer be owned by a disqualified
vendee.
And, inasmuch as the FTAA is to be implemented now by a Filipino corporation, it is no longer possible for the
Court to declare it unconstitutional. The case pending in the Court of Appeals is a dispute between two Filipino
companies (Sagittarius and Lepanto), both claiming the right to purchase the foreign shares in WMCP. So, regardless of
which side eventually wins, the FTAA would still be in the hands of a qualified Filipino company. Considering that
there is no longer any justiciable controversy, the plea to nullify the Mining Law has become a virtual petition for
declaratory relief, over which this Court has no original jurisdiction.
In their Final Memorandum, however, petitioners argue that the case has not become moot, considering the
invalidity of the alleged sale of the shares in WMCP from WMC to Sagittarius, and of the transfer of the FTAA from
WMCP to Sagittarius, resulting in the change of contractor in the FTAA in question. And even assuming that the said
transfers were valid, there still exists an actual case predicated on the invalidity of RA 7942 and its Implementing Rules
and Regulations (DAO 96-40). Presently, we shall discuss petitioners objections to the transfer of both the shares and
the FTAA. We shall take up the alleged invalidity of RA 7942 and DAO 96-40 later on in the discussion of the third issue.
No Transgression of the Constitution
by the Transfer of the WMCP Shares
Petitioners claim, first, that the alleged invalidity of the transfer of the WMCP shares to Sagittarius violates the fourth
paragraph of Section 2 of Article XII of the Constitution; second, that it is contrary to the provisions of the WMCP FTAA
itself; and third, that the sale of the shares is suspect and should therefore be the subject of a case in which its validity
may properly be litigated.
On the first ground, petitioners assert that paragraph 4 of Section 2 of Article XII permits the government to enter
into FTAAs only with foreign-owned corporations. Petitioners insist that the first paragraph of this constitutional
provision limits the participation of Filipino corporations in the exploration, development and utilization of natural
resources to only three species of contracts -- production sharing, co-production and joint venture -- to the exclusion of
all other arrangements or variations thereof, and the WMCP FTAA may therefore not be validly assumed and
implemented by Sagittarius. In short, petitioners claim that a Filipino corporation is not allowed by the Constitution to enter
into an FTAA with the government.
However, a textual analysis of the first paragraph of Section 2 of Article XII does not support petitioners
argument. The pertinent part of the said provision states: Sec. 2. x x x The exploration, development and utilization of
natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it
may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. x x x. Nowhere in the provision is there any
express limitation or restriction insofar as arrangements other than the three aforementioned contractual schemes are
concerned.
Neither can one reasonably discern any implied stricture to that effect. Besides, there is no basis to believe that the
framers of the Constitution, a majority of whom were obviously concerned with furthering the development and
utilization of the countrys natural resources, could have wanted to restrict Filipino participation in that area. This
point is clear, especially in the light of the overarching constitutional principle of giving preference and priority to
Filipinos and Filipino corporations in the development of our natural resources.
Besides, even assuming (purely for arguments sake) that a constitutional limitation barring Filipino corporations
from holding and implementing an FTAA actually exists, nevertheless, such provision would apply only to the transfer
of the FTAA to Sagittarius, but definitely not to the sale of WMCs equity stake in WMCP to Sagittarius. Otherwise, an
unreasonable curtailment of property rights without due process of law would ensue. Petitioners argument must
therefore fail.
FTAA Not Intended
Solely for Foreign Corporation
Equally barren of merit is the second ground cited by petitioners -- that the FTAA was intended to apply solely to a
foreign corporation, as can allegedly be seen from the provisions therein. They manage to cite only one WMCP FTAA
provision that can be regarded as clearly intended to apply only to a foreign contractor: Section 12, which provides for
international commercial arbitration under the auspices of the International Chamber of Commerce, after local remedies
are exhausted. This provision, however, does not necessarily imply that the WMCP FTAA cannot be transferred to and
assumed by a Filipino corporation like Sagittarius, in which event the said provision should simply be disregarded as a
superfluity.
No Need for a Separate
Litigation of the Sale of Shares
Petitioners claim as third ground the suspicious sale of shares from WMC to Sagittarius; hence, the need to
litigate it in a separate case. Section 40 of RA 7942 (the Mining Law) allegedly requires the Presidents prior approval of
a transfer.
A re-reading of the said provision, however, leads to a different conclusion. Sec. 40. Assignment/Transfer -- A
financial or technical assistance agreement may be assigned or transferred, in whole or in part, to a qualified person subject to the
prior approval of the President: Provided, That the President shall notify Congress of every financial or technical assistance
agreement assigned or converted in accordance with this provision within thirty (30) days from the date of the approval thereof.
Section 40 expressly applies to the assignment or transfer of the FTAA, not to the sale and transfer of shares of stock in
WMCP. Moreover, when the transferee of an FTAA is another foreign corporation, there is a logical application of the
requirement of prior approval by the President of the Republic and notification to Congress in the event of assignment
or transfer of an FTAA. In this situation, such approval and notification are appropriate safeguards, considering that
the new contractor is the subject of a foreign government.
On the other hand, when the transferee of the FTAA happens to be a Filipino corporation, the need for such
safeguard is not critical; hence, the lack of prior approval and notification may not be deemed fatal as to render the
transfer invalid. Besides, it is not as if approval by the President is entirely absent in this instance. As pointed out by
private respondent in its Memorandum,
[13]
the issue of approval is the subject of one of the cases brought by Lepanto
against Sagittarius in GR No. 162331. That case involved the review of the Decision of the Court of Appeals dated
November 21, 2003 in CA-GR SP No. 74161, which affirmed the DENR Order dated December 31, 2001 and the Decision
of the Office of the President dated July 23, 2002, both approving the assignment of the WMCP FTAA to Sagittarius.
Petitioners also question the sale price and the financial capacity of the transferee. According to the Deed of
Absolute Sale dated January 23, 2001, executed between WMC and Sagittarius, the price of the WMCP shares was fixed
at US$9,875,000, equivalent to P553 million at an exchange rate of 56:1. Sagittarius had an authorized capital stock
of P250 million and a paid up capital of P60 million. Therefore, at the time of approval of the sale by the DENR, the
debt-to-equity ratio of the transferee was over 9:1 -- hardly ideal for an FTAA contractor, according to petitioners.
However, private respondents counter that the Deed of Sale specifically provides that the payment of the purchase
price would take placeonly after Sagittarius commencement of commercial production from mining operations, if at
all. Consequently, under the circumstances, we believe it would not be reasonable to conclude, as petitioners did, that
the transferees high debt-to-equity ratio per se necessarily carried negative implications for the enterprise; and it would
certainly be improper to invalidate the sale on that basis, as petitioners propose.
FTAA Not Void,
Thus Transferrable
To bolster further their claim that the case is not moot, petitioners insist that the FTAA is void and, hence cannot be
transferred; and that its transfer does not operate to cure the constitutional infirmity that is inherent in it; neither will a
change in the circumstances of one of the parties serve to ratify the void contract.
While the discussion in their Final Memorandum was skimpy, petitioners in their Comment (on the MR) did
ratiocinate that this Court had declared the FTAA to be void because, at the time it was executed with WMCP, the latter
was a fully foreign-owned corporation, in which the former vested full control and management with respect to the
exploration, development and utilization of mineral resources, contrary to the provisions of paragraph 4 of Section 2 of
Article XII of the Constitution. And since the FTAA was per se void, no valid right could be transferred; neither could it
be ratified, so petitioners conclude.
Petitioners have assumed as fact that which has yet to be established. First and foremost, the Decision of this Court
declaring the FTAA void has not yet become final. That was precisely the reason the Court still heard Oral Argument
in this case. Second, the FTAA does not vest in the foreign corporation full control and supervision over the exploration,
development and utilization of mineral resources, to the exclusion of the government. This point will be dealt with in
greater detail below; but for now, suffice it to say that a perusal of the FTAA provisions will prove that the government
has effective overall direction and control of the mining operations, including marketing and product pricing, and that
the contractors work programs and budgets are subject to its review and approval or disapproval.
As will be detailed later on, the government does not have to micro-manage the mining operations and dip its
hands into the day-to-day management of the enterprise in order to be considered as having overall control and
direction. Besides, for practical and pragmatic reasons, there is a need for government agencies to delegate certain
aspects of the management work to the contractor. Thus the basis for declaring the FTAA void still has to be revisited,
reexamined and reconsidered.
Petitioners sniff at the citation of Chavez v. Public Estates Authority,
[14]
and Halili v. CA,
[15]
claiming that the doctrines
in these cases are wholly inapplicable to the instant case.
Chavez clearly teaches: Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien who later
sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the
alien who buys the land subsequently acquires Philippine citizenship, the sale is validated since the purpose of the constitutional
ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the
buyer to hold land if the land is subsequently transferred to a qualified party, or the buyer himself becomes a qualified party.
[16]

In their Comment, petitioners contend that in Chavez and Halili, the object of the transfer (the land) was not what
was assailed for alleged unconstitutionality. Rather, it was the transaction that was assailed; hence subsequent
compliance with constitutional provisions would cure its infirmity. In contrast, in the instant case it is the FTAA itself,
the object of the transfer, that is being assailed as invalid and unconstitutional. So, petitioners claim that the subsequent
transfer of a void FTAA to a Filipino corporation would not cure the defect.
Petitioners are confusing themselves. The present Petition has been filed, precisely because the grantee of the
FTAA was a wholly owned subsidiary of a foreign corporation. It cannot be gainsaid that anyone would have asserted
that the same FTAA was void if it had at the outset been issued to a Filipino corporation. The FTAA, therefore, is not
per se defective or unconstitutional. It was questioned only because it had been issued to an allegedly non-qualified,
foreign-owned corporation.
We believe that this case is clearly analogous to Halili, in which the land acquired by a non-Filipino was re-
conveyed to a qualified vendee and the original transaction was thereby cured. Paraphrasing Halili, the same rationale
applies to the instant case: assuming arguendo the invalidity of its prior grant to a foreign corporation, the disputed
FTAA -- being now held by a Filipino corporation -- can no longer be assailed; the objective of the constitutional
provision -- to keep the exploration, development and utilization of our natural resources in Filipino hands -- has been
served.
More accurately speaking, the present situation is one degree better than that obtaining in Halili, in which the
original sale to a non-Filipino was clearly and indisputably violative of the constitutional prohibition and thus void ab
initio. In the present case, the issuance/grant of the subject FTAA to the then foreign-owned WMCP was not illegal,
void or unconstitutional at the time. The matter had to be brought to court, precisely for adjudication as to whether the
FTAA and the Mining Law had indeed violated the Constitution. Since, up to this point, the decision of this Court
declaring the FTAA void has yet to become final, to all intents and purposes, the FTAA must be deemed valid and
constitutional.
[17]

At bottom, we find completely outlandish petitioners contention that an FTAA could be entered into by the
government only with a foreign corporation, never with a Filipino enterprise. Indeed, the nationalistic provisions of the
Constitution are all anchored on the protection of Filipino interests. How petitioners can now argue that foreigners
have the exclusive right to FTAAs totally overturns the entire basis of the Petition -- preference for the Filipino in the
exploration, development and utilization of our natural resources. It does not take deep knowledge of law and logic to
understand that what the Constitution grants to foreigners should be equally available to Filipinos.
Second Issue:
Whether the Court Can Still Decide the Case,
Even Assuming It Is Moot
All the protagonists are in agreement that the Court has jurisdiction to decide this controversy, even assuming it to
be moot.
Petitioners stress the following points. First, while a case becomes moot and academic when there is no more actual
controversy between the parties or no useful purpose can be served in passing upon the merits,
[18]
what is at issue in the instant
case is not only the validity of the WMCP FTAA, but also the constitutionality of RA 7942 and its Implementing Rules
and Regulations. Second, the acts of private respondent cannot operate to cure the law of its alleged unconstitutionality
or to divest this Court of its jurisdiction to decide. Third, the Constitution imposes upon the Supreme Court the duty to
declare invalid any law that offends the Constitution.
Petitioners also argue that no amendatory laws have been passed to make the Mining Act of 1995 conform to
constitutional strictures (assuming that, at present, it does not); that public respondents will continue to implement and
enforce the statute until this Court rules otherwise; and that the said law continues to be the source of legal authority in
accepting, processing and approving numerous applications for mining rights.
Indeed, it appears that as of June 30, 2002, some 43 FTAA applications had been filed with the Mines and
Geosciences Bureau (MGB), with an aggregate area of 2,064,908.65 hectares -- spread over Luzon, the Visayas and
Mindanao
[19]
-- applied for. It may be a bit far-fetched to assert, as petitioners do, that each and every FTAA that was
entered into under the provisions of the Mining Act invites potential litigation for as long as the constitutional issues
are not resolved with finality. Nevertheless, we must concede that there exists the distinct possibility that one or more of the
future FTAAs will be the subject of yet another suit grounded on constitutional issues.
But of equal if not greater significance is the cloud of uncertainty hanging over the mining industry, which is even
now scaring away foreign investments. Attesting to this climate of anxiety is the fact that the Chamber of Mines of the
Philippines saw the urgent need to intervene in the case and to present its position during the Oral Argument; and that
Secretary General Romulo Neri of the National Economic Development Authority (NEDA) requested this Court to
allow him to speak, during that Oral Argument, on the economic consequences of the Decision of January 27, 2004.
[20]

We are convinced. We now agree that the Court must recognize the exceptional character of the situation and the
paramount public interest involved, as well as the necessity for a ruling to put an end to the uncertainties plaguing the mining
industry and the affected communities as a result of doubts cast upon the constitutionality and validity of the Mining Act, the
subject FTAA and future FTAAs, and the need to avert a multiplicity of suits. Paraphrasing Gonzales v. Commission on
Elections,
[21]
it is evident that strong reasons of public policy demand that the constitutionality issue be resolved now.
[22]

In further support of the immediate resolution of the constitutionality issue, public respondents cite Acop v.
Guingona,
[23]
to the effect that the courts will decide a question -- otherwise moot and academic -- if it is capable of
repetition, yet evading review.
[24]
Public respondents ask the Court to avoid a situation in which the constitutionality
issue may again arise with respect to another FTAA, the resolution of which may not be achieved until after it has
become too late for our mining industry to grow out of its infancy. They also recall Salonga v. Cruz Pao,
[25]
in which
this Court declared that (t)he Court also has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines or rules. It has the symbolic function of educating the bench and bar on the extent of protection given by constitutional
guarantees. x x x.
The mootness of the case in relation to the WMCP FTAA led the undersigned ponente to state in his dissent to the
Decision that there was no more justiciable controversy and the plea to nullify the Mining Law has become a virtual
petition for declaratory relief.
[26]
The entry of the Chamber of Mines of the Philippines, Inc., however, has put into focus
the seriousness of the allegations of unconstitutionality of RA 7942 and DAO 96-40 which converts the case to one for
prohibition
[27]
in the enforcement of the said law and regulations.
Indeed, this CMP entry brings to fore that the real issue in this case is whether paragraph 4 of Section 2 of Article
XII of the Constitution is contravened by RA 7942 and DAO 96-40, not whether it was violated by specific acts
implementing RA 7942 and DAO 96-40. [W]hen an act of the legislative department is seriously alleged to have
infringed the Constitution, settling the controversy becomes the duty of this Court. By the mere enactment of the
questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy
even without any other overt act.
[28]
This ruling can be traced from Taada v. Angara,
[29]
in which the Court said:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
x x x x x x x x x
As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it
in appropriate cases, committed by any officer, agency, instrumentality or department of the government.
[30]

Additionally, the entry of CMP into this case has also effectively forestalled any possible objections arising from
the standing or legal interest of the original parties.
For all the foregoing reasons, we believe that the Court should proceed to a resolution of the constitutional issues
in this case.
Third Issue:
The Proper Interpretation of the Constitutional Phrase
Agreements Involving Either Technical or Financial Assistance
The constitutional provision at the nucleus of the controversy is paragraph 4 of Section 2 of Article XII of the 1987
Constitution. In order to appreciate its context, Section 2 is reproduced in full:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture or production-sharing agreements with Filipino citizens or corporations or associations at
least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from
its execution.
[31]

No Restriction of Meaning by
a Verba Legis Interpretation
To interpret the foregoing provision, petitioners adamantly assert that the language of the Constitution should
prevail; that the primary method of interpreting it is to seek the ordinary meaning of the words used in its
provisions. They rely on rulings of this Court, such as the following:
The fundamental principle in constitutional construction however is that the primary source from which to ascertain
constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the
constitutional provisions are couched express the objective sought to be attained. In other words, verba legis prevails. Only when
the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation,
such as the proceedings of the Constitutional Commission or Convention to shed light on and ascertain the true intent or purpose of
the provision being construed.
[32]

Very recently, in Francisco v. The House of Representatives,
[33]
this Court indeed had the occasion to reiterate the well-
settled principles of constitutional construction:
First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except
where technical terms are employed. x x x.
x x x x x x x x x
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with
the intent of its framers. x x x.
x x x x x x x x x
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.
[34]

For ease of reference and in consonance with verba legis, we reconstruct and stratify the aforequoted Section 2 as
follows:
1. All natural resources are owned by the State. Except for agricultural lands, natural resources cannot be alienated by
the State.
2. The exploration, development and utilization (EDU) of natural resources shall be under the full control and
supervision of the State.
3. The State may undertake these EDU activities through either of the following:
(a) By itself directly and solely
(b) By (i) co-production; (ii) joint venture; or (iii) production sharing agreements with Filipino citizens or corporations,
at least 60 percent of the capital of which is owned by such citizens
4. Small-scale utilization of natural resources may be allowed by law in favor of Filipino citizens.
5. For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with
foreign-owned corporations involving either technical or financial assistance according to the general terms and
conditions provided by law x x x.
Note that in all the three foregoing mining activities -- exploration, development and utilization -- the State may
undertake such EDU activities by itself or in tandem with Filipinos or Filipino corporations, except in two instances: first,
in small-scale utilization of natural resources, which Filipinos may be allowed by law to undertake; and second, in large-
scale EDU of minerals, petroleum and mineral oils, which may be undertaken by the State via agreements with foreign-
owned corporations involving either technical or financial assistance as provided by law.
Petitioners claim that the phrase agreements x x x involving either technical or financial assistance simply
means technical assistance or financial assistance agreements, nothing more and nothing else. They insist that there is
no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above leads to the inescapable conclusion
that what a foreign-owned corporation may enter into with the government is merely an agreement
for either financial or technical assistance only, for the large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils; such a limitation, they argue, excludes foreign management and operation of a
mining enterprise.
[35]

This restrictive interpretation, petitioners believe, is in line with the general policy enunciated by the Constitution
reserving to Filipino citizens and corporations the use and enjoyment of the countrys natural resources. They maintain
that this Courts Decision
[36]
of January 27, 2004 correctly declared the WMCP FTAA, along with pertinent provisions of
RA 7942, void for allowing a foreign contractor to have direct and exclusive management of a mining
enterprise. Allowing such a privilege not only runs counter to the full control and supervision that the State is
constitutionally mandated to exercise over the exploration, development and utilization of the countrys natural
resources; doing so also vests in the foreign company beneficial ownership of our mineral resources. It will be
recalled that the Decision of January 27, 2004 zeroed in on management or other forms of assistance or other activities
associated with the service contracts of the martial law regime, since the management or operation of mining activities by
foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987
Constitution sought to eradicate.
On the other hand, the intervenor
[37]
and public respondents argue that the FTAA allowed by paragraph 4 is not
merely an agreement for supplying limited and specific financial or technical services to the State. Rather, such FTAA is
a comprehensive agreement for the foreign-owned corporations integrated exploration, development and utilization of
mineral, petroleum or other mineral oils on a large-scale basis. The agreement, therefore, authorizes the foreign
contractors rendition of a whole range of integrated and comprehensive services, ranging from the discovery to the
development, utilization and production of minerals or petroleum products.
We do not see how applying a strictly literal or verba legis interpretation of paragraph 4 could inexorably lead to
the conclusions arrived at in the ponencia. First, the drafters choice of words -- their use of the phrase agreements x x
x involving either technical or financial assistance -- does not indicate the intent to exclude other modes of assistance. The
drafters opted to use involving when they could have simply saidagreements for financial or technical assistance, if that was
their intention to begin with. In this case, the limitation would be very clear and no further debate would ensue.
In contrast, the use of the word involving signifies the possibility of the inclusion of other forms of assistance
or activities having to do with, otherwise related to or compatible with financial or technical assistance. The word
involving as used in this context has three connotations that can be differentiated thus: one, the sense of concerning,
having to do with, or affecting; two, entailing, requiring, implying or necessitating; and three, including,
containing or comprising.
[38]

Plainly, none of the three connotations convey a sense of exclusivity. Moreover, the word involving, when
understood in the sense of including, as in including technical or financial assistance, necessarily implies that there
are activities other than those that are being included. In other words, if an agreement includes technical or financial
assistance, there is apart from such assistance -- something else already in, and covered or may be covered by, the said
agreement.
In short, it allows for the possibility that matters, other than those explicitly mentioned, could be made part of the
agreement. Thus, we are now led to the conclusion that the use of the word involving implies that these agreements
with foreign corporations are not limited to mere financial or technical assistance. The difference in sense becomes very
apparent when we juxtapose agreements for technical or financial assistance against agreements including technical
or financial assistance. This much is unalterably clear in a verba legis approach.
Second, if the real intention of the drafters was to confine foreign corporations to financial or technical assistance
and nothing more, their language would have certainly been so unmistakably restrictive and stringent as to leave no
doubt in anyones mind about their true intent. For example, they would have used the sentence foreign corporations
are absolutely prohibited from involvement in the management or operation of mining or similar ventures or words of similar
import. A search for such stringent wording yields negative results. Thus, we come to the inevitable conclusion that
there was a conscious and deliberate decision to avoid the use of restrictive wording that bespeaks an intent not to use
the expression agreements x x x involving either technical or financial assistance in an exclusionary and limiting
manner.
Deletion of Service Contracts to
Avoid Pitfalls of Previous Constitutions,
Not to Ban Service Contracts Per Se
Third, we do not see how a verba legis approach leads to the conclusion that the management or operation of mining
activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987
Constitution sought to eradicate. Nowhere in the above-quoted Section can be discerned the objective to keep out of
foreign hands the management or operation of mining activities or the plan to eradicate service contracts as these were
understood in the 1973 Constitution. Still, petitioners maintain that the deletion or omission from the 1987 Constitution
of the term service contracts found in the 1973 Constitution sufficiently proves the drafters intent to exclude
foreigners from the management of the affected enterprises.
To our mind, however, such intent cannot be definitively and conclusively established from the mere failure to
carry the same expression or term over to the new Constitution, absent a more specific, explicit and unequivocal
statement to that effect. What petitioners seek (a complete ban on foreign participation in the management of mining
operations, as previously allowed by the earlier Constitutions) is nothing short of bringing about a momentous sea
change in the economic and developmental policies; and the fundamentally capitalist, free-enterprise philosophy of our
government. We cannot imagine such a radical shift being undertaken by our government, to the great prejudice of the
mining sector in particular and our economy in general, merely on the basis of the omission of the terms service
contract from or the failure to carry them over to the new Constitution. There has to be a much more definite and even
unarguable basis for such a drastic reversal of policies.
Fourth, a literal and restrictive interpretation of paragraph 4, such as that proposed by petitioners, suffers from
certain internal logical inconsistencies that generate ambiguities in the understanding of the provision. As the
intervenor pointed out, there has never been any constitutional or statutory provision that reserved to Filipino citizens
or corporations, at least 60 percent of which is Filipino-owned, the rendition of financial or technical assistance to
companies engaged in mining or the development of any other natural resource. The taking out of foreign-currency or
peso-denominated loans or any other kind of financial assistance, as well as the rendition of technical assistance --
whether to the State or to any other entity in the Philippines -- has never been restricted in favor of Filipino citizens or
corporations having a certain minimum percentage of Filipino equity. Such a restriction would certainly be
preposterous and unnecessary. As a matter of fact, financial, and even technical assistance, regardless of the nationality
of its source, would be welcomed in the mining industry anytime with open arms, on account of the dearth of local
capital and the need to continually update technological know-how and improve technical skills.
There was therefore no need for a constitutional provision specifically allowing foreign-owned corporations to
render financial or technical assistance, whether in respect of mining or some other resource development or
commercial activity in the Philippines. The last point needs to be emphasized: if merely financial or technical
assistance agreements are allowed, there would be no need to limit them to large-scale mining operations, as there
would be far greater need for them in the smaller-scale mining activities (and even in non-mining
areas). Obviously, the provision in question was intended to refer to agreements other than those for mere financial
or technical assistance.
In like manner, there would be no need to require the President of the Republic to report to Congress, if only
financial or technical assistance agreements are involved. Such agreements are in the nature of foreign loans that --
pursuant to Section 20 of Article VII
[39]
of the 1987 Constitution -- the President may contract or guarantee, merely with
the prior concurrence of the Monetary Board. In turn, the Board is required to report to Congress within thirty days from
the end of every quarter of the calendar year, not thirty days after the agreement is entered into.
And if paragraph 4 permits only agreements for loans and other forms of financial, or technical assistance, what is
the point of requiring that they be based on real contributions to the economic growth and general welfare of the country? For
instance, how is one to measure and assess the real contributions to the economic growth and general welfare of
the country that may ensue from a foreign-currency loan agreement or a technical-assistance agreement for, say, the
refurbishing of an existing power generating plant for a mining operation somewhere in Mindanao? Such a criterion
would make more sense when applied to a major business investment in a principal sector of the industry.
The conclusion is clear and inescapable -- a verba legis construction shows that paragraph 4 is not to be understood
as one limited only to foreign loans (or other forms of financial support) and to technical assistance. There is definitely
more to it than that. These are provisions permitting participation by foreign companies; requiring the Presidents
report to Congress; and using, as yardstick, contributions based on economic growth and general welfare. These
were neither accidentally inserted into the Constitution nor carelessly cobbled together by the drafters in lip service
to shallow nationalism. The provisions patently have significance and usefulness in a context that allows agreements
with foreign companies to include more than mere financial or technical assistance.
Fifth, it is argued that Section 2 of Article XII authorizes nothing more than a rendition of specific and limited
financial service or technical assistance by a foreign company. This argument begs the question To whom or for whom
would it be rendered? or Who is being assisted? If the answer is The State, then it necessarily implies that the State
itself is the one directly and solely undertaking the large-scale exploration, development and utilization of a mineral
resource, so it follows that the State must itself bear the liability and cost of repaying the financing sourced from the
foreign lender and/or of paying compensation to the foreign entity rendering technical assistance.
However, it is of common knowledge, and of judicial notice as well, that the government is and has for many
many years been financially strapped, to the point that even the most essential services have suffered serious
curtailments -- education and health care, for instance, not to mention judicial services -- have had to make do with
inadequate budgetary allocations. Thus, government has had to resort to build-operate-transfer and similar
arrangements with the private sector, in order to get vital infrastructure projects built without any governmental outlay.
The very recent brouhaha over the gargantuan fiscal crisis or budget deficit merely confirms what the
ordinary citizen has suspected all along. After the reality check, one will have to admit the implausibility of a direct
undertaking -- by the State itself -- of large-scale exploration, development and utilization of minerals, petroleum and
other mineral oils. Such an undertaking entails not only humongous capital requirements, but also the attendant risk
of never finding and developing economically viable quantities of minerals, petroleum and other mineral oils.
[40]

It is equally difficult to imagine that such a provision restricting foreign companies to the rendition of only
financial or technical assistance to the government was deliberately crafted by the drafters of the Constitution, who
were all well aware of the capital-intensive and technology-oriented nature of large-scale mineral or petroleum
extraction and the countrys deficiency in precisely those areas.
[41]
To say so would be tantamount to asserting that the
provision was purposely designed to ladle the large-scale development and utilization of mineral, petroleum and
related resources with impossible conditions; and to remain forever and permanently reserved for future generations
of Filipinos.
A More Reasonable Look
at the Charters Plain Language
Sixth, we shall now look closer at the plain language of the Charter and examining the logical inferences. The
drafters chose to emphasize and highlight agreements x x x involving either technical or financial assistance in relation to
foreign corporations participation in large-scale EDU. The inclusion of this clause on technical or financial assistance
recognizes the fact that foreign business entities and multinational corporations are the ones with the resources and
know-how to provide technical and/or financial assistance of the magnitude and type required for large-scale
exploration, development and utilization of these resources.
The drafters -- whose ranks included many academicians, economists, businessmen, lawyers, politicians and
government officials -- were not unfamiliar with the practices of foreign corporations and multinationals.
Neither were they so nave as to believe that these entities would provide assistance without conditionalities or
some quid pro quo. Definitely, as business persons well know and as a matter of judicial notice, this matter is not just a
question of signing a promissory note or executing a technology transfer agreement. Foreign corporations usually
require that they be given a say in the management, for instance, of day-to-day operations of the joint venture. They
would demand the appointment of their own men as, for example, operations managers, technical experts, quality
control heads, internal auditors or comptrollers. Furthermore, they would probably require seats on the Board of
Directors -- all these to ensure the success of the enterprise and the repayment of the loans and other financial assistance
and to make certain that the funding and the technology they supply would not go to waste. Ultimately, they would
also want to protect their business reputation and bottom lines.
[42]

In short, the drafters will have to be credited with enough pragmatism and savvy to know that these foreign
entities will not enter into such agreements involving assistance without requiring arrangements for the protection of
their investments, gains and benefits.
Thus, by specifying such agreements involving assistance, the drafters necessarily gave implied assent to
everything that these agreements necessarily entailed; or that could reasonably be deemed necessary to make them
tenable and effective, including management authority with respect to the day-to-day operations of the enterprise and
measures for the protection of the interests of the foreign corporation, PROVIDED THAT Philippine sovereignty over
natural resources and full control over the enterprise undertaking the EDU activities remain firmly in the State.
Petitioners Theory Deflated by the
Absence of Closing-Out Rules or Guidelines
Seventh and final point regarding the plain-language approach, one of the practical difficulties that results from it is
the fact that there is nothing by way of transitory provisions that would serve to confirm the theory that the omission of
the term service contract from the 1987 Constitution signaled the demise of service contracts.
The framers knew at the time they were deliberating that there were various service contracts extant and in force
and effect, including those in the petroleum industry. Many of these service contracts were long-term (25 years) and
had several more years to run. If they had meant to ban service contracts altogether, they would have had to provide for the
termination or pretermination of the existing contracts. Accordingly, they would have supplied the specifics and
the when and how of effecting the extinguishment of these existing contracts (or at least the mechanics for determining them); and
of putting in place the means to address the just claims of the contractors for compensation for their investments, lost opportunities,
and so on, if not for the recovery thereof.
If the framers had intended to put an end to service contracts, they would have at least left specific instructions to
Congress to deal with these closing-out issues, perhaps by way of general guidelines and a timeline within which to
carry them out. The following are some extant examples of such transitory guidelines set forth in Article XVIII of our
Constitution:
Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from
its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.
x x x x x x x x x
Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the
recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution.
However, in the national interest, as certified by the President, the Congress may extend such period.
A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or
frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the
corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such
ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.
The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein
provided.
[43]

It is inconceivable that the drafters of the Constitution would leave such an important matter -- an expression of
sovereignty as it were -- indefinitely hanging in the air in a formless and ineffective state. Indeed, the complete absence
of even a general framework only serves to further deflate petitioners theory, like a childs balloon losing its air.
Under the circumstances, the logical inconsistencies resulting from petitioners literal and purely verba
legis approach to paragraph 4 of Section 2 of Article XII compel a resort to other aids to interpretation.
Petitioners Posture Also Negated
by Ratio Legis Et Anima
Thus, in order to resolve the inconsistencies, incongruities and ambiguities encountered and to supply the deficiencies of the
plain-language approach, there is a need for recourse to the proceedings of the 1986 Constitutional Commission. There is a need
for ratio legis et anima.
Service Contracts Not
Deconstitutionalized
Pertinent portions of the deliberations of the members of the Constitutional Commission (ConCom) conclusively
show that they discussedagreements involving either technical or financial assistance in the same breadth as service
contracts and used the terms interchangeably. The following exchange between Commissioner Jamir (sponsor of the
provision) and Commissioner Suarez irrefutably proves that the agreements involving technical or financial
assistance were none other than service contracts.
THE PRESIDENT. Commissioner Jamir is recognized. We are still on Section 3.
MR. JAMIR. Yes, Madam President. With respect to the second paragraph of Section 3, my amendment by
substitution reads: THE PRESIDENT MAY ENTER INTO AGREEMENTS WITH FOREIGN-OWNED
CORPORATIONS INVOLVING EITHER TECHNICAL OR FINANCIAL ASSISTANCE FOR LARGE-
SCALE EXPLORATION, DEVELOPMENT AND UTILIZATION OF NATURAL RESOURCES
ACCORDING TO THE TERMS AND CONDITIONS PROVIDED BY LAW.
MR. VILLEGAS. The Committee accepts the amendment. Commissioner Suarez will give the background.
MR. JAMIR. Thank you.
THE PRESIDENT. Commissioner Suarez is recognized.
MR. SUAREZ. Thank you, Madam President.
Will Commissioner Jamir answer a few clarificatory questions?
MR. JAMIR. Yes, Madam President.
MR. SUAREZ. This particular portion of the section has reference to what was popularly known before as
service contracts, among other things, is that correct?
MR. JAMIR. Yes, Madam President.
MR. SUAREZ. As it is formulated, the President may enter into service contracts but subject to the guidelines
that may be promulgated by Congress?
MR. JAMIR. That is correct.
MR. SUAREZ. Therefore, that aspect of negotiation and consummation will fall on the President, not upon
Congress?
MR. JAMIR. That is also correct, Madam President.
MR. SUAREZ. Except that all of these contracts, service or otherwise, must be made strictly in accordance
with guidelines prescribed by Congress?
MR. JAMIR. That is also correct.
MR. SUAREZ. And the Gentleman is thinking in terms of a law that uniformly covers situations of the same
nature?
MR. JAMIR. That is 100 percent correct.
MR. SUAREZ. I thank the Commissioner.
MR. JAMIR. Thank you very much.
[44]

The following exchange leaves no doubt that the commissioners knew exactly what they were dealing with: service
contracts.
THE PRESIDENT. Commissioner Gascon is recognized.
MR. GASCON. Commissioner Jamir had proposed an amendment with regard to special service
contracts which was accepted by the Committee. Since the Committee has accepted it, I would like to
ask some questions.
THE PRESIDENT. Commissioner Gascon may proceed.
MR. GASCON. As it is proposed now, such service contracts will be entered into by the President with the
guidelines of a general law onservice contract to be enacted by Congress. Is that correct?
MR. VILLEGAS. The Commissioner is right, Madam President.
MR. GASCON. According to the original proposal, if the President were to enter into a particular agreement,
he would need the concurrence of Congress. Now that it has been changed by the proposal of
Commissioner Jamir in that Congress will set the general law to which the President shall comply, the
President will, therefore, not need the concurrence of Congress every time he enters into service
contracts. Is that correct?
MR. VILLEGAS. That is right.
MR. GASCON. The proposed amendment of Commissioner Jamir is in indirect contrast to my proposed
amendment, so I would like to object and present my proposed amendment to the body.
x x x x x x x x x
MR. GASCON. Yes, it will be up to the body.
I feel that the general law to be set by Congress as regard service contract agreements which the President
will enter into might be too general or since we do not know the content yet of such a law, it might be
that certain agreements will be detrimental to the interest of the Filipinos. This is in direct contrast to my
proposal which provides that there be effective constraints in the implementation of service contracts.
So instead of a general law to be passed by Congress to serve as a guideline to the President when entering
into service contract agreements, I propose that every service contract entered into by the President
would need the concurrence of Congress, so as to assure the Filipinos of their interests with regard to the
issue in Section 3 on all lands of the public domain. My alternative amendment, which we will discuss
later, reads: THAT THE PRESIDENT SHALL ENTER INTO SUCH AGREEMENTS ONLY WITH THE
CONCURRENCE OF TWO-THIRDS VOTE OF ALL THE MEMBERS OF CONGRESS SITTING
SEPARATELY.
x x x x x x x x x
MR. BENGZON. The reason we made that shift is that we realized the original proposal could breed
corruption. By the way, this is not just confined to service contracts but also to financial assistance. If
we are going to make every single contract subject to the concurrence of Congress which, according to
the Commissioners amendment is the concurrence of two-thirds of Congress voting separately then (1)
there is a very great chance that each contract will be different from another; and (2) there is a great
temptation that it would breed corruption because of the great lobbying that is going to happen. And we
do not want to subject our legislature to that.
Now, to answer the Commissioners apprehension, by general law, we do not mean statements of
motherhood. Congress can build all the restrictions that it wishes into that general law so that every contract entered
into by the President under that specific area will have to be uniform. The President has no choice but to follow all the
guidelines that will be provided by law.
MR. GASCON. But my basic problem is that we do not know as of yet the contents of such a general law as to
how much constraints there will be in it. And to my mind, although the Committees contention that the
regular concurrence from Congress would subject Congress to extensive lobbying, I think that is a risk
we will have to take since Congress is a body of representatives of the people whose membership will be
changing regularly as there will be changing circumstances every time certain agreements are made. It
would be best then to keep in tab and attuned to the interest of the Filipino people, whenever the
President enters into any agreement with regard to such an important matter as technical or financial
assistance for large-scale exploration, development and utilization of natural resources or service
contracts, the peoples elected representatives should be on top of it.
x x x x x x x x x
MR. OPLE. Madam President, we do not need to suspend the session. If Commissioner Gascon needs a few
minutes, I can fill up the remaining time while he completes his proposed amendment. I just wanted to
ask Commissioner Jamir whether he would entertain a minor amendment to his amendment, and it
reads as follows: THE PRESIDENT SHALL SUBSEQUENTLY NOTIFY CONGRESS OF EVERYSERVICE
CONTRACT ENTERED INTO IN ACCORDANCE WITH THE GENERAL LAW. I think the reason is, if
I may state it briefly, as Commissioner Bengzon said, Congress can always change the general law later
on to conform to new perceptions of standards that should be built into service contracts. But the only
way Congress can do this is if there were a notification requirement from the Office of the President that
such service contracts had been entered into, subject then to the scrutiny of the Members of
Congress. This pertains to a situation where the service contracts are already entered into, and all that
this amendment seeks is the reporting requirement from the Office of the President. Will Commissioner
Jamir entertain that?
MR. JAMIR. I will gladly do so, if it is still within my power.
MR. VILLEGAS. Yes, the Committee accepts the amendment.
x x x x x x x x x
SR. TAN. Madam President, may I ask a question?
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the
past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the
notification of Congress by the President? That is the only difference, is it not?
MR. VILLEGAS. That is right.
SR. TAN. So those are the safeguards.
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.
SR. TAN. Thank you, Madam President.
[45]

More Than Mere Financial
and Technical Assistance
Entailed by the Agreements
The clear words of Commissioner Jose N. Nolledo quoted below explicitly and eloquently demonstrate that the
drafters knew that the agreements with foreign corporations were going to entail not mere technical or financial
assistance but, rather, foreign investment in and management of an enterprise involved in large-scale exploration, development
and utilization of minerals, petroleum, and other mineral oils.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Madam President, I have the permission of the Acting Floor Leader to speak for only two
minutes in favor of the amendment of Commissioner Gascon.
THE PRESIDENT. Commissioner Nolledo may proceed.
MR. NOLLEDO. With due respect to the members of the Committee and Commissioner Jamir, I am in favor
of the objection of Commissioner Gascon.
Madam President, I was one of those who refused to sign the 1973 Constitution, and one of the reasons is that there
were many provisions in the Transitory Provisions therein that favored aliens. I was shocked when I read a provision
authorizing service contracts while we, in this Constitutional Commission, provided for Filipino control of the
economy. We are, therefore, providing for exceptional instances where aliens may circumvent Filipino control of our
economy. And one way of circumventing the rule in favor of Filipino control of the economy is to recognize service
contracts.
As far as I am concerned, if I should have my own way, I am for the complete deletion of this provision. However, we
are presenting a compromise in the sense that we are requiring a two-thirds vote of all the Members of Congress as a
safeguard. I think we should not mistrust the future Members of Congress by saying that the purpose of this provision
is to avoid corruption. We cannot claim that they are less patriotic than we are. I think the Members of this
Commission should know that entering into service contracts is an exception to the rule on protection of natural
resources for the interest of the nation, and therefore, being an exception it should be subject, whenever possible, to
stringent rules. It seems to me that we are liberalizing the rules in favor of aliens.
I say these things with a heavy heart, Madam President. I do not claim to be a nationalist, but I love my
country. Although we need investments, we must adopt safeguards that are truly reflective of the sentiments of the
people and not mere cosmetic safeguards as they now appear in the Jamir amendment. (Applause)
Thank you, Madam President.
[46]

Another excerpt, featuring then Commissioner (now Chief Justice) Hilario G. Davide Jr., indicates the limitations of
the scope of such service contracts -- they are valid only in regard to minerals, petroleum and other mineral oils, not to all
natural resources.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. Thank you, Madam President. This is an amendment to the Jamir amendment and also to the
Ople amendment. I propose to delete NATURAL RESOURCES and substitute it with the following:
MINERALS, PETROLEUM AND OTHER MINERAL OILS. On the Ople amendment, I propose to add:
THE NOTIFICATION TO CONGRESS SHALL BE WITHIN THIRTY DAYS FROM THE EXECUTION
OF THE SERVICE CONTRACT.
THE PRESIDENT. What does the Committee say with respect to the first amendment in lieu of NATURAL
RESOURCES?
MR. VILLEGAS. Could Commissioner Davide explain that?
MR. DAVIDE. Madam President, with the use of NATURAL RESOURCES here, it would necessarily
include all lands of the public domain, our marine resources, forests, parks and so on. So we would like
to limit the scope of these service contracts to those areas really where these may be needed, the
exploitation, development and exploration of minerals, petroleum and other mineral oils. And so, we
believe that we should really, if we want to grant service contracts at all, limit the same to only those
particular areas where Filipino capital may not be sufficient, and not to all natural resources.
MR. SUAREZ. Just a point of clarification again, Madam President. When the Commissioner made those
enumerations and specifications, I suppose he deliberately did not include agricultural land?
MR. DAVIDE. That is precisely the reason we have to enumerate what these resources are into which service
contracts may enter. So, beyond the reach of any service contract will be lands of the public domain,
timberlands, forests, marine resources, fauna and flora, wildlife and national parks.
[47]

After the Jamir amendment was voted upon and approved by a vote of 21 to 10 with 2 abstentions, Commissioner
Davide made the following statement, which is very relevant to our quest:
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am very glad that Commissioner Padilla emphasized minerals, petroleum and mineral
oils. The Commission has just approved the possible foreign entry into the development, exploration
and utilization of these minerals, petroleum and other mineral oils by virtue of the Jamir amendment. I
voted in favor of the Jamir amendment because it will eventually give way to vesting in exclusively
Filipino citizens and corporations wholly owned by Filipino citizens the right to utilize the other natural
resources. This means that as a matter of policy, natural resources should be utilized and exploited only
by Filipino citizens or corporations wholly owned by such citizens. But by virtue of the Jamir
amendment, since we feel that Filipino capital may not be enough for the development and utilization of
minerals, petroleum and other mineral oils, the President can enter into service contracts with foreign
corporations precisely for the development and utilization of such resources. And so, there is nothing to
fear that we will stagnate in the development of minerals, petroleum and mineral oils because we now
allow service contracts. x x x.
[48]

The foregoing are mere fragments of the framers lengthy discussions of the provision dealing with agreements x x x
involving either technical or financial assistance, which ultimately became paragraph 4 of Section 2 of Article XII of the
Constitution. Beyond any doubt, the members of the ConCom were actually debating about the martial-law-era service
contracts for which they were crafting appropriate safeguards.
In the voting that led to the approval of Article XII by the ConCom, the explanations given by Commissioners
Gascon, Garcia and Tadeo indicated that they had voted to reject this provision on account of their objections to the
constitutionalization of the service contract concept.
Mr. Gascon said, I felt that if we would constitutionalize any provision on service contracts, this should always be with
the concurrence of Congress and not guided only by a general law to be promulgated by Congress.
[49]
Mr. Garcia
explained, Service contracts are given constitutional legitimization in Sec. 3, even when they have been proven to be inimical to
the interests of the nation, providing, as they do, the legal loophole for the exploitation of our natural resources for the benefit of
foreign interests.
[50]
Likewise, Mr. Tadeo cited inter alia the fact that service contracts continued to subsist, enabling
foreign interests to benefit from our natural resources.
[51]
It was hardly likely that these gentlemen would have
objected so strenuously, had the provision called for mere technical or financial assistance and nothing more.
The deliberations of the ConCom and some commissioners explanation of their votes leave no room for doubt that
the service contract concept precisely underpinned the commissioners understanding of the agreements involving
either technical or financial assistance.
Summation of the
Concom Deliberations
At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations, as
follows:
In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring toagreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize the
abuses prevalent during the marital law regime. In brief, they were going to permit service contracts with
foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to
the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves
or limits to Filipino citizens -- and corporations at least 60 percent of which is owned by such citizens
-- the exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for
foreign investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered
adequate and reasonable. But some of them, having more radical leanings, wanted to ban service
contracts altogether; for them, the provision would permit aliens to exploit and benefit from the
nations natural resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyones viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4
allowing service contracts with foreign corporations as an exception to the general norm in paragraph
1 of Section 2 of the same article -- was resoundingly approved by a vote of 32 to 7, with 2
abstentions.
Agreements Involving Technical
or Financial Assistance Are
Service Contracts With Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial
assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are
between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or
owner of the works. In the new service contracts, the foreign contractors provide capital, technology and technical
know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant
thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an agreement is presented to
the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to
law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and interpose timely objections, if any.
Use of the Record of the
ConCom to Ascertain Intent
At this juncture, we shall address, rather than gloss over, the use of the framers intent approach, and the
criticism hurled by petitioners who quote a ruling of this Court:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive
at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention are of
value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no
light as to the views of the large majority who did not talk, much less the mass of our fellow citizens whose votes at the
polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what
appears upon its face. The proper interpretation therefore depends more on how it was understood by the people adopting it than
in the framers understanding thereof.
[52]

The notion that the deliberations reflect only the views of those members who spoke out and not the views of the
majority who remained silent should be clarified. We must never forget that those who spoke out were heard by those
who remained silent and did not react. If the latter were silent because they happened not to be present at the time,
they are presumed to have read the minutes and kept abreast of the deliberations. By remaining silent, they are deemed
to have signified their assent to and/or conformity with at least some of the views propounded or their lack of
objections thereto. It was incumbent upon them, as representatives of the entire Filipino people, to follow the
deliberations closely and to speak their minds on the matter if they did not see eye to eye with the proponents of the
draft provisions.
In any event, each and every one of the commissioners had the opportunity to speak out and to vote on the
matter. Moreover, the individual explanations of votes are on record, and they show where each delegate stood on the
issues. In sum, we cannot completely denigrate the value or usefulness of the record of the ConCom, simply
because certain members chose not to speak out.
It is contended that the deliberations therein did not necessarily reflect the thinking of the voting population that
participated in the referendum and ratified the Constitution. Verily, whether we like it or not, it is a bit too much to
assume that every one of those who voted to ratify the proposed Charter did so only after carefully reading and mulling
over it, provision by provision.
Likewise, it appears rather extravagant to assume that every one of those who did in fact bother to read the draft
Charter actually understood the import of its provisions, much less analyzed it vis--vis the previous Constitutions. We
believe that in reality, a good percentage of those who voted in favor of it did so more out of faith and trust. For them,
it was the product of the hard work and careful deliberation of a group of intelligent, dedicated and trustworthy men
and women of integrity and conviction, whose love of country and fidelity to duty could not be questioned.
In short, a large proportion of the voters voted yes because the drafters, or a majority of them, endorsed the
proposed Constitution. What this fact translates to is the inescapable conclusion that many of the voters in the
referendum did not form their own isolated judgment about the draft Charter, much less about particular provisions
therein. They only relied or fell back and acted upon the favorable endorsement or recommendation of the framers as a
group. In other words, by voting yes, they may be deemed to have signified their voluntary adoption of the
understanding and interpretation of the delegates with respect to the proposed Charter and its particular
provisions. If its good enough for them, its good enough for me; or, in many instances, If its good enough for
President Cory Aquino, its good enough for me.
And even for those who voted based on their own individual assessment of the proposed Charter, there is no
evidence available to indicate that their assessment or understanding of its provisions was in fact different from that of
the drafters. This unwritten assumption seems to be petitioners as well. For all we know, this segment of voters must
have read and understood the provisions of the Constitution in the same way the framers had, an assumption that
would account for the favorable votes.
Fundamentally speaking, in the process of rewriting the Charter, the members of the ConCom as a group were
supposed to represent the entire Filipino people. Thus, we cannot but regard their views as being very much indicative
of the thinking of the people with respect to the matters deliberated upon and to the Charter as a whole.
It is therefore reasonable and unavoidable to make the following conclusion, based on the above
arguments. As written by the framers and ratified and adopted by the people, the Constitution allows the continued
use of service contracts with foreign corporations -- as contractors who would invest in and operate and manage
extractive enterprises, subject to the full control and supervision of the State -- sans the abuses of the past
regime. The purpose is clear: to develop and utilize our mineral, petroleum and other resources on a large scale for
the immediate and tangible benefit of the Filipino people.
In view of the foregoing discussion, we should reverse the Decision of January 27, 2004, and in fact now hold a
view different from that of the Decision, which had these findings: (a) paragraph 4 of Section 2 of Article XII limits
foreign involvement in the local mining industry to agreements strictly for either financial or technical assistance only;
(b) the same paragraph precludes agreements that grant to foreign corporations the management of local mining
operations, as such agreements are purportedly in the nature of service contracts as these were understood under the
1973 Constitution; (c) these service contracts were supposedly de-constitutionalized and proscribed by the omission
of the term service contracts from the 1987 Constitution; (d) since the WMCP FTAA contains provisions permitting the
foreign contractor to manage the concern, the said FTAA is invalid for being a prohibited service contract; and (e)
provisions of RA 7942 and DAO 96-40, which likewise grant managerial authority to the foreign contractor, are also
invalid and unconstitutional.
Ultimate Test: States Control
Determinative of Constitutionality
But we are not yet at the end of our quest. Far from it. It seems that we are confronted with a possible collision of
constitutional provisions. On the one hand, paragraph 1 of Section 2 of Article XII explicitly mandates the State to
exercise full control and supervision over the exploration, development and utilization of natural resources. On the
other hand, paragraph 4 permits safeguarded service contracts with foreign contractors. Normally, pursuant thereto,
the contractors exercise management prerogatives over the mining operations and the enterprise as a whole. There is
thus a legitimate ground to be concerned that either the States full control and supervision may rule out any exercise of
management authority by the foreign contractor; or, the other way around, allowing the foreign contractor full
management prerogatives may ultimately negate the States full control and supervision.
Ut Magis Valeat
Quam Pereat
Under the third principle of constitutional construction laid down in Francisco -- ut magis valeat quam pereat -- every
part of the Constitution is to be given effect, and the Constitution is to be read and understood as a harmonious
whole. Thus, full control and supervision by the State must be understood as one that does not preclude the legitimate exercise
of management prerogatives by the foreign contractor. Before any further discussion, we must stress the primacy and
supremacy of the principle of sovereignty and State control and supervision over all aspects of exploration,
development and utilization of the countrys natural resources, as mandated in the first paragraph of Section 2 of
Article XII.
But in the next breadth we have to point out that full control and supervision cannot be taken literally to mean
that the State controls and supervises everything involved, down to the minutest details, and makes all decisions required in
the mining operations. This strained concept of control and supervision over the mining enterprise would render
impossible the legitimate exercise by the contractors of a reasonable degree of management prerogative and authority
necessary and indispensable to their proper functioning.
For one thing, such an interpretation would discourage foreign entry into large-scale exploration, development
and utilization activities; and result in the unmitigated stagnation of this sector, to the detriment of our nations
development. This scenario renders paragraph 4 inoperative and useless. And as respondents have correctly pointed
out, the government does not have to micro-manage the mining operations and dip its hands into the day-to-day affairs
of the enterprise in order for it to be considered as having full control and supervision.
The concept of control
[53]
adopted in Section 2 of Article XII must be taken to mean less than dictatorial, all-
encompassing control; but nevertheless sufficient to give the State the power to direct, restrain, regulate and govern the
affairs of the extractive enterprises. Control by the State may be on a macro level, through the establishment of policies,
guidelines, regulations, industry standards and similar measures that would enable the government to control the
conduct of affairs in various enterprises and restrain activities deemed not desirable or beneficial.
The end in view is ensuring that these enterprises contribute to the economic development and general welfare of
the country, conserve the environment, and uplift the well-being of the affected local communities. Such a concept of
control would be compatible with permitting the foreign contractor sufficient and reasonable management authority
over the enterprise it invested in, in order to ensure that it is operating efficiently and profitably, to protect its
investments and to enable it to succeed.
The question to be answered, then, is whether RA 7942 and its Implementing Rules enable the government to
exercise that degree of control sufficient to direct and regulate the conduct of affairs of individual enterprises and
restrain undesirable activities.
On the resolution of these questions will depend the validity and constitutionality of certain provisions of the
Philippine Mining Act of 1995 (RA 7942) and its Implementing Rules and Regulations (DAO 96-40), as well as the
WMCP FTAA.
Indeed, petitioners charge
[54]
that RA 7942, as well as its Implementing Rules and Regulations, makes it possible for
FTAA contracts to cede full control and management of mining enterprises over to fully foreign-owned corporations,
with the result that the State is allegedly reduced to a passive regulator dependent on submitted plans and reports, with
weak review and audit powers. The State does not supposedly act as the owner of the natural resources for and on
behalf of the Filipino people; it practically has little effective say in the decisions made by the enterprise. Petitioners
then conclude that the law, the implementing regulations, and the WMCP FTAA cede beneficial ownership of the
mineral resources to the foreign contractor.
A careful scrutiny of the provisions of RA 7942 and its Implementing Rules belies petitioners
claims. Paraphrasing the Constitution, Section 4 of the statute clearly affirms the States control thus:
Sec. 4. Ownership of Mineral Resources. Mineral resources are owned by the State and the exploration, development, utilization
and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may
enter into mineral agreements with contractors.
The State shall recognize and protect the rights of the indigenous cultural communities to their ancestral lands as provided for by
the Constitution.
The aforequoted provision is substantively reiterated in Section 2 of DAO 96-40 as follows:
Sec. 2. Declaration of Policy. All mineral resources in public and private lands within the territory and exclusive economic zone
of the Republic of the Philippines are owned by the State. It shall be the responsibility of the State to promote their rational
exploration, development, utilization and conservation through the combined efforts of the Government and private sector in order
to enhance national growth in a way that effectively safeguards the environment and protects the rights of affected communities.
Sufficient Control Over Mining
Operations Vested in the State
by RA 7942 and DAO 96-40
RA 7942 provides for the States control and supervision over mining operations. The following provisions thereof
establish the mechanism of inspection and visitorial rights over mining operations and institute reportorial
requirements in this manner:
1. Sec. 8 which provides for the DENRs power of over-all supervision and periodic review for the
conservation, management, development and proper use of the States mineral resources;
2. Sec. 9 which authorizes the Mines and Geosciences Bureau (MGB) under the DENR to exercise direct
charge in the administration and disposition of mineral resources, and empowers the MGB to
monitor the compliance by the contractor of the terms and conditions of the mineral agreements,
confiscate surety and performance bonds, and deputize whenever necessary any member or unit of
the Phil. National Police, barangay, duly registered non-governmental organization (NGO) or any
qualified person to police mining activities;
3. Sec. 66 which vests in the Regional Director exclusive jurisdiction over safety inspections of all
installations, whether surface or underground, utilized in mining operations.
4. Sec. 35, which incorporates into all FTAAs the following terms, conditions and warranties:
(g) Mining operations shall be conducted in accordance with the provisions of the Act and its
IRR.
(h) Work programs and minimum expenditures commitments.
x x x x x x x x x
(k) Requiring proponent to effectively use appropriate anti-pollution technology and
facilities to protect the environment and restore or rehabilitate mined-out areas.
(l) The contractors shall furnish the Government records of geologic, accounting and other
relevant data for its mining operation, and that books of accounts and records shall be
open for inspection by the government. x x x.
(m) Requiring the proponent to dispose of the minerals at the highest price and more
advantageous terms and conditions.
(n) x x x x x x x x x
(o) Such other terms and conditions consistent with the Constitution and with this Act as the
Secretary may deem to be for the best interest of the State and the welfare of the Filipino
people.
The foregoing provisions of Section 35 of RA 7942 are also reflected and implemented in Section 56 (g), (h), (l), (m)
and (n) of the Implementing Rules, DAO 96-40.
Moreover, RA 7942 and DAO 96-40 also provide various stipulations confirming the governments control over
mining enterprises:
The contractor is to relinquish to the government those portions of the contract area not needed for
mining operations and not covered by any declaration of mining feasibility (Section 35-e, RA 7942; Section
60, DAO 96-40).
The contractor must comply with the provisions pertaining to mine safety, health and environmental
protection (Chapter XI, RA 7942; Chapters XV and XVI, DAO 96-40).
For violation of any of its terms and conditions, government may cancel an FTAA. (Chapter XVII, RA
7942; Chapter XXIV, DAO 96-40).
An FTAA contractor is obliged to open its books of accounts and records for inspection by the
government (Section 56-m, DAO 96-40).
An FTAA contractor has to dispose of the minerals and by-products at the highest market price and
register with the MGB a copy of the sales agreement (Section 56-n, DAO 96-40).
MGB is mandated to monitor the contractors compliance with the terms and conditions of the FTAA;
and to deputize, when necessary, any member or unit of the Philippine National Police, the barangay or a
DENR-accredited nongovernmental organization to police mining activities (Section 7-d and -f, DAO 96-
40).
An FTAA cannot be transferred or assigned without prior approval by the President (Section 40, RA 7942;
Section 66, DAO 96-40).
A mining project under an FTAA cannot proceed to the construction/development/utilization stage,
unless its Declaration of Mining Project Feasibility has been approved by government (Section 24, RA
7942).
The Declaration of Mining Project Feasibility filed by the contractor cannot be approved without
submission of the following documents:
1. Approved mining project feasibility study (Section 53-d, DAO 96-40)
2. Approved three-year work program (Section 53-a-4, DAO 96-40)
3. Environmental compliance certificate (Section 70, RA 7942)
4. Approved environmental protection and enhancement program (Section 69, RA 7942)
5. Approval by the Sangguniang Panlalawigan/Bayan/Barangay (Section 70, RA 7942;
Section 27, RA 7160)
6. Free and prior informed consent by the indigenous peoples concerned, including
payment of royalties through a Memorandum of Agreement (Section 16, RA 7942;
Section 59, RA 8371)
The FTAA contractor is obliged to assist in the development of its mining
community, promotion of the general welfare of its inhabitants, and development of science and mining
technology (Section 57, RA 7942).
The FTAA contractor is obliged to submit reports (on quarterly, semi-annual
or annual basis as the case may be; per Section 270, DAO 96-40), pertaining to the following:
1. Exploration
2. Drilling
3. Mineral resources and reserves
4. Energy consumption
5. Production
6. Sales and marketing
7. Employment
8. Payment of taxes, royalties, fees and other Government Shares
9. Mine safety, health and environment
10. Land use
11. Social development
12. Explosives consumption
An FTAA pertaining to areas within government reservations cannot be
granted without a written clearance from the government agencies concerned (Section 19, RA 7942;
Section 54, DAO 96-40).
An FTAA contractor is required to post a financial guarantee bond in favor of
the government in an amount equivalent to its expenditures obligations for any particular year. This
requirement is apart from the representations and warranties of the contractor that it has access to all the
financing, managerial and technical expertise and technology necessary to carry out the objectives of the
FTAA (Section 35-b, -e, and -f, RA 7942).
Other reports to be submitted by the contractor, as required under DAO 96-
40, are as follows: an environmental report on the rehabilitation of the mined-out area and/or mine
waste/tailing covered area, and anti-pollution measures undertaken (Section 35-a-2); annual reports of
the mining operations and records of geologic accounting (Section 56-m); annual progress reports and
final report of exploration activities (Section 56-2).
Other programs required to be submitted by the contractor, pursuant to DAO
96-40, are the following: a safety and health program (Section 144); an environmental work program
(Section 168); an annual environmental protection and enhancement program (Section 171).
The foregoing gamut of requirements, regulations, restrictions and limitations imposed upon the FTAA contractor
by the statute and regulations easily overturns petitioners contention. The setup under RA 7942 and DAO 96-40 hardly
relegates the State to the role of a passive regulator dependent on submitted plans and reports. On the contrary, the
government agencies concerned are empowered to approve or disapprove -- hence, to influence, direct and change --
the various work programs and the corresponding minimum expenditure commitments for each of the exploration,
development and utilization phases of the mining enterprise.
Once these plans and reports are approved, the contractor is bound to comply with its commitments
therein. Figures for mineral production and sales are regularly monitored and subjected to government review, in
order to ensure that the products and by-products are disposed of at the best prices possible; even copies of sales
agreements have to be submitted to and registered with MGB. And the contractor is mandated to open its books of
accounts and records for scrutiny, so as to enable the State to determine if the government share has been fully paid.
The State may likewise compel the contractors compliance with mandatory requirements on mine safety, health
and environmental protection, and the use of anti-pollution technology and facilities. Moreover, the contractor is also
obligated to assist in the development of the mining community and to pay royalties to the indigenous peoples
concerned.
Cancellation of the FTAA may be the penalty for violation of any of its terms and conditions and/or
noncompliance with statutes or regulations. This general, all-around, multipurpose sanction is no trifling matter,
especially to a contractor who may have yet to recover the tens or hundreds of millions of dollars sunk into a mining
project.
Overall, considering the provisions of the statute and the regulations just discussed, we believe that the State
definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set directions
and objectives, and detect deviations and noncompliance by the contractor; likewise, it has the capability to enforce
compliance and to impose sanctions, should the occasion therefor arise.
In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the contrary, it
will have to follow the government line if it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-
40 vest in the government more than a sufficient degree of control and supervision over the conduct of mining
operations.
Section 3(aq) of RA 7942
Not Unconstitutional
An objection has been expressed that Section 3(aq)
[55]
of RA 7942 -- which allows a foreign contractor to apply for
and hold an exploration permit -- is unconstitutional. The reasoning is that Section 2 of Article XII of the Constitution
does not allow foreign-owned corporations to undertake mining operations directly. They may act only as contractors
of the State under an FTAA; and the State, as the party directly undertaking exploitation of its natural resources, must
hold through the government all exploration permits and similar authorizations. Hence, Section 3(aq), in permitting
foreign-owned corporations to hold exploration permits, is unconstitutional.
The objection, however, is not well-founded. While the Constitution mandates the State to exercise full control and
supervision over the exploitation of mineral resources, nowhere does it require the government to hold all exploration permits
and similar authorizations. In fact, there is no prohibition at all against foreign or local corporations or contractors
holding exploration permits. The reason is not hard to see.
Pursuant to Section 20 of RA 7942, an exploration permit merely grants to a qualified person the right to conduct
exploration for all minerals in specified areas. Such a permit does not amount to an authorization to extract and carry off the
mineral resources that may be discovered. This phase involves nothing but expenditures for exploring the contract area and
locating the mineral bodies. As no extraction is involved, there are no revenues or incomes to speak of. In short, the
exploration permit is an authorization for the grantee to spend its own funds on exploration programs that are pre-
approved by the government, without any right to recover anything should no minerals in commercial quantities be
discovered. The State risks nothing and loses nothing by granting these permits to local or foreign firms; in fact, it
stands to gain in the form of data generated by the exploration activities.
Pursuant to Section 24 of RA 7942, an exploration permit grantee who determines the commercial viability of a
mining area may, within the term of the permit, file with the MGB a declaration of mining project feasibility
accompanied by a work program for development. The approval of the mining project feasibility and compliance with
other requirements of RA 7942 vests in the grantee the exclusive right to an MPSA or any other mineral agreement, or
to an FTAA.
Thus, the permit grantee may apply for an MPSA, a joint venture agreement, a co-production agreement, or an
FTAA over the permit area, and the application shall be approved if the permit grantee meets the necessary
qualifications and the terms and conditions of any such agreement. Therefore, the contractor will be in a position to
extract minerals and earn revenues only when the MPSA or another mineral agreement, or an FTAA, is granted. At
that point, the contractors rights and obligations will be covered by an FTAA or a mineral agreement.
But prior to the issuance of such FTAA or mineral agreement, the exploration permit grantee (or prospective
contractor) cannot yet be deemed to have entered into any contract or agreement with the State, and the grantee would
definitely need to have some document or instrument as evidence of its right to conduct exploration works within the
specified area. This need is met by the exploration permit issued pursuant to Sections 3(aq), 20 and 23 of RA 7942.
In brief, the exploration permit serves a practical and legitimate purpose in that it protects the interests and
preserves the rights of the exploration permit grantee (the would-be contractor) -- foreign or local -- during the
period of time that it is spending heavily on exploration works, without yet being able to earn revenues to recoup
any of its investments and expenditures. Minus this permit and the protection it affords, the exploration works and
expenditures may end up benefiting only claim-jumpers. Such a possibility tends to discourage investors and
contractors. Thus, Section 3(aq) of RA 7942 may not be deemed unconstitutional.
The Terms of the WMCP FTAA
A Deference to State Control
A perusal of the WMCP FTAA also reveals a slew of stipulations providing for State control and supervision:
1. The contractor is obligated to account for the value of production and sale of minerals (Clause 1.4).
2. The contractors work program, activities and budgets must be approved by/on behalf of the State
(Clause 2.1).
3. The DENR secretary has the power to extend the exploration period (Clause 3.2-a).
4. Approval by the State is necessary for incorporating lands into the FTAA contract area (Clause 4.3-c).
5. The Bureau of Forest Development is vested with discretion in regard to approving the inclusion of forest
reserves as part of the FTAA contract area (Clause 4.5).
6. The contractor is obliged to relinquish periodically parts of the contract area not needed for exploration
and development (Clause 4.6).
7. A Declaration of Mining Feasibility must be submitted for approval by the State (Clause 4.6-b).
8. The contractor is obligated to report to the State its exploration activities (Clause 4.9).
9. The contractor is required to obtain State approval of its work programs for the succeeding two-year
periods, containing the proposed work activities and expenditures budget related to exploration (Clause
5.1).
10. The contractor is required to obtain State approval for its proposed expenditures for exploration activities
(Clause 5.2).
11. The contractor is required to submit an annual report on geological, geophysical, geochemical and other
information relating to its explorations within the FTAA area (Clause 5.3-a).
12. The contractor is to submit within six months after expiration of exploration period a final report on all its
findings in the contract area (Clause 5.3-b).
13. The contractor, after conducting feasibility studies, shall submit a declaration of mining feasibility, along
with a description of the area to be developed and mined, a description of the proposed mining
operations and the technology to be employed, and a proposed work program for the development
phase, for approval by the DENR secretary (Clause 5.4).
14. The contractor is obliged to complete the development of the mine, including construction of the
production facilities, within the period stated in the approved work program (Clause 6.1).
15. The contractor is obligated to submit for approval of the DENR secretary a work program covering each
period of three fiscal years (Clause 6.2).
16. The contractor is to submit reports to the DENR secretary on the production, ore reserves, work
accomplished and work in progress, profile of its work force and management staff, and other technical
information (Clause 6.3).
17. Any expansions, modifications, improvements and replacements of mining facilities shall be subject to
the approval of the secretary (Clause 6.4).
18. The State has control with respect to the amount of funds that the contractor may borrow within the
Philippines (Clause 7.2).
19. The State has supervisory power with respect to technical, financial and marketing issues (Clause 10.1-a).
20. The contractor is required to ensure 60 percent Filipino equity in the contractor, within ten years of
recovering specified expenditures, unless not so required by subsequent legislation (Clause 10.1).
21. The State has the right to terminate the FTAA for the contractors unremedied substantial breach thereof
(Clause 13.2);
22. The States approval is needed for any assignment of the FTAA by the contractor to an entity other than
an affiliate (Clause 14.1).
We should elaborate a little on the work programs and budgets, and what they mean with respect to the States
ability to exercise full control and effective supervision over the enterprise. For instance, throughout the initial five-
year exploration and feasibility phase of the project, the contractor is mandated by Clause 5.1 of the WMCP FTAA to
submit a series of work programs (copy furnished the director of MGB) to the DENR secretary for approval. The
programs will detail the contractors proposed exploration activities and budget covering each subsequent period of two
fiscal years.
In other words, the concerned government officials will be informed beforehand of the proposed exploration
activities and expenditures of the contractor for each succeeding two-year period, with the right to approve/disapprove
them or require changes or adjustments therein if deemed necessary.
Likewise, under Clause 5.2(a), the amount that the contractor was supposed to spend for exploration activities
during the first contract year of the exploration period was fixed at not less than P24 million; and then for the
succeeding years, the amount shall be as agreed between the DENR secretary and the contractor prior to the
commencement of each subsequent fiscal year. If no such agreement is arrived upon, the previous years expenditure
commitment shall apply.
This provision alone grants the government through the DENR secretary a very big say in the exploration phase of
the project. This fact is not something to be taken lightly, considering that the government has absolutely no contribution to
the exploration expenditures or work activities and yet is given veto power over such a critical aspect of the project. We cannot but
construe as very significant such a degree of control over the project and, resultantly, over the mining enterprise itself.
Following its exploration activities or feasibility studies, if the contractor believes that any part of the contract area
is likely to contain an economic mineral resource, it shall submit to the DENR secretary a declaration of mining
feasibility (per Clause 5.4 of the FTAA), together with a technical description of the area delineated for development
and production, a description of the proposed mining operations including the technology to be used, a work program for
development, an environmental impact statement, and a description of the contributions to the economic and general welfare of the
country to be generated by the mining operations (pursuant to Clause 5.5).
The work program for development is subject to the approval of the DENR secretary. Upon its approval, the contractor
must comply with it and complete the development of the mine, including the construction of production facilities and
installation of machinery and equipment, within the period provided in the approved work program for development
(per Clause 6.1).
Thus, notably, the development phase of the project is likewise subject to the control and supervision of the
government. It cannot be emphasized enough that the proper and timely construction and deployment of the
production facilities and the development of the mine are of pivotal significance to the success of the mining
venture. Any missteps here will potentially be very costly to remedy. Hence, the submission of the work program for
development to the DENR secretary for approval is particularly noteworthy, considering that so many millions of
dollars worth of investments -- courtesy of the contractor -- are made to depend on the States consideration and action.
Throughout the operating period, the contractor is required to submit to the DENR secretary for approval, copy
furnished the director of MGB, work programs covering each period of three fiscal years (per Clause 6.2). During the
same period (per Clause 6.3), the contractor is mandated to submit various quarterly and annual reports to the DENR
secretary, copy furnished the director of MGB, on the tonnages of production in terms of ores and concentrates, with
corresponding grades, values and destinations; reports of sales; total ore reserves, total tonnage of ores, work
accomplished and work in progress (installations and facilities related to mining operations), investments made or
committed, and so on and so forth.
Under Section VIII, during the period of mining operations, the contractor is also required to submit to the DENR
secretary (copy furnished the director of MGB) the work program and corresponding budget for the contract area,
describing the mining operations that are proposed to be carried out during the period covered. The secretary is, of
course, entitled to grant or deny approval of any work program or budget and/or propose revisions thereto. Once the
program/budget has been approved, the contractor shall comply therewith.
In sum, the above provisions of the WMCP FTAA taken together, far from constituting a surrender of control and a grant of
beneficial ownership of mineral resources to the contractor in question, bestow upon the State more than adequate control
and supervision over the activities of the contractor and the enterprise.
No Surrender of Control
Under the WMCP FTAA
Petitioners, however, take aim at Clause 8.2, 8.3, and 8.5 of the WMCP FTAA which, they say, amount to a
relinquishment of control by the State, since it cannot truly impose its own discretion in respect of the submitted
work programs.
8.2. The Secretary shall be deemed to have approved any Work Programme or Budget or variation thereof submitted
by the Contractor unless within sixty (60) days after submission by the Contractor the Secretary gives notice
declining such approval or proposing a revision of certain features and specifying its reasons therefor (the
Rejection Notice).
8.3. If the Secretary gives a Rejection Notice, the Parties shall promptly meet and endeavor to agree on amendments to
the Work Programme or Budget. If the Secretary and the Contractor fail to agree on the proposed revision within
30 days from delivery of the Rejection Notice then the Work Programme or Budget or variation thereof proposed
by the Contractor shall be deemed approved, so as not to unnecessarily delay the performance of the Agreement.
8.4. x x x x x x x x x
8.5. So far as is practicable, the Contractor shall comply with any approved Work Programme and Budget. It is
recognized by the Secretary and the Contractor that the details of any Work Programmes or Budgets may require
changes in the light of changing circumstances. The Contractor may make such changes without approval of the
Secretary provided they do not change the general objective of any Work Programme, nor entail a downward
variance of more than twenty per centum (20percent) of the relevant Budget. All other variations to an approved
Work Programme or Budget shall be submitted for approval of the Secretary.
From the provisions quoted above, petitioners generalize by asserting that the government does not participate in
making critical decisions regarding the operations of the mining firm. Furthermore, while the State can require the
submission of work programs and budgets, the decision of the contractor will still prevail, if the parties have a
difference of opinion with regard to matters affecting operations and management.
We hold, however, that the foregoing provisions do not manifest a relinquishment of control. For instance, Clause
8.2 merely provides a mechanism for preventing the business or mining operations from grinding to a complete halt as
a result of possibly over-long and unjustified delays in the governments handling, processing and approval of
submitted work programs and budgets. Anyway, the provision does give the DENR secretary more than sufficient
time (60 days) to react to submitted work programs and budgets. It cannot be supposed that proper grounds for
objecting thereto, if any exist, cannot be discovered within a period of two months.
On the other hand, Clause 8.3 seeks to provide a temporary, stop-gap solution in the event a disagreement over the
submitted work program or budget arises between the State and the contractor and results in a stalemate or impasse, in
order that there will be no unreasonably long delays in the performance of the works.
These temporary or stop-gap solutions are not necessarily evil or wrong. Neither does it follow that the
government will inexorably be aggrieved if and when these temporary remedies come into play. First, avoidance of
long delays in these situations will undoubtedly redound to the benefit of the State as well as the contractor. Second,
who is to say that the work program or budget proposed by the contractor and deemed approved under Clause 8.3
would not be the better or more reasonable or more effective alternative? The contractor, being the insider, as it were,
may be said to be in a better position than the State -- an outsider looking in -- to determine what work program or
budget would be appropriate, more effective, or more suitable under the circumstances.
All things considered, we take exception to the characterization of the DENR secretary as a subservient nonentity
whom the contractor can overrule at will, on account of Clause 8.3. And neither is it true that under the same clause,
the DENR secretary has no authority whatsoever to disapprove the work program. As Respondent WMCP reasoned in
its Reply-Memorandum, the State -- despite Clause 8.3 -- still has control over the contract area and it may, as sovereign
authority, prohibit work thereon until the dispute is resolved. And ultimately, the State may terminate the agreement,
pursuant to Clause 13.2 of the same FTAA, citing substantial breach thereof. Hence, it clearly retains full and effective
control of the exploitation of the mineral resources.
On the other hand, Clause 8.5 is merely an acknowledgment of the parties need for flexibility, given that no one
can accurately forecast under all circumstances, or predict how situations may change. Hence, while approved work
programs and budgets are to be followed and complied with as far as practicable, there may be instances in which
changes will have to be effected, and effected rapidly, since events may take shape and unfold with suddenness and
urgency. Thus, Clause 8.5 allows the contractor to move ahead and make changes without the express or implicit
approval of the DENR secretary. Such changes are, however, subject to certain conditions that will serve to limit or
restrict the variance and prevent the contractor from straying very far from what has been approved.
Clause 8.5 provides the contractor a certain amount of flexibility to meet unexpected situations, while still
guaranteeing that the approved work programs and budgets are not abandoned altogether. Clause 8.5 does not
constitute proof that the State has relinquished control. And ultimately, should there be disagreement with the actions
taken by the contractor in this instance as well as under Clause 8.3 discussed above, the DENR secretary may resort to
cancellation/termination of the FTAA as the ultimate sanction.
Discretion to Select Contract
Area Not an Abdication of Control
Next, petitioners complain that the contractor has full discretion to select -- and the government has no say
whatsoever as to -- the parts of the contract area to be relinquished pursuant to Clause 4.6 of the WMCP FTAA.
[56]
This
clause, however, does not constitute abdication of control. Rather, it is a mere acknowledgment of the fact that the
contractor will have determined, after appropriate exploration works, which portions of the contract area do not contain
minerals in commercial quantities sufficient to justify developing the same and ought therefore to be relinquished. The
State cannot just substitute its judgment for that of the contractor and dictate upon the latter which areas to give up.
Moreover, we can be certain that the contractors self-interest will propel proper and efficient
relinquishment. According to private respondent,
[57]
a mining company tries to relinquish as much non-mineral areas as soon
as possible, because the annual occupation fees paid to the government are based on the total hectarage of the contract area,
net of the areas relinquished. Thus, the larger the remaining area, the heftier the amount of occupation fees to be paid by the
contractor. Accordingly, relinquishment is not an issue, given that the contractor will not want to pay the annual occupation
fees on the non-mineral parts of its contract area. Neither will it want to relinquish promising sites, which other contractors
may subsequently pick up.
Government Not
a Subcontractor
Petitioners further maintain that the contractor can compel the government to exercise its power of eminent
domain to acquire surface areas within the contract area for the contractors use. Clause 10.2 (e) of the WMCP FTAA
provides that the government agrees that the contractor shall (e) have the right to require the Government at the
Contractors own cost, to purchase or acquire surface areas for and on behalf of the Contractor at such price and terms as may be
acceptable to the contractor. At the termination of this Agreement such areas shall be sold by public auction or tender and the
Contractor shall be entitled to reimbursement of the costs of acquisition and maintenance, adjusted for inflation, from the proceeds
of sale.
According to petitioners, government becomes a subcontractor to the contractor and may, on account of this
provision, be compelled to make use of its power of eminent domain, not for public purposes but on behalf of a private party, i.e.,
the contractor. Moreover, the power of the courts to determine the amount corresponding to the constitutional
requirement of just compensation has allegedly also been contracted away by the government, on account of the latters
commitment that the acquisition shall be at such terms as may be acceptable to the contractor.
However, private respondent has proffered a logical explanation for the provision.
[58]
Section 10.2(e) contemplates
a situation applicable to foreign-owned corporations. WMCP, at the time of the execution of the FTAA, was a foreign-
owned corporation and therefore not qualified to own land. As contractor, it has at some future date to construct the
infrastructure -- the mine processing plant, the camp site, the tailings dam, and other infrastructure -- needed for the
large-scale mining operations. It will then have to identify and pinpoint, within the FTAA contract area, the particular
surface areas with favorable topography deemed ideal for such infrastructure and will need to acquire the surface
rights. The State owns the mineral deposits in the earth, and is also qualified to own land.
Section 10.2(e) sets forth the mechanism whereby the foreign-owned contractor, disqualified to own land, identifies
to the government the specific surface areas within the FTAA contract area to be acquired for the mine
infrastructure. The government then acquires ownership of the surface land areas on behalf of the contractor, in order
to enable the latter to proceed to fully implement the FTAA.
The contractor, of course, shoulders the purchase price of the land. Hence, the provision allows it, after
termination of the FTAA, to be reimbursed from proceeds of the sale of the surface areas, which the government will
dispose of through public bidding. It should be noted that this provision will not be applicable to Sagittarius as the
present FTAA contractor, since it is a Filipino corporation qualified to own and hold land. As such, it may therefore
freely negotiate with the surface rights owners and acquire the surface property in its own right.
Clearly, petitioners have needlessly jumped to unwarranted conclusions, without being aware of the rationale for
the said provision. That provision does not call for the exercise of the power of eminent domain -- and determination of
just compensation is not an issue -- as much as it calls for a qualified party to acquire the surface rights on behalf of a
foreign-owned contractor.
Rather than having the foreign contractor act through a dummy corporation, having the State do the purchasing is
a better alternative. This will at least cause the government to be aware of such transaction/s and foster transparency in
the contractors dealings with the local property owners. The government, then, will not act as a subcontractor of the
contractor; rather, it will facilitate the transaction and enable the parties to avoid a technical violation of the Anti-Dummy Law.
Absence of Provision
Requiring Sale at Posted
Prices Not Problematic
The supposed absence of any provision in the WMCP FTAA directly and explicitly requiring the contractor to sell
the mineral products at posted or market prices is not a problem. Apart from Clause 1.4 of the FTAA obligating the
contractor to account for the total value of mineral production and the sale of minerals, we can also look to Section 35 of
RA 7942, which incorporates into all FTAAs certain terms, conditions and warranties, including the following:
(l) The contractors shall furnish the Government records of geologic, accounting and other relevant data for its mining
operation, and thatbooks of accounts and records shall be open for inspection by the government. x x x
(m) Requiring the proponent to dispose of the minerals at the highest price and more advantageous terms and
conditions.
For that matter, Section 56(n) of DAO 99-56 specifically obligates an FTAA contractor to dispose of the minerals
and by-products at the highest market price and to register with the MGB a copy of the sales agreement. After all, the
provisions of prevailing statutes as well as rules and regulations are deemed written into contracts.
Contractors Right to Mortgage
Not Objectionable Per Se
Petitioners also question the absolute right of the contractor under Clause 10.2 (l) to mortgage and encumber not
only its rights and interests in the FTAA and the infrastructure and improvements introduced, but also the mineral
products extracted. Private respondents do not touch on this matter, but we believe that this provision may have to do
with the conditions imposed by the creditor-banks of the then foreign contractor WMCP to secure the lendings made or
to be made to the latter. Ordinarily, banks lend not only on the security of mortgages on fixed assets, but also on
encumbrances of goods produced that can easily be sold and converted into cash that can be applied to the repayment
of loans. Banks even lend on the security of accounts receivable that are collectible within 90 days.
[59]

It is not uncommon to find that a debtor corporation has executed deeds of assignment by way of security over
the production for the next twelve months and/or the proceeds of the sale thereof -- or the corresponding accounts
receivable, if sold on terms -- in favor of its creditor-banks. Such deeds may include authorizing the creditors to sell the
products themselves and to collect the sales proceeds and/or the accounts receivable.
Seen in this context, Clause 10.2(l) is not something out of the ordinary or objectionable. In any case, as will be
explained below, even if it is allowed to mortgage or encumber the mineral end-products themselves, the contractor is not
freed of its obligation to pay the government its basic and additional shares in the net mining revenue, which is the
essential thing to consider.
In brief, the alarum raised over the contractors right to mortgage the minerals is simply unwarranted. Just the
same, the contractor must account for the value of mineral production and the sales proceeds therefrom. Likewise,
under the WMCP FTAA, the government remains entitled to its sixty percent share in the net mining revenues of the
contractor. The latters right to mortgage the minerals does not negate the States right to receive its share of net mining
revenues.
Shareholders Free
to Sell Their Stocks
Petitioners likewise criticize Clause 10.2(k), which gives the contractor authority to change its equity structure at
any time. This provision may seem somewhat unusual, but considering that WMCP then was 100 percent foreign-
owned, any change would mean that such percentage would either stay unaltered or be decreased in favor of Filipino
ownership. Moreover, the foreign-held shares may change hands freely. Such eventuality is as it should be.
We believe it is not necessary for government to attempt to limit or restrict the freedom of the shareholders in the
contractor to freely transfer, dispose of or encumber their shareholdings, consonant with the unfettered exercise of their
business judgment and discretion. Rather, what is critical is that, regardless of the identity, nationality and percentage
ownership of the various shareholders of the contractor -- and regardless of whether these shareholders decide to take the company
public, float bonds and other fixed-income instruments, or allow the creditor-banks to take an equity position in the company -- the
foreign-owned contractor is always in a position to render the services required under the FTAA, under the direction and control of
the government.
Contractors Right to Ask
For Amendment Not Absolute
With respect to Clauses 10.4(e) and (i), petitioners complain that these provisions bind government to allow
amendments to the FTAA if required by banks and other financial institutions as part of the conditions for new
lendings. However, we do not find anything wrong with Clause 10.4(e), which only states that if the Contractor seeks to
obtain financing contemplated herein from banks or other financial institutions, (the Government shall) cooperate with the
Contractor in such efforts provided that such financing arrangements will in no event reduce the Contractors obligations or the
Governments rights hereunder. The colatilla obviously safeguards the States interests; if breached, it will give the
government cause to object to the proposed amendments.
On the other hand, Clause 10.4(i) provides that the Government shall favourably consider any request from [the]
Contractor for amendments of this Agreement which are necessary in order for the Contractor to successfully obtain the
financing. Petitioners see in this provision a complete renunciation of control. We disagree.
The proviso does not say that the government shall grant any request for amendment. Clause 10.4(i) only obliges
the State to favorablyconsider any such request, which is not at all unreasonable, as it is not equivalent to saying that the
government must automatically consent to it. This provision should be read together with the rest of the FTAA
provisions instituting government control and supervision over the mining enterprise. The clause should not be given
an interpretation that enables the contractor to wiggle out of the restrictions imposed upon it by merely suggesting that
certain amendments are requested by the lenders.
Rather, it is up to the contractor to prove to the government that the requested changes to the FTAA are
indispensable, as they enable the contractor to obtain the needed financing; that without such contract changes, the
funders would absolutely refuse to extend the loan; that there are no other sources of financing available to the
contractor (a very unlikely scenario); and that without the needed financing, the execution of the work programs will
not proceed. But the bottom line is, in the exercise of its power of control, the government has the final say on whether
to approve or disapprove such requested amendments to the FTAA. In short, approval thereof is not mandatory on the part
of the government.
In fine, the foregoing evaluation and analysis of the aforementioned FTAA provisions sufficiently overturns
petitioners litany of objections to and criticisms of the States alleged lack of control.
Financial Benefits Not
Surrendered to the Contractor
One of the main reasons certain provisions of RA 7942 were struck down was the finding mentioned in the
Decision that beneficial ownership of the mineral resources had been conveyed to the contractor. This finding was
based on the underlying assumption, common to the said provisions, that the foreign contractor manages the mineral
resources in the same way that foreign contractors in service contracts used to. By allowing foreign contractors to manage
or operate all the aspects of the mining operation, the above-cited provisions of R.A. No. 7942 have in effect conveyed beneficial
ownership over the nations mineral resources to these contractors, leaving the State with nothing but bare title thereto.
[60]
As
the WMCP FTAA contained similar provisions deemed by the ponente to be abhorrent to the Constitution, the Decision
struck down the Contract as well.
Beneficial ownership has been defined as ownership recognized by law and capable of being enforced in the courts
at the suit of the beneficial owner.
[61]
Blacks Law Dictionary indicates that the term is used in two senses: first, to indicate
the interest of a beneficiary in trust property (also called equitable ownership); and second, to refer to the power of a
corporate shareholder to buy or sell the shares, though the shareholder is not registered in the corporations books as
the owner.
[62]
Usually, beneficial ownership is distinguished from naked ownership, which is the enjoyment of all the
benefits and privileges of ownership, as against possession of the bare title to property.
An assiduous examination of the WMCP FTAA uncovers no indication that it confers upon WMCP ownership,
beneficial or otherwise, of the mining property it is to develop, the minerals to be produced, or the proceeds of their
sale, which can be legally asserted and enforced as against the State.
As public respondents correctly point out, any interest the contractor may have in the proceeds of the mining
operation is merely the equivalent of the consideration the government has undertaken to pay for its services. All
lawful contracts require such mutual prestations, and the WMCP FTAA is no different. The contractor commits to
perform certain services for the government in respect of the mining operation, and in turn it is to be compensated out
of the net mining revenues generated from the sale of mineral products. What would be objectionable is a contractual
provision that unduly benefits the contractor far in excess of the service rendered or value delivered, if any, in exchange
therefor.
A careful perusal of the statute itself and its implementing rules reveals that neither RA 7942 nor DAO 99-56 can be
said to convey beneficial ownership of any mineral resource or product to any foreign FTAA contractor.
Equitable Sharing
of Financial Benefits
On the contrary, DAO 99-56, entitled Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance
Agreements aims to ensure an equitable sharing of the benefits derived from mineral resources. These benefits are to be
equitably shared among the government (national and local), the FTAA contractor, and the affected communities. The
purpose is to ensure sustainable mineral resources development; and a fair, equitable, competitive and stable
investment regime for the large-scale exploration, development and commercial utilization of minerals. The general
framework or concept followed in crafting the fiscal regime of the FTAA is based on the principle that the government expects real
contributions to the economic growth and general welfare of the country, while the contractor expects a reasonable return on its
investments in the project.
[63]

Specifically, under the fiscal regime, the governments expectation is, inter alia, the receipt of its share from the
taxes and fees normally paid by a mining enterprise. On the other hand, the FTAA contractor is granted by the
government certain fiscal and non-fiscal incentives
[64]
to help support the formers cash flow during the most critical
phase (cost recovery) and to make the Philippines competitive with other mineral-producing countries. After the
contractor has recovered its initial investment, it will pay all the normal taxes and fees comprising the basic share of the
government, plus an additional share for the government based on the options and formulae set forth in DAO 99-56.
The said DAO spells out the financial benefits the government will receive from an FTAA, referred to as the
Government Share, composed of a basic government share and an additional government share.
The basic government share is comprised of all direct taxes, fees and royalties, as well as other payments made by
the contractor during the term of the FTAA. These are amounts paid directly to (i) the national government (through
the Bureau of Internal Revenue, Bureau of Customs, Mines & Geosciences Bureau and other national government
agencies imposing taxes or fees), (ii) the local government units where the mining activity is conducted, and (iii)
persons and communities directly affected by the mining project. The major taxes and other payments constituting the
basic government share are enumerated below:
[65]

Payments to the National Government:
Excise tax on minerals - 2 percent of the gross output of mining operations
Contractor income tax - maximum of 32 percent of taxable income for corporations
Customs duties and fees on imported capital equipment -the rate is set by the Tariff and Customs
Code (3-7 percent for chemicals; 3-10 percent for explosives; 3-15 percent for mechanical and electrical
equipment; and 3-10 percent for vehicles, aircraft and vessels
VAT on imported equipment, goods and services 10 percent of value
Royalties due the government on minerals extracted from mineral reservations, if applicable 5
percent of the actual market value of the minerals produced
Documentary stamp tax - the rate depends on the type of transaction
Capital gains tax on traded stocks - 5 to 10 percent of the value of the shares
Withholding tax on interest payments on foreign loans -15 percent of the amount of interest
Withholding tax on dividend payments to foreign stockholders 15 percent of the dividend
Wharfage and port fees
Licensing fees (for example, radio permit, firearms permit, professional fees)
Other national taxes and fees.
Payments to Local Governments:
Local business tax - a maximum of 2 percent of gross sales or receipts (the rate varies among local
government units)
Real property tax - 2 percent of the fair market value of the property, based on an assessment level
set by the local government
Special education levy - 1 percent of the basis used for the real property tax
Occupation fees - PhP50 per hectare per year; PhP100 per hectare per year if located in a mineral
reservation
Community tax - maximum of PhP10,500 per year
All other local government taxes, fees and imposts as of the effective date of the FTAA - the rate and
the type depend on the local government
Other Payments:
Royalty to indigenous cultural communities, if any 1 percent of gross output from mining
operations
Special allowance - payment to claim owners and surface rights holders
Apart from the basic share, an additional government share is also collected from the FTAA contractor in
accordance with the second paragraph of Section 81 of RA 7942, which provides that the government share shall be
comprised of, among other things, certain taxes, duties and fees. The subject proviso reads:
The Government share in a financial or technical assistance agreement shall consist of, among other things, the contractors
corporate income tax, excise tax, special allowance, withholding tax due from the contractors foreign stockholders arising from
dividend or interest payments to the said foreign stockholder in case of a foreign national, and all such other taxes, duties and fees as
provided for under existing laws. (Bold types supplied.)
The government, through the DENR and the MGB, has interpreted the insertion of the phrase among other things as
signifying that the government is entitled to an additional government share to be paid by the contractor apart from
the basic share, in order to attain a fifty-fifty sharing of net benefits from mining.
The additional government share is computed by using one of three options or schemes presented in DAO 99-56:
(1) a fifty-fifty sharing in the cumulative present value of cash flows; (2) the share based on excess profits; and (3) the
sharing based on the cumulative net mining revenue. The particular formula to be applied will be selected by the
contractor, with a written notice to the government prior to the commencement of the development and construction
phase of the mining project.
[66]

Proceeds from the government shares arising from an FTAA contract are distributed to and received by the
different levels of government in the following proportions:
National Government 50 percent
Provincial Government 10 percent
Municipal Government 20 percent
Affected Barangays 20 percent
The portion of revenues remaining after the deduction of the basic and additional government shares is what goes
to the contractor.
Governments Share in an
FTAA Not Consisting Solely
of Taxes, Duties and Fees
In connection with the foregoing discussion on the basic and additional government shares, it is pertinent at this
juncture to mention the criticism leveled at the second paragraph of Section 81 of RA 7942, quoted earlier. The said
proviso has been denounced, because, allegedly, the States share in FTAAs with foreign contractors has been limited to
taxes, fees and duties only; in effect, the State has been deprived of ashare in the after-tax income of the enterprise. In the
face of this allegation, one has to consider that the law does not define the term among other things; and the Office of the
Solicitor General, in its Motion for Reconsideration, appears to have erroneously claimed that the phrase refers
to indirect taxes.
The law provides no definition of the term among other things, for the reason that Congress deliberately avoided
setting unnecessary limitations as to what may constitute compensation to the State for the exploitation and use of
mineral resources. But the inclusion of that phrase clearly and unmistakably reveals the legislative intent to have the State
collect more than just the usual taxes, duties and fees. Certainly, there is nothing in that phrase -- or in the second paragraph
of Section 81 -- that would suggest that such phrase should be interpreted as referring only to taxes, duties, fees and the
like.
Precisely for that reason, to fulfill the legislative intent behind the inclusion of the phrase among other things in the
second paragraph of Section 81,
[67]
the DENR structured and formulated in DAO 99-56 the said additional government
share. Such a share was to consist not of taxes, but of a share in the earnings or cash flows of the mining
enterprise. The additional government share was to be paid by the contractor on top of the basic share, so as to
achieve a fifty-fifty sharing -- between the government and the contractor -- of net benefits from mining. In the Ramos-
DeVera paper, the explanation of the three options or formulas
[68]
-- presented in DAO 99-56 for the computation of the
additional government share -- serves to debunk the claim that the governments take from an FTAA consists solely of taxes, fees
and duties.
Unfortunately, the Office of the Solicitor General -- although in possession of the relevant data -- failed to fully
replicate or echo the pertinent elucidation in the Ramos-DeVera paper regarding the three schemes or options
for computing the additional government share presented in DAO 99-56. Had due care been taken by the OSG, the Court
would have been duly apprised of the real nature and particulars of the additional share.
But, perhaps, on account of the esoteric discussion in the Ramos-DeVera paper, and the even more abstruse
mathematical jargon employed in DAO 99-56, the OSG omitted any mention of the three options. Instead, the OSG
skipped to a side discussion of the effect ofindirect taxes, which had nothing at all to do with the additional government share,
to begin with. Unfortunately, this move created the wrong impression, pointed out in Justice Antonio T. Carpios
Opinion, that the OSG had taken the position that the additional government share consisted of indirect taxes.
In any event, what is quite evident is the fact that the additional government share, as formulated, has nothing to
do with taxes -- direct or indirect -- or with duties, fees or charges. To repeat, it is over and above the basic government
share composed of taxes and duties. Simply put, the additional share may be (a) an amount that will result in a 50-50
sharing of the cumulative present value of the cash flows
[69]
of the enterprise; (b) an amount equivalent to 25 percent of
the additional or excess profits of the enterprise, reckoned against a benchmark return on investments; or (c) an amount that
will result in a fifty-fifty sharing of the cumulative net mining revenue from the end of the recovery period up to the
taxable year in question. The contractor is required to select one of the three options or formulae for computing the
additional share, an option it will apply to all of its mining operations.
As used above, net mining revenue is defined as the gross output from mining operations for a calendar year,
less deductible expenses (inclusive of taxes, duties and fees). Such revenue would roughly be equivalent to taxable
income or income before income tax. Definitely, as compared with, say, calculating the additional government share on
the basis of net income (after income tax), the net mining revenue is a better and much more reasonable basis for such
computation, as it gives a truer picture of the profitability of the company.
To demonstrate that the three options or formulations will operate as intended, Messrs. Ramos and de Vera also
performed some quantifications of the government share via a financial modeling of each of the three options discussed
above. They found that the government would get the highest share from the option that is based on the net mining
revenue, as compared with the other two options, considering only the basic and the additional shares; and that, even
though production rate decreases, the government share will actually increase when the net mining revenue and the
additional profit-based options are used.
Furthermore, it should be noted that the three options or formulae do not yet take into account the indirect taxes
[70]
and
other financial contributions
[71]
of mining projects. These indirect taxes and other contributions are real and actual benefits
enjoyed by the Filipino people and/or government. Now, if some of the quantifiable items are taken into account in the
computations, the financial modeling would show that the total government share increases to 60 percent or higher -- in
one instance, as much as 77 percent and even 89 percent -- of the net present value of total benefits from the project. As
noted in the Ramos-DeVera paper, these results are not at all shabby, considering that the contractor puts in all the
capital requirements and assumes all the risks, without the government having to contribute or risk anything.
Despite the foregoing explanation, Justice Carpio still insisted during the Courts deliberations that the
phrase among other things refers only to taxes, duties and fees. We are bewildered by his position. On the one hand, he
condemns the Mining Law for allegedly limiting the governments benefits only to taxes, duties and fees; and on the
other, he refuses to allow the State to benefit from the correct and proper interpretation of the DENR/MGB. To remove
all doubts then, we hold that the States share is not limited to taxes, duties and fees only and that the DENR/MGB
interpretation of the phrase among other things is correct. Definitely, this DENR/MGB interpretation is not only legally
sound, but also greatly advantageous to the government.
One last point on the subject. The legislature acted judiciously in not defining the terms among other things and,
instead, leaving it to the agencies concerned to devise and develop the various modes of arriving at a reasonable and
fair amount for the additional government share. As can be seen from DAO 99-56, the agencies concerned did an
admirable job of conceiving and developing not just one formula, but three different formulae for arriving at the
additional government share. Each of these options is quite fair and reasonable; and, as Messrs. Ramos and De Vera
stated, other alternatives or schemes for a possible improvement of the fiscal regime for FTAAs are also being studied
by the government.
Besides, not locking into a fixed definition of the term among other things will ultimately be more beneficial to the
government, as it will have that innate flexibility to adjust to and cope with rapidly changing circumstances,
particularly those in the international markets. Such flexibility is especially significant for the government in terms of
helping our mining enterprises remain competitive in world markets despite challenging and shifting economic
scenarios.
In conclusion, we stress that we do not share the view that in FTAAs with foreign contractors under RA 7942,
the governments share is limited to taxes, fees and duties. Consequently, we find the attacks on the second
paragraph of Section 81 of RA 7942 totally unwarranted.
Collections Not Made Uncertain
by the Third Paragraph of Section 81
The third or last paragraph of Section 81
[72]
provides that the government share in FTAAs shall be collected when
the contractor shall have recovered its pre-operating expenses and exploration and development expenditures. The
objection has been advanced that, on account of the proviso, the collection of the States share is not even certain, as
there is no time limit in RA 7942 for this grace period or recovery period.
We believe that Congress did not set any time limit for the grace period, preferring to leave it to the concerned
agencies, which are, on account of their technical expertise and training, in a better position to determine the
appropriate durations for such recovery periods. After all, these recovery periods are determined, to a great extent, by
technical and technological factors peculiar to the mining industry. Besides, with developments and advances in
technology and in the geosciences, we cannot discount the possibility of shorter recovery periods. At any rate, the
concerned agencies have not been remiss in this area. The 1995 and 1996 Implementing Rules and Regulations of RA
7942 specify that the period of recovery, reckoned from the date of commercial operation, shall be for a period not
exceeding five years, or until the date of actualrecovery, whichever comes earlier.
Approval of Pre-Operating
Expenses Required by RA 7942
Still, RA 7942 is criticized for allegedly not requiring government approval of pre-operating, exploration and
development expenses of the foreign contractors, who are in effect given unfettered discretion to determine the
amounts of such expenses. Supposedly, nothing prevents the contractors from recording such expenses in amounts
equal to the mining revenues anticipated for the first 10 or 15 years of commercial production, with the result that the
share of the State will be zero for the first 10 or 15 years. Moreover, under the circumstances, the government would be
unable to say when it would start to receive its share under the FTAA.
We believe that the argument is based on incorrect information as well as speculation. Obviously, certain crucial
provisions in the Mining Law were overlooked. Section 23, dealing with the rights and obligations of the exploration
permit grantee, states: The permittee shall undertake exploration work on the area as specified by its permit based on
an approved work program. The next proviso reads: Any expenditure in excess of the yearly budget of the approved work
program may be carried forward and credited to the succeeding years covering the duration of the permit. x x x. (underscoring
supplied)
Clearly, even at the stage of application for an exploration permit, the applicant is required to submit -- for
approval by the government -- a proposed work program for exploration, containing a yearly budget of proposed
expenditures. The State has the opportunity to pass upon (and approve or reject) such proposed expenditures, with the
foreknowledge that -- if approved -- these will subsequently be recorded as pre-operating expenses that the contractor
will have to recoup over the grace period. That is not all.
Under Section 24, an exploration permit holder who determines the commercial viability of a project covering a
mining area may, within the term of the permit, file with the Mines and Geosciences Bureau a declaration of mining
project feasibility. This declaration is to be accompanied by a work program for development for the Bureaus approval, the
necessary prelude for entering into an FTAA, a mineral production sharing agreement (MPSA), or some other mineral
agreement. At this stage, too, the government obviously has the opportunity to approve or reject the proposed work
program and budgeted expenditures for development works on the project. Such expenditures will ultimately become the
pre-operating and development costs that will have to be recovered by the contractor.
Naturally, with the submission of approved work programs and budgets for the exploration and the
development/construction phases, the government will be able to scrutinize and approve or reject such expenditures. It
will be well-informed as to the amounts of pre-operating and other expenses that the contractor may legitimately
recover and the approximate period of time needed to effect such a recovery. There is therefore no way the contractor
can just randomly post any amount of pre-operating expenses and expect to recover the same.
The aforecited provisions on approved work programs and budgets have counterparts in Section 35, which deals
with the terms and conditions exclusively applicable to FTAAs. The said provision requires certain terms and
conditions to be incorporated into FTAAs; among them, a firm commitment x x x of an amount corresponding to
the expenditure obligation that will be invested in the contract area andrepresentations and warranties x x x to timely deploy
these [financing, managerial and technical expertise and technological] resources under its supervision pursuant to
the periodic work programs and related budgets x x x, as well as work programs and minimum expenditures
commitments. (underscoring supplied)
Unarguably, given the provisions of Section 35, the State has every opportunity to pass upon the proposed
expenditures under an FTAA andapprove or reject them. It has access to all the information it may need in order to
determine in advance the amounts of pre-operating and developmental expenses that will have to be recovered by the
contractor and the amount of time needed for such recovery.
In summary, we cannot agree that the third or last paragraph of Section 81 of RA 7942 is in any manner
unconstitutional.
No Deprivation of
Beneficial Rights
It is also claimed that aside from the second and the third paragraphs of Section 81 (discussed above), Sections 80,
84 and 112 of RA 7942 also operate to deprive the State of beneficial rights of ownership over mineral resources; and
give them away for free to private business enterprises (including foreign owned corporations). Likewise, the said
provisions have been construed as constituting, together with Section 81, an ingenious attempt to resurrect the old and
discredited system of license, concession or lease.
Specifically, Section 80 is condemned for limiting the States share in a mineral production-sharing agreement
(MPSA) to just the excise tax on the mineral product. Under Section 151(A) of the Tax Code, such tax is only 2 percent
of the market value of the gross output of the minerals. The colatilla in Section 84, the portion considered offensive to
the Constitution, reiterates the same limitation made in Section 80.
[73]

It should be pointed out that Section 80 and the colatilla in Section 84 pertain only to MPSAs and have no application to
FTAAs. These particular statutory provisions do not come within the issues that were defined and delineated by this
Court during the Oral Argument -- particularly the third issue, which pertained exclusively to FTAAs. Neither did the
parties argue upon them in their pleadings. Hence, this Court cannot make any pronouncement in this case regarding
the constitutionality of Sections 80 and 84 without violating the fundamental rules of due process. Indeed, the two
provisos will have to await another case specifically placing them in issue.
On the other hand, Section 112
[74]
is disparaged for allegedly reverting FTAAs and all mineral agreements to the
old and discredited license, concession or lease system. This Section states in relevant part that the provisions of
Chapter XIV [which includes Sections 80 to 82]on government share in mineral production-sharing agreement x x x shall
immediately govern and apply to a mining lessee or contractor.(underscoring supplied) This provision is construed as
signifying that the 2 percent excise tax which, pursuant to Section 80, comprises the government share in MPSAs shall
now also constitute the government share in FTAAs -- as well as in co-production agreements and joint venture
agreements -- to the exclusion of revenues of any other nature or from any other source.
Apart from the fact that Section 112 likewise does not come within the issues delineated by this Court during the
Oral Argument, and was never touched upon by the parties in their pleadings, it must also be noted that the criticism
hurled against this Section is rooted in unwarranted conclusions made without considering other relevant provisions in
the statute. Whether Section 112 may properly apply to co-production or joint venture agreements, the fact of the
matter is that it cannot be made to apply to FTAAs.
First, Section 112 does not specifically mention or refer to FTAAs; the only reason it is being applied to them at all
is the fact that it happens to use the word contractor. Hence, it is a bit of a stretch to insist that it covers FTAAs as
well. Second, mineral agreements, of which there are three types -- MPSAs, co-production agreements, and joint venture
agreements -- are covered by Chapter V of RA 7942. On the other hand, FTAAs are covered by and in fact are the
subject of Chapter VI, an entirely different chapter altogether. The law obviously intends to treat them as a breed apart
from mineral agreements, since Section 35 (found in Chapter VI) creates a long list of specific terms, conditions,
commitments, representations and warranties -- which have not been made applicable to mineral agreements -- to be
incorporated into FTAAs.
Third, under Section 39, the FTAA contractor is given the option to downgrade -- to convert the FTAA into a
mineral agreement at any time during the term if the economic viability of the contract area is inadequate to sustain
large-scale mining operations. Thus, there is no reason to think that the law through Section 112 intends to exact from
FTAA contractors merely the same government share (a 2 percent excise tax) that it apparently demands from
contractors under the three forms of mineral agreements. In brief, Section 112 does not apply to FTAAs.
Notwithstanding the foregoing explanation, Justices Carpio and Morales maintain that the Court must rule now on
the constitutionality of Sections 80, 84 and 112, allegedly because the WMCP FTAA contains a provision which grants
the contractor unbridled and automatic authority to convert the FTAA into an MPSA; and should such conversion
happen, the State would be prejudiced since its share would be limited to the 2 percent excise tax. Justice Carpio adds
that there are five MPSAs already signed just awaiting the judgment of this Court on respondents and intervenors
Motions for Reconsideration. We hold however that, at this point, this argument is based on pure speculation. The
Court cannot rule on mere surmises and hypothetical assumptions, without firm factual anchor. We repeat: basic due
process requires that we hear the parties who have a real legal interest in the MPSAs (i.e. the parties who executed
them) before these MPSAs can be reviewed, or worse, struck down by the Court. Anything less than that requirement
would be arbitrary and capricious.
In any event, the conversion of the present FTAA into an MPSA is problematic. First, the contractor must comply
with the law, particularly Section 39 of RA 7942; inter alia, it must convincingly show that the economic viability of the
contract is found to be inadequate to justify large-scale mining operations; second, it must contend with the Presidents
exercise of the power of State control over the EDU of natural resources; and third, it will have to risk a possible
declaration of the unconstitutionality (in a proper case) of Sections 80, 84 and 112.
The first requirement is not as simple as it looks. Section 39 contemplates a situation in which an FTAA has
already been executed and entered into, and is presumably being implemented, when the contractor discovers that the
mineral ore reserves in the contract area are not sufficient to justify large-scale mining, and thus the contractor requests
the conversion of the FTAA into an MPSA. The contractor in effect needs to explain why, despite its exploration
activities, including the conduct of various geologic and other scientific tests and procedures in the contract area, it was
unable to determine correctly the mineral ore reserves and the economic viability of the area. The contractor must
explain why, after conducting such exploration activities, it decided to file a declaration of mining feasibility, and to
apply for an FTAA, thereby leading the State to believe that the area could sustain large-scale mining. The contractor
must justify fully why its earlier findings, based on scientific procedures, tests and data, turned out to be wrong, or
were way off. It must likewise prove that its new findings, also based on scientific tests and procedures, are
correct. Right away, this puts the contractors technical capabilities and expertise into serious doubt. We wonder if
anyone would relish being in this situation. The State could even question and challenge the contractors qualification
and competence to continue the activity under an MPSA.
All in all, while there may be cogent grounds to assail the aforecited Sections, this Court -- on considerations of
due process -- cannot rule upon them here. Anyway, if later on these Sections are declared unconstitutional, such
declaration will not affect the other portions since they are clearly separable from the rest.
Our Mineral Resources Not
Given Away for Free by RA 7942
Nevertheless, if only to disabuse our minds, we should address the contention that our mineral resources are
effectively given away for free by the law (RA 7942) in general and by Sections 80, 81, 84 and 112 in particular.
Foreign contractors do not just waltz into town one day and leave the next, taking away mineral resources without
paying anything. In order to get at the minerals, they have to invest huge sums of money (tens or hundreds of millions
of dollars) in exploration works first. If the exploration proves unsuccessful, all the cash spent thereon will not be
returned to the foreign investors; rather, those funds will have been infused into the local economy, to remain there
permanently. The benefits therefrom cannot be simply ignored. And assuming that the foreign contractors are
successful in finding ore bodies that are viable for commercial exploitation, they do not just pluck out the minerals and
cart them off. They have first to build camp sites and roadways; dig mine shafts and connecting tunnels; prepare tailing
ponds, storage areas and vehicle depots; install their machinery and equipment, generator sets, pumps, water tanks and
sewer systems, and so on.
In short, they need to expend a great deal more of their funds for facilities, equipment and supplies, fuel, salaries of
local labor and technical staff, and other operating expenses. In the meantime, they also have to pay taxes,
[75]
duties,
fees, and royalties. All told, the exploration, pre-feasibility, feasibility, development and construction phases together
add up to as many as eleven years.
[76]
The contractors have to continually shell out funds for the duration of over a
decade, before they can commence commercial production from which they would eventually derive revenues. All that
money translates into a lot of pump-priming for the local economy.
Granted that the contractors are allowed subsequently to recover their pre-operating expenses, still, that
eventuality will happen only after they shall have first put out the cash and fueled the economy. Moreover, in the
process of recouping their investments and costs, the foreign contractors do not actually pull out the money from the
economy. Rather, they recover or recoup their investments out of actual commercial production by not paying a portion
of the basic government share corresponding to national taxes, along with the additional government share, for a
period of not more than five years
[77]
counted from the commencement of commercial production.
It must be noted that there can be no recovery without commencing actual commercial production. In the meantime that
the contractors are recouping costs, they need to continue operating; in order to do so, they have to disburse money to
meet their various needs. In short, money is continually infused into the economy.
The foregoing discussion should serve to rid us of the mistaken belief that, since the foreign contractors are
allowed to recover their investments and costs, the end result is that they practically get the minerals for free, which
leaves the Filipino people none the better for it.
All Businesses Entitled
to Cost Recovery
Let it be put on record that not only foreign contractors, but all businessmen and all business entities in general, have to
recoup their investments and costs. That is one of the first things a student learns in business school. Regardless of its
nationality, and whether or not a business entity has a five-year cost recovery period, it will -- must -- have to recoup its
investments, one way or another. This is just common business sense. Recovery of investments is absolutely
indispensable for business survival; and business survival ensures soundness of the economy, which is critical and
contributory to the general welfare of the people. Even government corporations must recoup their investments in order to
survive and continue in operation. And, as the preceding discussion has shown, there is no business that gets ahead or
earns profits without any cost to it.
It must also be stressed that, though the State owns vast mineral wealth, such wealth is not readily accessible or
transformable into usable and negotiable currency without the intervention of the credible mining companies. Those
untapped mineral resources, hidden beneath tons of earth and rock, may as well not be there for all the good they do us
right now. They have first to be extracted and converted into marketable form, and the country needs the foreign
contractors funds, technology and know-how for that.
After about eleven years of pre-operation and another five years for cost recovery, the foreign contractors will have
just broken even. Is it likely that they would at that point stop their operations and leave? Certainly not. They have yet
to make profits. Thus, for the remainder of the contract term, they must strive to maintain profitability. During this
period, they pay the whole of the basic government share and the additional government share which, taken together with
indirect taxes and other contributions, amount to approximately 60 percent or more of the entire financial benefits generated by the
mining venture.
In sum, we can hardly talk about foreign contractors taking our mineral resources for free. It takes a lot of hard
cash to even begin to do what they do. And what they do in this country ultimately benefits the local economy, grows
businesses, generates employment, and creates infrastructure, as discussed above. Hence, we definitely disagree with the
sweeping claim that no FTAA under Section 81 will ever make any real contribution to the growth of the economy or to
the general welfare of the country. This is not a plea for foreign contractors. Rather, this is a question of focusing the
judicial spotlight squarely on all the pertinent facts as they bear upon the issue at hand, in order to avoid leaping precipitately to ill-
conceived conclusions not solidly grounded upon fact.
Repatriation of
After-Tax Income
Another objection points to the alleged failure of the Mining Law to ensure real contributions to the economic
growth and general welfare of the country, as mandated by Section 2 of Article XII of the Constitution. Pursuant to
Section 81 of the law, the entire after-tax income arising from the exploitation of mineral resources owned by the State
supposedly belongs to the foreign contractors, which will naturally repatriate the said after-tax income to their home
countries, thereby resulting in no real contribution to the economic growth of this country. Clearly, this contention is
premised on erroneous assumptions.
First, as already discussed in detail hereinabove, the concerned agencies have correctly interpreted the second
paragraph of Section 81 of RA 7942 to mean that the government is entitled to an additional share, to be computed
based on any one of the following factors: net mining revenues, the present value of the cash flows, or excess profits
reckoned against a benchmark rate of return on investments. So it is not correct to say that all of the after-tax income
will accrue to the foreign FTAA contractor, as the government effectively receives a significant portion thereof.
Second, the foreign contractors can hardly repatriate the entire after-tax income to their home countries. Even a bit of
knowledge of corporate finance will show that it will be impossible to maintain a business as a going concern if the
entire net profit earned in any particular year will be taken out and repatriated. The net income figure reflected in
the bottom line is a mere accounting figure not necessarily corresponding to cash in the bank, or other quick assets. In
order to produce and set aside cash in an amount equivalent to the bottom line figure, one may need to sell off assets or
immediately collect receivables or liquidate short-term investments; but doing so may very likely disrupt normal
business operations.
In terms of cash flows, the funds corresponding to the net income as of a particular point in time are actually in
use in the normal course of business operations. Pulling out such net income disrupts the cash flows and cash position of the
enterprise and, depending on the amount being taken out, could seriously cripple or endanger the normal operations
and financial health of the business enterprise. In short, no sane business person, concerned with maintaining the
mining enterprise as a going concern and keeping a foothold in its market, can afford to repatriate the entire after-
tax income to the home country.
The States Receipt of Sixty
Percent of an FTAA Contractors
After-Tax Income Not Mandatory
We now come to the next objection which runs this way: In FTAAs with a foreign contractor, the State must receive
at least 60 percent of the after-tax income from the exploitation of its mineral resources. This share is the equivalent of
the constitutional requirement that at least 60 percent of the capital, and hence 60 percent of the income, of mining
companies should remain in Filipino hands.
First, we fail to see how we can properly conclude that the Constitution mandates the State to extract at least 60
percent of the after-tax income from a mining company run by a foreign contractor. The argument is that the Charter
requires the States partner in a co-production agreement, joint venture agreement or MPSA to be a Filipino corporation
(at least 60 percent owned by Filipino citizens).
We question the logic of this reasoning, premised on a supposedly parallel or analogous situation. We are, after
all, dealing with an essentially different equation, one that involves different elements. The Charter did not intend to fix
an iron-clad rule on the 60 percent share, applicable to all situations at all times and in all circumstances. If ever
such was the intention of the framers, they would have spelt it out in black and white. Verba legis will serve to dispel
unwarranted and untenable conclusions.
Second, if we would bother to do the math, we might better appreciate the impact (and reasonableness) of what we
are demanding of the foreign contractor. Let us use a simplified illustration. Let us base it on gross revenues of,
say, P500. After deducting operating expenses, but prior to income tax, suppose a mining firm makes a taxable
income of P100. A corporate income tax of 32 percent results in P32 of taxable income going to the government, leaving
the mining firm with P68. Government then takes 60 percent thereof, equivalent to P40.80, leaving onlyP27.20 for the
mining firm.
At this point the government has pocketed P32.00 plus P40.80, or a total of P72.80 for every P100 of taxable income,
leaving the mining firm with only P27.20. But that is not all. The government has also taken 2 percent excise tax off
the top, equivalent to another P10. Under the minimum 60 percent proposal, the government nets around P82.80 (not
counting other taxes, duties, fees and charges) from a taxable income ofP100 (assuming gross revenues of P500, for
purposes of illustration). On the other hand, the foreign contractor, which provided all the capital, equipment and labor, and
took all the entrepreneurial risks -- receives P27.20. One cannot but wonder whether such a distribution is even remotely
equitable and reasonable, considering the nature of the mining business. The amount of P82.80 out of P100.00 is really a
lot it does not matter that we call part of it excise tax or income tax, and another portion thereof income from exploitation
of mineral resources. Some might think it wonderful to be able to take the lions share of the benefits. But we have to ask
ourselves if we are really serious in attracting the investments that are the indispensable and key element in generating
the monetary benefits of which we wish to take the lions share. Fairness is a credo not only in law, but also in
business.
Third, the 60 percent rule in the petroleum industry cannot be insisted upon at all times in the mining
business. The reason happens to be the fact that in petroleum operations, the bulk of expenditures is in exploration, but
once the contractor has found and tapped into the deposit, subsequent investments and expenditures are relatively
minimal. The crude (or gas) keeps gushing out, and the work entailed is just a matter of piping, transporting and
storing. Not so in mineral mining. The ore body does not pop out on its own. Even after it has been located, the
contractor must continually invest in machineries and expend funds to dig and build tunnels in order to access and
extract the minerals from underneath hundreds of tons of earth and rock.
As already stated, the numerous intrinsic differences involved in their respective operations and requirements,
cost structures and investment needs render it highly inappropriate to use petroleum operations FTAAs as benchmarks
for mining FTAAs. Verily, we cannot just ignore the realities of the distinctly different situations and stubbornly insist on
the minimum 60 percent.
The Mining and the Oil Industries
Different From Each Other
To stress, there is no independent showing that the taking of at least a 60 percent share in the after-tax income of a
mining company operated by a foreign contractor is fair and reasonable under most if not all circumstances. The fact that
some petroleum companies like Shell acceded to such percentage of sharing does not ipso facto mean that it is per se
reasonable and applicable to non-petroleum situations (that is, mining companies) as well. We can take judicial notice of the
fact that there are, after all, numerous intrinsic differences involved in their respective operations and equipment or technological
requirements, costs structures and capital investment needs, and product pricing and markets.
There is no showing, for instance, that mining companies can readily cope with a 60 percent government share in
the same way petroleum companies apparently can. What we have is a suggestion to enforce the 60 percent quota on
the basis of a disjointed analogy. The only factor common to the two disparate situations is the extraction of natural
resources.
Indeed, we should take note of the fact that Congress made a distinction between mining firms and petroleum
companies. In Republic Act No. 7729 -- An Act Reducing the Excise Tax Rates on Metallic and Non-Metallic Minerals and
Quarry Resources, Amending for the Purpose Section 151(a) of the National Internal Revenue Code, as amended -- the
lawmakers fixed the excise tax rate on metallic and non-metallic minerals at two percent of the actual market value of the
annual gross output at the time of removal. However, in the case of petroleum, the lawmakers set the excise tax rate for
the first taxable sale at fifteen percent of the fair international market price thereof.
There must have been a very sound reason that impelled Congress to impose two very dissimilar excise tax rate. We
cannot assume, without proof, that our honorable legislators acted arbitrarily, capriciously and whimsically in this
instance. We cannot just ignore the reality of two distinctly different situations and stubbornly insist on going
minimum 60 percent.
To repeat, the mere fact that gas and oil exploration contracts grant the State 60 percent of the net revenues does
not necessarily imply that mining contracts should likewise yield a minimum of 60 percent for the State. Jumping to that
erroneous conclusion is like comparing apples with oranges. The exploration, development and utilization of gas and oil are simply
different from those of mineral resources.
To stress again, the main risk in gas and oil is in the exploration. But once oil in commercial quantities is struck
and the wells are put in place, the risk is relatively over and black gold simply flows out continuously
with comparatively less need for fresh investments and technology.
On the other hand, even if minerals are found in viable quantities, there is still need for continuous fresh capital and
expertise to dig the mineral ores from the mines. Just because deposits of mineral ores are found in one area is no
guarantee that an equal amount can be found in the adjacent areas. There are simply continuing risks and need for
more capital, expertise and industry all the time.
Note, however, that the indirect benefits -- apart from the cash revenues -- are much more in the mineral
industry. As mines are explored and extracted, vast employment is created, roads and other infrastructure are built,
and other multiplier effects arise. On the other hand, once oil wells start producing, there is less need for
employment. Roads and other public works need not be constructed continuously. In fine, there is no basis for saying
that government revenues from the oil industry and from the mineral industries are to be identical all the time.
Fourth, to our mind, the proffered minimum 60 percent suggestion tends to limit the flexibility and tie the hands of
government, ultimately hampering the countrys competitiveness in the international market, to the detriment of the
Filipino people. This you-have-to-give-us-60-percent-of-after-tax-income-or-we-dont-do- business-with-you approach
is quite perilous. True, this situation may not seem too unpalatable to the foreign contractor during good years, when
international market prices are up and the mining firm manages to keep its costs in check. However, under
unfavorable economic and business conditions, with costs spiraling skywards and minerals prices plummeting, a
mining firm may consider itself lucky to make just minimal profits.
The inflexible, carved-in-granite demand for a 60 percent government share may spell the end of the mining
venture, scare away potential investors, and thereby further worsen the already dismal economic scenario. Moreover,
such an unbending or unyielding policy prevents the government from responding appropriately to changing
economic conditions and shifting market forces. This inflexibility further renders our country less attractive as an investment
option compared with other countries.
And fifth, for this Court to decree imperiously that the governments share should be not less than 60 percent of the
after-tax income of FTAA contractors at all times is nothing short of dictating upon the government. The result,
ironically, is that the State ends up losing control. To avoid compromising the States full control and supervision over the
exploitation of mineral resources, this Court must back off from insisting upon a minimum 60 percent rule. It is
sufficient that the State has the power and means, should it so decide, to get a 60 percent share (or more) in the
contractors net mining revenues or after-tax income, or whatever other basis the government may decide to use in
reckoning its share. It is not necessary for it to do so in every case, regardless of circumstances.
In fact, the government must be trusted, must be accorded the liberty and the utmost flexibility to deal, negotiate
and transact with contractors and third parties as it sees fit; and upon terms that it ascertains to be most favorable or
most acceptable under the circumstances, even if it means agreeing to less than 60 percent. Nothing must prevent the
State from agreeing to a share less than that, should it be deemed fit; otherwise the State will be deprived of full control
over mineral exploitation that the Charter has vested in it.
To stress again, there is simply no constitutional or legal provision fixing the minimum share of the government in an
FTAA at 60 percent of the net profit. For this Court to decree such minimum is to wade into judicial legislation, and
thereby inordinately impinge on thecontrol power of the State. Let it be clear: the Court is not against the grant of more
benefits to the State; in fact, the more the better. If during the FTAA negotiations, the President can secure 60
percent,
[78]
or even 90 percent, then all the better for our people. But, if under the peculiar circumstances of a specific
contract, the President could secure only 50 percent or 55 percent, so be it. Needless to say, the President will have to
report (and be responsible for) the specific FTAA to Congress, and eventually to the people.
Finally, if it should later be found that the share agreed to is grossly disadvantageous to the government, the officials
responsible for entering into such a contract on its behalf will have to answer to the courts for their malfeasance. And
the contract provision voided. But this Court would abuse its own authority should it force the governments hand to
adopt the 60 percent demand of some of our esteemed colleagues.
Capital and Expertise Provided,
Yet All Risks Assumed by Contractor
Here, we will repeat what has not been emphasized and appreciated enough: the fact that the contractor in an FTAA
provides all the needed capital, technical and managerial expertise, and technology required to undertake the project.
In regard to the WMCP FTAA, the then foreign-owned WMCP as contractor committed, at the very outset, to
make capital investments of up to US$50 million in that single mining project. WMCP claims to have already poured in
well over P800 million into the country as of February 1998, with more in the pipeline. These resources, valued in the
tens or hundreds of millions of dollars, are invested in a mining project that provides no assurance whatsoever that any
part of the investment will be ultimately recouped.
At the same time, the contractor must comply with legally imposed environmental standards and the social
obligations, for which it also commits to make significant expenditures of funds. Throughout, the contractor assumes
all the risks
[79]
of the business, as mentioned earlier. These risks are indeed very high, considering that the rate of
success in exploration is extremely low. The probability of finding any mineral or petroleum in commercially viable
quantities is estimated to be about 1:1,000 only. On that slim chance rides the contractors hope of recouping
investments and generating profits. And when the contractor has recouped its initial investments in the project, the
government share increases to sixty percent of net benefits -- without the State ever being in peril of incurring costs,
expenses and losses.
And even in the worst possible scenario -- an absence of commercial quantities of minerals to justify development -
- the contractor would already have spent several million pesos for exploration works, before arriving at the point in
which it can make that determination and decide to cut its losses. In fact, during the first year alone of the exploration
period, the contractor was already committed to spend not less than P24 million. The FTAA therefore clearly ensures
benefits for the local economy, courtesy of the contractor.
All in all, this setup cannot be regarded as disadvantageous to the State or the Filipino people; it certainly
cannot be said to convey beneficial ownership of our mineral resources to foreign contractors.
Deductions Allowed by the
WMCP FTAA Reasonable
Petitioners question whether the States weak control might render the sharing arrangements ineffective. They cite
the so-called suspicious deductions allowed by the WMCP FTAA in arriving at the net mining revenue, which is the
basis for computing the government share. The WMCP FTAA, for instance, allows expenditures for development
within and outside the Contract Area relating to the Mining Operations,
[80]
consulting fees incurred both inside
and outside the Philippines for work related directly to the Mining Operations,
[81]
and the establishment and
administration of field offices including administrative overheads incurred within and outside the Philippines which are
properly allocatable to the Mining Operations and reasonably related to the performance of the Contractors obligations
and exercise of its rights under this Agreement.
[82]

It is quite well known, however, that mining companies do perform some marketing activities abroad in respect of
selling their mineral products and by-products. Hence, it would not be improper to allow the deduction
of reasonable consulting fees incurred abroad, as well as administrative expenses and overheads related to marketing
offices also located abroad -- provided that these deductions are directly related or properly allocatable to the mining
operations and reasonably related to the performance of the contractors obligations and exercise of its rights. In any
event, more facts are needed. Until we see how these provisions actually operate, mere suspicions will not suffice to
propel this Court into taking action.
Section 7.9 of the WMCP FTAA
Invalid and Disadvantageous
Having defended the WMCP FTAA, we shall now turn to two defective provisos. Let us start with Section 7.9 of
the WMCP FTAA. While Section 7.7 gives the government a 60 percent share in the net mining revenues of WMCP
from the commencement of commercial production, Section 7.9 deprives the government of part or all of the said 60
percent. Under the latter provision, should WMCPs foreign shareholders -- who originally owned 100 percent of the
equity -- sell 60 percent or more of its outstanding capital stock to a Filipino citizen or corporation, the State loses its
right to receive its 60 percent share in net mining revenues under Section 7.7.
Section 7.9 provides:
The percentage of Net Mining Revenues payable to the Government pursuant to Clause 7.7 shall be reduced by 1percent of Net
Mining Revenues for every 1percent ownership interest in the Contractor (i.e., WMCP) held by a Qualified Entity.
[83]

Evidently, what Section 7.7 grants to the State is taken away in the next breath by Section 7.9 without any offsetting
compensation to the State. Thus, in reality, the State has no vested right to receive any income from the FTAA for the
exploitation of its mineral resources. Worse, it would seem that what is given to the State in Section 7.7 is by mere
tolerance of WMCPs foreign stockholders, who can at any time cut off the governments entire 60 percent share. They can
do so by simply selling 60 percent of WMCPs outstanding capital stock to a Philippine citizen or
corporation. Moreover, the proceeds of such sale will of course accrue to the foreign stockholders of WMCP, not to the
State.
The sale of 60 percent of WMCPs outstanding equity to a corporation that is 60 percent Filipino-owned and 40
percent foreign-owned will still trigger the operation of Section 7.9. Effectively, the State will lose its right to receive all
60 percent of the net mining revenues of WMCP; andforeign stockholders will own beneficially up to 64 percent of WMCP,
consisting of the remaining 40 percent foreign equity therein, plus the 24 percent pro-rata share in the buyer-
corporation.
[84]

In fact, the January 23, 2001 sale by WMCPs foreign stockholder of the entire outstanding equity in WMCP to
Sagittarius Mines, Inc. -- a domestic corporation at least 60 percent Filipino owned -- may be deemed to have
automatically triggered the operation of Section 7.9, without need of further action by any party, and removed the
States right to receive the 60 percent share in net mining revenues.
At bottom, Section 7.9 has the effect of depriving the State of its 60 percent share in the net mining revenues of
WMCP without any offset or compensation whatsoever. It is possible that the inclusion of the offending provision was
initially prompted by the desire to provide some form of incentive for the principal foreign stockholder in WMCP to
eventually reduce its equity position and ultimately divest in favor of Filipino citizens and corporations. However, as
finally structured, Section 7.9 has the deleterious effect of depriving government of the entire 60 percent share in
WMCPs net mining revenues, without any form of compensation whatsoever. Such an outcome is completely
unacceptable.
The whole point of developing the nations natural resources is to benefit the Filipino people, future generations
included. And the State as sovereign and custodian of the nations natural wealth is mandated to protect, conserve,
preserve and develop that part of the national patrimony for their benefit. Hence, the Charter lays great emphasis on
real contributions to the economic growth and general welfare of the country
[85]
as essential guiding principles to be
kept in mind when negotiating the terms and conditions of FTAAs.
Earlier, we held (1) that the State must be accorded the liberty and the utmost flexibility to deal, negotiate and
transact with contractors and third parties as it sees fit, and upon terms that it ascertains to be most favorable or most
acceptable under the circumstances, even if that should mean agreeing to less than 60 percent; (2) that it is not necessary
for the State to extract a 60 percent share in every case and regardless of circumstances; and (3) that should the State be
prevented from agreeing to a share less than 60 percent as it deems fit, it will be deprived of the full control over
mineral exploitation that the Charter has vested in it.
That full control is obviously not an end in itself; it exists and subsists precisely because of the need to serve and
protect the national interest. In this instance, national interest finds particular application in the protection of the
national patrimony and the development and exploitation of the countrys mineral resources for the benefit of the
Filipino people and the enhancement of economic growth and the general welfare of the country. Undoubtedly, such
full control can be misused and abused, as we now witness.
Section 7.9 of the WMCP FTAA effectively gives away the States share of net mining revenues (provided for in Section 7.7)
without anything in exchange. Moreover, this outcome constitutes unjust enrichment on the part of the local and foreign
stockholders of WMCP. By their mere divestment of up to 60 percent equity in WMCP in favor of Filipino citizens
and/or corporations, the local and foreign stockholders get a windfall. Their share in the net mining revenues of
WMCP is automatically increased, without their having to pay the government anything for it. In short, the provision
in question is without a doubt grossly disadvantageous to the government, detrimental to the interests of the Filipino people, and
violative of public policy.
Moreover, it has been reiterated in numerous decisions
[86]
that the parties to a contract may establish any
agreements, terms and conditions that they deem convenient; but these should not be contrary to law, morals, good
customs, public order or public policy.
[87]
Being precisely violative of anti-graft provisions and contrary to public policy,
Section 7.9 must therefore be stricken off as invalid.
Whether the government officials concerned acceded to that provision by sheer mistake or with full awareness of
the ill consequences, is of no moment. It is hornbook doctrine that the principle of estoppel does not operate against the
government for the act of its agents,
[88]
and that it is never estopped by any mistake or error on their part.
[89]
It is
therefore possible and proper to rectify the situation at this time. Moreover, we may also say that the FTAA in question
does not involve mere contractual rights; being impressed as it is with public interest, the contractual provisions and
stipulations must yield to the common good and the national interest.
Since the offending provision is very much separable
[90]
from Section 7.7 and the rest of the FTAA, the deletion of
Section 7.9 can be done without affecting or requiring the invalidation of the WMCP FTAA itself. Such a deletion will
preserve for the government its due share of the benefits. This way, the mandates of the Constitution are complied with
and the interests of the government fully protected, while the business operations of the contractor are not needlessly
disrupted.
Section 7.8(e) of the WMCP FTAA
Also Invalid and Disadvantageous
Section 7.8(e) of the WMCP FTAA is likewise invalid. It provides thus:
7.8 The Government Share shall be deemed to include all of the following sums:
(a) all Government taxes, fees, levies, costs, imposts, duties and royalties including excise tax,
corporate income tax, customs duty, sales tax, value added tax, occupation and regulatory
fees, Government controlled price stabilization schemes, any other form of Government backed
schemes, any tax on dividend payments by the Contractor or its Affiliates in respect of
revenues from the Mining Operations and any tax on interest on domestic and foreign loans
or other financial arrangements or accommodations, including loans extended to the
Contractor by its stockholders;
(b) any payments to local and regional government, including taxes, fees, levies, costs, imposts,
duties, royalties, occupation and regulatory fees and infrastructure contributions;
(c) any payments to landowners, surface rights holders, occupiers, indigenous people or
Claimowners;
(d) costs and expenses of fulfilling the Contractors obligations to contribute to national
development in accordance with Clause 10.1(i) (1) and 10.1(i) (2);
(e) an amount equivalent to whatever benefits that may be extended in the future by the
Government to the Contractor or to financial or technical assistance agreement contractors in
general;
(f) all of the foregoing items which have not previously been offset against the Government Share
in an earlier Fiscal Year, adjusted for inflation. (underscoring supplied)
Section 7.8(e) is out of place in the FTAA. It makes no sense why, for instance, money spent by the government for
the benefit of the contractor in building roads leading to the mine site should still be deductible from the States share in
net mining revenues. Allowing this deduction results in benefiting the contractor twice over. It constitutes unjust
enrichment on the part of the contractor at the expense of the government, since the latter is effectively being made to
pay twice for the same item.
[91]
For being grossly disadvantageous and prejudicial to the government and contrary to
public policy, Section 7.8(e) is undoubtedly invalid and must be declared to be without effect. Fortunately, this
provision can also easily be stricken off without affecting the rest of the FTAA.
Nothing Left Over
After Deductions?
In connection with Section 7.8, an objection has been raised: Specified in Section 7.8 are numerous items of
deduction from the States 60 percent share. After taking these into account, will the State ever receive anything for its
ownership of the mineral resources?
We are confident that under normal circumstances, the answer will be yes. If we examine the various items of
deduction listed in Section 7.8 of the WMCP FTAA, we will find that they correspond closely to the components or
elements of the basic government share established in DAO 99-56, as discussed in the earlier part of this Opinion.
Likewise, the balance of the governments 60 percent share -- after netting out the items of deduction listed in
Section 7.8 --corresponds closely to the additional government share provided for in DAO 99-56 which, we once again
stress, has nothing at all to do with indirect taxes. The Ramos-DeVera paper
[92]
concisely presents the fiscal contribution
of an FTAA under DAO 99-56 in this equation:
Receipts from an FTAA = basic govt share + addl govt share
Transposed into a similar equation, the fiscal payments system from the WMCP FTAA assumes the following
formulation:
Governments 60 percent share in net mining revenues of WMCP = items listed in Sec. 7.8 of the FTAA + balance of
Govt share, payable 4 months from the end of the fiscal year
It should become apparent that the fiscal arrangement under the WMCP FTAA is very similar to that under DAO
99-56, with the balance of government share payable 4 months from end of fiscal year being the equivalent of
the additional government share computed in accordance with the net-mining-revenue-based option under DAO 99-
56, as discussed above. As we have emphasized earlier, we find each of the three options for computing the additional
government share -- as presented in DAO 99-56 -- to be sound and reasonable.
We therefore conclude that there is nothing inherently wrong in the fiscal regime of the WMCP FTAA, and
certainly nothing to warrant the invalidation of the FTAA in its entirety.
Section 3.3 of the WMCP
FTAA Constitutional
Section 3.3 of the WMCP FTAA is assailed for violating supposed constitutional restrictions on the term of
FTAAs. The provision in question reads:
3.3 This Agreement shall be renewed by the Government for a further period of twenty-five (25) years under the same
terms and conditions provided that the Contractor lodges a request for renewal with the Government not less than
sixty (60) days prior to the expiry of the initial term of this Agreement and provided that the Contractor is not in
breach of any of the requirements of this Agreement.
Allegedly, the above provision runs afoul of Section 2 of Article XII of the 1987 Constitution, which states:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture or production-sharing agreements with Filipino citizens or corporations or associations at
least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from
its execution.
[93]

We hold that the term limitation of twenty-five years does not apply to FTAAs. The reason is that the above
provision is found within paragraph 1 of Section 2 of Article XII, which refers to mineral agreements -- co-production
agreements, joint venture agreements and mineral production-sharing agreements -- which the government may enter
into with Filipino citizens and corporations, at least 60 percent owned by Filipino citizens. The word such clearly
refers to these three mineral agreements -- CPAs, JVAs and MPSAs -- not to FTAAs.
Specifically, FTAAs are covered by paragraphs 4 and 5 of Section 2 of Article XII of the Constitution. It will be
noted that there are no term limitations provided for in the said paragraphs dealing with FTAAs. This shows that FTAAs
are sui generis, in a class of their own. This omission was obviously a deliberate move on the part of the framers. They
probably realized that FTAAs would be different in many ways from MPSAs, JVAs and CPAs. The reason the framers
did not fix term limitations applicable to FTAAs is that they preferred to leave the matter to the discretion of the
legislature and/or the agencies involved in implementing the laws pertaining to FTAAs, in order to give the latter
enough flexibility and elbow room to meet changing circumstances.
Note also that, as previously stated, the exploratory phrases of an FTAA lasts up to eleven years. Thereafter, a few
more years would be gobbled up in start-up operations. It may take fifteen years before an FTAA contractor can start
earning profits. And thus, the period of 25 years may really be short for an FTAA. Consider too that in this kind of
agreement, the contractor assumes all entrepreneurial risks. If no commercial quantities of minerals are found, the
contractor bears all financial losses. To compensate for this long gestation period and extra business risks, it would not
be totally unreasonable to allow it to continue EDU activities for another twenty five years.
In any event, the complaint is that, in essence, Section 3.3 gives the contractor the power to compel the government
to renew the WMCP FTAA for another 25 years and deprives the State of any say on whether to renew the contract.
While we agree that Section 3.3 could have been worded so as to prevent it from favoring the contractor, this
provision does not violate any constitutional limits, since the said term limitation does not apply at all to
FTAAs. Neither can the provision be deemed in any manner to be illegal, as no law is being violated thereby. It is
certainly not illegal for the government to waive its option to refuse the renewal of a commercial contract.
Verily, the government did not have to agree to Section 3.3. It could have said No to the stipulation, but it did
not. It appears that, in the process of negotiations, the other contracting party was able to convince the government to
agree to the renewal terms. Under the circumstances, it does not seem proper for this Court to intervene and step in to
undo what might have perhaps been a possible miscalculation on the part of the State. If government believes that it is
or will be aggrieved by the effects of Section 3.3, the remedy is the renegotiation of the provision in order to provide the
State the option to not renew the FTAA.
Financial Benefits for Foreigners
Not Forbidden by the Constitution
Before leaving this subject matter, we find it necessary for us to rid ourselves of the false belief that the
Constitution somehow forbids foreign-owned corporations from deriving financial benefits from the development of
our natural or mineral resources.
The Constitution has never prohibited foreign corporations from acquiring and enjoying beneficial interest in the
development of Philippine natural resources. The State itself need not directly undertake exploration, development,
and utilization activities. Alternatively, the Constitution authorizes the government to enter into joint venture
agreements (JVAs), co-production agreements (CPAs) and mineral production sharing agreements (MPSAs) with
contractors who are Filipino citizens or corporations that are at least 60 percent Filipino-owned. They may do the actual
dirty work -- the mining operations.
In the case of a 60 percent Filipino-owned corporation, the 40 percent individual and/or corporate non-Filipino
stakeholders obviously participate in the beneficial interest derived from the development and utilization of our natural
resources. They may receive by way of dividends, up to 40 percent of the contractors earnings from the mining
project. Likewise, they may have a say in the decisions of the board of directors, since they are entitled to
representation therein to the extent of their equity participation, which the Constitution permits to be up to 40 percent
of the contractors equity. Hence, the non-Filipino stakeholders may in that manner also participate in the management
of the contractors natural resource development work. All of this is permitted by our Constitution, for any natural
resource, and without limitation even in regard to the magnitude of the mining project or operations (see paragraph 1
of Section 2 of Article XII).
It is clear, then, that there is nothing inherently wrong with or constitutionally objectionable about the idea of foreign
individuals and entities having or enjoying beneficial interest in -- and participating in the management of operations relative to
-- the exploration, development and utilization of our natural resources.
FTAA More Advantageous
Than Other Schemes
Like CPA, JVA and MPSA
A final point on the subject of beneficial interest. We believe the FTAA is a more advantageous proposition for the
government as compared with other agreements permitted by the Constitution. In a CPA that the government enters
into with one or more contractors, the government shall provide inputs to the mining operations other than the mineral
resource itself.
[94]

In a JVA, a JV company is organized by the government and the contractor, with both parties having equity shares
(investments); and the contractor is granted the exclusive right to conduct mining operations and to extract minerals
found in the area.
[95]
On the other hand, in an MPSA, the government grants the contractor the exclusive right to
conduct mining operations within the contract area and shares in the gross output; and the contractor provides the
necessary financing, technology, management and manpower.
The point being made here is that, in two of the three types of agreements under consideration, the government has
to ante up some risk capital for the enterprise. In other words, government funds (public moneys) are withdrawn from
other possible uses, put to work in the venture and placed at risk in case the venture fails. This notwithstanding,
management and control of the operations of the enterprise are -- in all three arrangements -- in the hands of the
contractor, with the government being mainly a silent partner. The three types of agreement mentioned above apply to
any natural resource, without limitation and regardless of the size or magnitude of the project or operations.
In contrast to the foregoing arrangements, and pursuant to paragraph 4 of Section 2 of Article XII, the FTAA is
limited to large-scale projects and only for minerals, petroleum and other mineral oils. Here, the Constitution removes
the 40 percent cap on foreign ownership and allows the foreign corporation to own up to 100 percent of the
equity. Filipino capital may not be sufficient on account of the size of the project, so the foreign entity may have to ante
up all the risk capital.
Correlatively, the foreign stakeholder bears up to 100 percent of the risk of loss if the project fails. In respect of the
particular FTAA granted to it, WMCP (then 100 percent foreign owned) was responsible, as contractor, for providing
the entire equity, including all the inputs for the project. It was to bear 100 percent of the risk of loss if the project failed,
but its maximum potential beneficial interest consisted only of 40 percent of the net beneficial interest, because the
other 60 percent is the share of the government, which will never be exposed to any risk of loss whatsoever.
In consonance with the degree of risk assumed, the FTAA vested in WMCP the day-to-day management of the mining
operations. Still such management is subject to the overall control and supervision of the State in terms of regular
reporting, approvals of work programs and budgets, and so on.
So, one needs to consider in relative terms, the costs of inputs for, degree of risk attendant to, and benefits derived
or to be derived from a CPA, a JVA or an MPSA vis--vis those pertaining to an FTAA. It may not be realistically
asserted that the foreign grantee of an FTAA is being unduly favored or benefited as compared with a foreign
stakeholder in a corporation holding a CPA, a JVA or an MPSA. Seen the other way around, the government is
definitely better off with an FTAA than a CPA, a JVA or an MPSA.
Developmental Policy
on the Mining Industry
During the Oral Argument and in their Final Memorandum, petitioners repeatedly urged the Court to consider
whether mining as an industry and economic activity deserved to be accorded priority, preference and government
support as against, say, agriculture and other activities in which Filipinos and the Philippines may have an economic
advantage. For instance, a recent US study
[96]
reportedly examined the economic performance of all local US counties
that were dependent on mining and 20 percent of whose labor earnings between 1970 and 2000 came from mining
enterprises.
The study -- covering 100 US counties in 25 states dependent on mining -- showed that per capita income grew
about 30 percent less in mining-dependent communities in the 1980s and 25 percent less for the entire period 1980 to
2000; the level of per capita income was also lower. Therefore, given the slower rate of growth, the gap between these
and other local counties increased.
Petitioners invite attention to the OXFAM America Reports warning to developing nations that mining brings with
it serious economic problems, including increased regional inequality, unemployment and poverty. They also cite the
final report
[97]
of the Extractive Industries Review project commissioned by the World Bank (the WB-EIR Report), which
warns of environmental degradation, social disruption, conflict, and uneven sharing of benefits with local communities
that bear the negative social and environmental impact. The Report suggests that countries need to decide on the best
way to exploit their natural resources, in order to maximize the value added from the development of their resources
and ensure that they are on the path to sustainable development once the resources run out.
Whatever priority or preference may be given to mining vis--vis other economic or non-economic activities is a
question of policy that the President and Congress will have to address; it is not for this Court to decide. This Court
declares what the Constitution and the laws say, interprets only when necessary, and refrains from delving into matters of policy.
Suffice it to say that the State control accorded by the Constitution over mining activities assures a proper
balancing of interests. More pointedly, such control will enable the President to demand the best mining practices and
the use of the best available technologies to protect the environment and to rehabilitate mined-out areas. Indeed, under
the Mining Law, the government can ensure the protection of the environment during and after mining. It can likewise
provide for the mechanisms to protect the rights of indigenous communities, and thereby mold a more socially-
responsive, culturally-sensitive and sustainable mining industry.
Early on during the launching of the Presidential Mineral Industry Environmental Awards on February 6, 1997,
then President Fidel V. Ramos captured the essence of balanced and sustainable mining in these words:
Long term, high profit mining translates into higher revenues for government, more decent jobs for the population, more raw
materials to feed the engines of downstream and allied industries, and improved chances of human resource and countryside
development by creating self-reliant communities away from urban centers.
x x x x x x x x x
Against a fragile and finite environment, it is sustainability that holds the key. In sustainable mining, we take a middle ground
where both production and protection goals are balanced, and where parties-in-interest come to terms.
Neither has the present leadership been remiss in addressing the concerns of sustainable mining
operations. Recently, on January 16, 2004 and April 20, 2004, President Gloria Macapagal Arroyo issued Executive
Orders Nos. 270 and 270-A, respectively, to promoteresponsible mineral resources exploration, development and
utilization, in order to enhance economic growth, in a manner that adheres to the principles of sustainable development
and with due regard for justice and equity, sensitivity to the culture of the Filipino people and respect for Philippine
sovereignty.
[98]

REFUTATION OF DISSENTS
The Court will now take up a number of other specific points raised in the dissents of Justices Carpio and Morales.
1. Justice Morales introduced us to Hugh Morgan, former president and chief executive officer of Western Mining
Corporation (WMC) and former president of the Australian Mining Industry Council, who spearheaded the vociferous
opposition to the filing by aboriginal peoples of native title claims against mining companies in Australia in the
aftermath of the landmark Mabo decision by the Australian High Court. According to sources quoted by our esteemed
colleague, Morgan was also a racist and a bigot. In the course of protesting Mabo, Morgan allegedly uttered derogatory
remarks belittling the aboriginal culture and race.
An unwritten caveat of this introduction is that this Court should be careful not to permit the entry of the likes of
Hugh Morgan and his hordes of alleged racist-bigots at WMC. With all due respect, such scare tactics should have no
place in the discussion of this case. We are deliberating on the constitutionality of RA 7942, DAO 96-40 and the FTAA
originally granted to WMCP, which had been transferred to Sagittarius Mining, a Filipino corporation. We are not
discussing the apparition of white Anglo-Saxon racists/bigots massing at our gates.
2. On the proper interpretation of the phrase agreements involving either technical or financial assistance, Justice
Morales points out that at times we conveniently omitted the use of the disjunctive eitheror, which according to her
denotes restriction; hence the phrase must be deemed to connote restriction and limitation.
But, as Justice Carpio himself pointed out during the Oral Argument, the disjunctive phrase either technical or
financial assistance would, strictly speaking, literally mean that a foreign contractor may provide only one or the other,
but not both. And if both technical and financial assistance were required for a project, the State would have to deal
with at least two different foreign contractors -- one for financial and the other for technical assistance. And following
on that, a foreign contractor, though very much qualified to provide both kinds of assistance, would nevertheless be
prohibited from providing one kind as soon as it shall have agreed to provide the other.
But if the Court should follow this restrictive and literal construction, can we really find two (or more) contractors
who are willing to participate in one single project -- one to provide the financial assistance only and the other the
technical assistance exclusively; it would be excellent if these two or more contractors happen to be willing and are
able to cooperate and work closely together on the same project (even if they are otherwise competitors). And it would
be superb if no conflicts would arise between or among them in the entire course of the contract. But what are the
chances things will turn out this way in the real world? To think that the framers deliberately imposed this kind of
restriction is to say that they were either exceedingly optimistic, or incredibly nave. This begs the question -- What
laudable objective or purpose could possibly be served by such strict and restrictive literal interpretation?
3. Citing Oposa v. Factoran Jr., Justice Morales claims that a service contract is not a contract or property right which
merits protection by the due process clause of the Constitution, but merely a license or privilege which may be validly
revoked, rescinded or withdrawn by executive action whenever dictated by public interest or public welfare.
Oposa cites Tan v. Director of Forestry and Ysmael v. Deputy Executive Secretary as authority. The latter cases dealt
specifically withtimber licenses only. Oposa allegedly reiterated that a license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between the authority, federal, state or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation. Thus this Court
held that the granting of license does not create irrevocable rights, neither is it property or property rights.
Should Oposa be deemed applicable to the case at bar, on the argument that natural resources are also involved in
this situation? We do not think so. A grantee of a timber license, permit or license agreement gets to cut the timber
already growing on the surface; it need not dig up tons of earth to get at the logs. In a logging concession, the
investment of the licensee is not as substantial as the investment of a large-scale mining contractor. If a timber license
were revoked, the licensee packs up its gear and moves to a new area applied for, and starts over; what it leaves behind
are mainly the trails leading to the logging site.
In contrast, the mining contractor will have sunk a great deal of money (tens of millions of dollars) into the ground,
so to speak, for exploration activities, for development of the mine site and infrastructure, and for the actual excavation
and extraction of minerals, including the extensive tunneling work to reach the ore body. The cancellation of the
mining contract will utterly deprive the contractor of its investments (i.e., prevent recovery of investments), most of
which cannot be pulled out.
To say that an FTAA is just like a mere timber license or permit and does not involve contract or property rights
which merit protection by the due process clause of the Constitution, and may therefore be revoked or cancelled in the
blink of an eye, is to adopt a well-nigh confiscatory stance; at the very least, it is downright dismissive of the property
rights of businesspersons and corporate entities that have investments in the mining industry, whose investments,
operations and expenditures do contribute to the general welfare of the people, the coffers of government, and the
strength of the economy. Such a pronouncement will surely discourage investments (local and foreign) which are
critically needed to fuel the engine of economic growth and move this country out of the rut of poverty. In
sum, Oposa is not applicable.
4. Justice Morales adverts to the supposedly clear intention of the framers of the Constitution to reserve our
natural resources exclusively for the Filipino people. She then quoted from the records of the ConCom deliberations a
passage in which then Commissioner Davide explained his vote, arguing in the process that aliens ought not be allowed
to participate in the enjoyment of our natural resources. One passage does not suffice to capture the tenor or substance
of the entire extensive deliberations of the commissioners, or to reveal the clear intention of the framers as a group. A
re-reading of the entire deliberations (quoted here earlier) is necessary if we are to understand the true intent of the
framers.
5. Since 1935, the Filipino people, through their Constitution, have decided that the retardation or delay in the
exploration, development or utilization of the nations natural resources is merely secondary to the protection and
preservation of their ownership of the natural resources, so says Justice Morales, citing Aruego. If it is true that the
framers of the 1987 Constitution did not care much about alleviating the retardation or delay in the development and
utilization of our natural resources, why did they bother to write paragraph 4 at all? Were they merely paying lip
service to large-scale exploration, development and utilization? They could have just completely ignored the subject
matter and left it to be dealt with through a future constitutional amendment. But we have to harmonize every part of
the Constitution and to interpret each provision in a manner that would give life and meaning to it and to the rest of the
provisions. It is obvious that a literal interpretation of paragraph 4 will render it utterly inutile and inoperative.
6. According to Justice Morales, the deliberations of the Constitutional Commission do not support our contention
that the framers, by specifying such agreements involving financial or technical assistance, necessarily gave implied
assent to everything that these agreements implicitly entailed, or that could reasonably be deemed necessary to make
them tenable and effective, including management authority in the day-to-day operations. As proof thereof, she
quotes one single passage from the ConCom deliberations, consisting of an exchange among Commissioners Tingson,
Garcia and Monsod.
However, the quoted exchange does not serve to contradict our argument; it even bolsters it. Comm. Christian
Monsod was quoted as saying: xxx I think we have to make a distinction that it is not really realistic to say that we will borrow
on our own terms. Maybe we can say that we inherited unjust loans, and we would like to repay these on terms that are not
prejudicial to our own growth. But the general statement that we should only borrow on our own terms is a bit
unrealistic. Comm. Monsod is one who knew whereof he spoke.
7. Justice Morales also declares that the optimal time for the conversion of an FTAA into an MPSA is after
completion of the exploration phase and just before undertaking the development and construction phase, on account
of the fact that the requirement for a minimum investment of $50 million is applicable only during the development,
construction and utilization phase, but not during the exploration phase, when the foreign contractor need merely
comply with minimum ground expenditures. Thus by converting, the foreign contractor maximizes its profits by
avoiding its obligation to make the minimum investment of $50 million.
This argument forgets that the foreign contractor is in the game precisely to make money. In order to come
anywhere near profitability, the contractor must first extract and sell the mineral ore. In order to do that, it must also
develop and construct the mining facilities, set up its machineries and equipment and dig the tunnels to get to the
deposit. The contractor is thus compelled to expend funds in order to make profits. If it decides to cut back on
investments and expenditures, it will necessarily sacrifice the pace of development and utilization; it will necessarily
sacrifice the amount of profits it can make from the mining operations. In fact, at certain less-than-optimal levels of
operation, the stream of revenues generated may not even be enough to cover variable expenses, let alone overhead
expenses; this is a dismal situation anyone would want to avoid. In order to make money, one has to spend
money. This truism applies to the mining industry as well.
8. Mortgaging the minerals to secure a foreign FTAA contractors obligations is anomalous, according to Justice
Morales since the contractor was from the beginning obliged to provide all financing needed for the mining
operations. However, the mortgaging of minerals by the contractor does not necessarily signify that the contractor is
unable to provide all financing required for the project, or that it does not have the financial capability to undertake
large-scale operations. Mortgaging of mineral products, just like the assignment (by way of security) of manufactured
goods and goods in inventory, and the assignment of receivables, is an ordinary requirement of banks, even in the case
of clients with more than sufficient financial resources. And nowadays, even the richest and best managed corporations
make use of bank credit facilities -- it does not necessarily signify that they do not have the financial resources or are
unable to provide the financing on their own; it is just a manner of maximizing the use of their funds.
9. Does the contractor in reality acquire the surface rights for free, by virtue of the fact that it is entitled to
reimbursement for the costs of acquisition and maintenance, adjusted for inflation? We think not. The
reimbursement is possible only at the end of the term of the contract, when the surface rights will no longer be
needed, and the land previously acquired will have to be disposed of, in which case the contractor gets reimbursement
from the sales proceeds. The contractor has to pay out the acquisition price for the land. That money will belong to the
seller of the land. Only if and when the land is finally sold off will the contractor get any reimbursement. In other
words, the contractor will have been cash-out for the entire duration of the term of the contract -- 25 or 50 years,
depending. If we calculate the cost of money at say 12 percent per annum, that is the cost or opportunity loss to the
contractor, in addition to the amount of the acquisition price. 12 percent per annum for 50 years is 600 percent; this,
without any compounding yet. The cost of money is therefore at least 600 percent of the original acquisition cost; it is in
addition to the acquisition cost. For free? Not by a long shot.
10. The contractor will acquire and hold up to 5,000 hectares? We doubt it. The acquisition by the State of land for
the contractor is just to enable the contractor to establish its mine site, build its facilities, establish a tailings pond, set up
its machinery and equipment, and dig mine shafts and tunnels, etc. It is impossible that the surface requirement will
aggregate 5,000 hectares. Much of the operations will consist of the tunneling and digging underground, which will not
require possessing or using any land surface. 5,000 hectares is way too much for the needs of a mining operator. It
simply will not spend its cash to acquire property that it will not need; the cash may be better employed for the actual
mining operations, to yield a profit.
11. Justice Carpio claims that the phrase among other things (found in the second paragraph of Section 81 of the
Mining Act) is being incorrectly treated as a delegation of legislative power to the DENR secretary to issue DAO 99-56
and prescribe the formulae therein on the States share from mining operations. He adds that the phrase among other
things was not intended as a delegation of legislative power to the DENR secretary, much less could it be deemed a
valid delegation of legislative power, since there is nothing in the second paragraph of Section 81 which can be said to
grant any delegated legislative power to the DENR secretary. And even if there were, such delegation would be void,
for lack of any standards by which the delegated power shall be exercised.
While there is nothing in the second paragraph of Section 81 which can directly be construed as a delegation of
legislative power to the DENR secretary, it does not mean that DAO 99-56 is invalid per se, or that the secretary acted
without any authority or jurisdiction in issuing DAO 99-56. As we stated earlier in our Prologue, Who or what organ of
government actually exercises this power of control on behalf of the State? The Constitution is crystal clear: the President. Indeed,
the Chief Executive is the official constitutionally mandated to enter into agreements with foreign owned corporations. On the
other hand, Congress may review the action of the President once it is notified of every contract entered into in accordance with
this [constitutional] provision within thirty days from its execution. It is the President who is constitutionally mandated to
enter into FTAAs with foreign corporations, and in doing so, it is within the Presidents prerogative to specify certain
terms and conditions of the FTAAs, for example, the fiscal regime of FTAAs -- i.e., the sharing of the net mining
revenues between the contractor and the State.
Being the Presidents alter ego with respect to the control and supervision of the mining industry, the DENR
secretary, acting for the President, is necessarily clothed with the requisite authority and power to draw up guidelines
delineating certain terms and conditions, and specifying therein the terms of sharing of benefits from mining, to be
applicable to FTAAs in general. It is important to remember that DAO 99-56 has been in existence for almost six years,
and has not been amended or revoked by the President.
The issuance of DAO 99-56 did not involve the exercise of delegated legislative power. The legislature did not delegate the
power to determine the nature, extent and composition of the items that would come under the phrase among other
things. The legislatures power pertains to the imposition of taxes, duties and fees. This power was not delegated to the
DENR secretary. But the power to negotiate and enter into FTAAs was withheld from Congress, and reserved for the
President. In determining the sharing of mining benefits, i.e., in specifying what the phrase among other things include,
the President (through the secretary acting in his/her behalf) was not determining the amount or rate of taxes, duties
and fees, but rather the amount of INCOME to be derived from minerals to be extracted and sold, income which
belongs to the State as owner of the mineral resources. We may say that, in the second paragraph of Section 81, the
legislature in a sense intruded partially into the Presidents sphere of authority when the former provided that
The Government share in financial or technical assistance agreement shall consist of, among other things, the contractors
corporate income tax, excise tax, special allowance, withholding tax due from the contractors foreign stockholders arising from
dividend or interest payments to the said foreign stockholder in case of a foreign national and all such other taxes, duties and fees as
provided for under existing laws. (Italics supplied)
But it did not usurp the Presidents authority since the provision merely included the enumerated items as part of
the government share, without foreclosing or in any way preventing (as in fact Congress could not validly prevent) the
President from determining what constitutes the States compensation derived from FTAAs. In this case, the President
in effect directed the inclusion or addition of other things, viz., INCOME for the owner of the resources, in the
governments share, while adopting the items enumerated by Congress as part of the government share also.
12. Justice Carpios insistence on applying the ejusdem generis rule of statutory construction to the phrase among
other things is therefore useless, and must fall by the wayside. There is no point trying to construe that phrase in
relation to the enumeration of taxes, duties and fees found in paragraph 2 of Section 81, precisely because the
constitutional power to prescribe the sharing of mining income between the State and mining companies, to quote
Justice Carpio pursuant to an FTAA is constitutionally lodged with the President, not with Congress. It thus makes
no sense to persist in giving the phrase among other things a restricted meaning referring only to taxes, duties and fees.
13. Strangely, Justice Carpio claims that the DENR secretary can change the formulae in DAO 99-56 any time even
without the approval of the President, and the secretary is the sole authority to determine the amount of consideration
that the State shall receive in an FTAA, because Section 5 of the DAO states that xxx any amendment of an FTAA other
than the provision on fiscal regime shall require the negotiation with the Negotiation Panel and the recommendation of the
Secretary for approval of the President xxx. Allegedly, because of that provision, if an amendment in the FTAA involves
non-fiscal matters, the amendment requires approval of the President, but if the amendment involves a change in the
fiscal regime, the DENR secretary has the final authority, and approval of the President may be dispensed with; hence
the secretary is more powerful than the President.
We believe there is some distortion resulting from the quoted provision being taken out of context. Section 5 of
DAO 99-56 reads as follows:
Section 5. Status of Existing FTAAs. All FTAAs approved prior to the effectivity of this Administrative Order shall
remain valid and be recognized by the Government: Provided, That should a Contractor desire to amend its FTAA, it
shall do so by filing a Letter of Intent (LOI) to the Secretary thru the Director. Provided, further, That if the Contractor
desires to amend the fiscal regime of its FTAA, it may do so by seeking for the amendment of its FTAAs whole fiscal
regime by adopting the fiscal regime provided hereof: Provided, finally, That any amendment of an FTAA other than
the provision on fiscal regime shall require the negotiation with the Negotiating Panel and the recommendation of the
Secretary for approval of the President of the Republic of the Philippines. (underscoring supplied)
It looks like another case of misapprehension. The proviso being objected to by Justice Carpio is actually preceded
by a phrase that requires a contractor desiring to amend the fiscal regime of its FTAA, to amend the same by adopting
the fiscal regime prescribed in DAO 99-56 -- i.e., solely in that manner, and in no other. Obviously, since DAO 99-56
was issued by the secretary under the authority and with the presumed approval of the President, the amendment of
an FTAA by merely adopting the fiscal regime prescribed in said DAO 99-56 (and nothing more) need not have the
express clearance of the President anymore. It is as if the same had been pre-approved. We cannot fathom the
complaint that that makes the secretary more powerful than the President, or that the former is trying to hide things
from the President or Congress.
14. Based on the first sentence of Section 5 of DAO 99-56, which states [A]ll FTAAs approved prior to the
effectivity of this Administrative Order shall remain valid and be recognized by the Government, Justice Carpio
concludes that said Administrative Order allegedly exemptsFTAAs approved prior to its effectivity -- like the WMCP
FTAA -- from having to pay the State any share from their mining income, apart from taxes, duties and fees.
We disagree. What we see in black and white is the statement that the FTAAs approved before the DAO came into
effect are to continue to be valid and will be recognized by the State. Nothing is said about their fiscal regimes. Certainly,
there is no basis to claim that the contractors under said FTAAs were being exempted from paying the government a
share in their mining incomes.
For the record, the WMCP FTAA is NOT and has never been exempt from paying the government share. The
WMCP FTAA has its own fiscal regime -- Section 7.7 -- which gives the government a 60 percent share in the net
mining revenues of WMCP from the commencement of commercial production.
For that very reason, we have never said that DAO 99-56 is the basis for claiming that the WMCP FTAA has a
consideration. Hence, we find quite out of place Justice Carpios statement that ironically, DAO 99-56, the very authority
cited to support the claim that the WMCP FTAA has a consideration, does not apply to the WMCP FTAA. By its own express
terms, DAO 99-56 does not apply to FTAAs executed before the issuance of DAO 99-56, like the WMCP FTAA. The majoritys
position has allegedly no leg to stand on since even DAO 99-56, assuming it is valid, cannot save the WMCP FTAA from want of
consideration. Even assuming arguendo that DAO 99-56 does not apply to the WMCP FTAA, nevertheless, the WMCP
FTAA has its own fiscal regime, found in Section 7.7 thereof. Hence, there is no such thing as want of consideration
here.
Still more startling is this claim: The majority supposedly agrees that the provisions of the WMCP FTAA, which grant a
sham consideration to the State, are void. Since the majority agrees that the WMCP FTAA has a sham consideration, the WMCP
FTAA thus lacks the third element of a valid contract. The Decision should declare the WMCP FTAA void for want of
consideration unless it treats the contract as an MPSA under Section 80. Indeed the only recourse of WMCP to save the validity of
its contract is to convert it into an MPSA.
To clarify, we said that Sections 7.9 and 7.8(e) of the WMCP FTAA are provisions grossly disadvantageous to
government and detrimental to the interests of the Filipino people, as well as violative of public policy, and must
therefore be stricken off as invalid. Since the offending provisions are very much separable from Section 7.7 and the
rest of the FTAA, the deletion of Sections 7.9 and 7.8(e) can be done without affecting or requiring the invalidation of
the WMCP FTAA itself, and such deletion will preserve for government its due share of the 60 percent
benefits. Therefore, the WMCP FTAA is NOT bereft of a valid consideration (assuming for the nonce that indeed this is
the consideration of the FTAA).
SUMMATION
To conclude, a summary of the key points discussed above is now in order.
The Meaning of Agreements Involving
Either Technical or Financial Assistance
Applying familiar principles of constitutional construction to the phrase agreements involving either technical or
financial assistance, the framers choice of words does not indicate the intent to exclude other modes of assistance, but
rather implies that there are other things being included or possibly being made part of the agreement, apart from
financial or technical assistance. The drafters avoided the use of restrictive and stringent phraseology; a verba
legis scrutiny of Section 2 of Article XII of the Constitution discloses not even a hint of a desire to prohibitforeign
involvement in the management or operation of mining activities, or to eradicate service contracts. Such moves would
necessarily imply an underlying drastic shift in fundamental economic and developmental policies of the State. That
change requires a much more definite and irrefutable basis than mere omission of the words service contract from the
new Constitution.
Furthermore, a literal and restrictive interpretation of this paragraph leads to logical inconsistencies. A constitutional
provision specifically allowing foreign-owned corporations to render financial or technical assistance in respect of
mining or any other commercial activity was clearly unnecessary; the provision was meant to refer to more than mere
financial or technical assistance.
Also, if paragraph 4 permits only agreements for financial or technical assistance, there would be no point in
requiring that they be based on real contributions to the economic growth and general welfare of the country. And
considering that there were various long-term service contracts still in force and effect at the time the new Charter was
being drafted, the absence of any transitory provisions to govern the termination and closing-out of the then existing
service contracts strongly militates against the theory that the mere omission of service contracts signaled their
prohibition by the new Constitution.
Resort to the deliberations of the Constitutional Commission is therefore unavoidable, and a careful scrutiny
thereof conclusively shows that the ConCom members discussed agreements involving either technical or financial
assistance in the same sense as service contracts and used the terms interchangeably. The drafters in fact knew that the
agreements with foreign corporations were going to entail not mere technical or financial assistance but, rather, foreign
investment in and management of an enterprise for large-scale exploration, development and utilization of minerals.
The framers spoke about service contracts as the concept was understood in the 1973 Constitution. It is obvious from
their discussions that they did not intend to ban or eradicate service contracts. Instead, they were intent on crafting
provisions to put in place safeguards that would eliminate or minimize the abuses prevalent during the martial law
regime. In brief, they were going to permit service contracts with foreign corporations as contractors, but with safety
measures to prevent abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article
XII, which reserves or limits to Filipino citizens and corporations at least 60 percent owned by such citizens the
exploration, development and utilization of mineral or petroleum resources. This was prompted by the
perceived insufficiency of Filipino capital and the felt need for foreign expertise in the EDU of mineral resources.
Despite strong opposition from some ConCom members during the final voting, the Article on the National
Economy and Patrimony -- including paragraph 4 allowing service contracts with foreign corporations as an exception
to the general norm in paragraph 1 of Section 2 of the same Article -- was resoundingly and overwhelmingly approved.
The drafters, many of whom were economists, academicians, lawyers, businesspersons and politicians knew that
foreign entities will not enter into agreements involving assistance without requiring measures of protection to ensure
the success of the venture and repayment of their investments, loans and other financial assistance, and ultimately to
protect the business reputation of the foreign corporations. The drafters, by specifying such agreements involving
assistance, necessarily gave implied assent to everything that these agreements entailed or that could reasonably be
deemed necessary to make them tenable and effective -- including management authority with respect to the day-to-
day operations of the enterprise, and measures for the protection of the interests of the foreign corporation, at least to
the extent that they are consistent with Philippine sovereignty over natural resources, the constitutional requirement of
State control, and beneficial ownership of natural resources remaining vested in the State.
From the foregoing, it is clear that agreements involving either technical or financial assistance referred to in paragraph
4 are in factservice contracts, but such new service contracts are between foreign corporations acting as contractors on
the one hand, and on the other hand government as principal or owner (of the works), whereby the foreign contractor
provides the capital, technology and technical know-how, and managerial expertise in the creation and operation of the
large-scale mining/extractive enterprise, and government through its agencies (DENR, MGB) actively exercises full
control and supervision over the entire enterprise.
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The
grant of such service contracts is subject to several safeguards, among them: (1) that the service contract be crafted in
accordance with a general law setting standard or uniform terms, conditions and requirements; (2) the President be the
signatory for the government; and (3) the President report the executed agreement to Congress within thirty days.
Ultimate Test:
Full State Control
To repeat, the primacy of the principle of the States sovereign ownership of all mineral resources, and its full
control and supervision over all aspects of exploration, development and utilization of natural resources must be
upheld. But full control and supervision cannot be taken literally to mean that the State controls and
supervises everything down to the minutest details and makes all required actions, as this would render impossible the
legitimate exercise by the contractor of a reasonable degree of management prerogative and authority, indispensable to
the proper functioning of the mining enterprise. Also, government need not micro-manage mining operations and day-
to-day affairs of the enterprise in order to be considered as exercising full control and supervision.
Control, as utilized in Section 2 of Article XII, must be taken to mean a degree of control sufficient to enable the
State to direct, restrain, regulate and govern the affairs of the extractive enterprises. Control by the State may be on a
macro level, through the establishment of policies, guidelines, regulations, industry standards and similar measures
that would enable government to regulate the conduct of affairs in various enterprises, and restrain activities deemed
not desirable or beneficial, with the end in view of ensuring that these enterprises contribute to the economic
development and general welfare of the country, conserve the environment, and uplift the well-being of the local
affected communities. Such a degree of control would be compatible with permitting the foreign contractor sufficient
and reasonable management authority over the enterprise it has invested in, to ensure efficient and profitable operation.
Government Granted Full Control
by RA 7942 and DAO 96-40
Baseless are petitioners sweeping claims that RA 7942 and its Implementing Rules and Regulations make it
possible for FTAA contracts to cede full control and management of mining enterprises over to fully foreign owned
corporations. Equally wobbly is the assertion that the State is reduced to a passive regulator dependent on submitted
plans and reports, with weak review and audit powers and little say in the decision-making of the enterprise, for which
reasons beneficial ownership of the mineral resources is allegedly ceded to the foreign contractor.
As discussed hereinabove, the States full control and supervision over mining operations are ensured through the
following provisions in RA 7942: Sections 8, 9, 16, 19, 24, 35[(b), (e), (f), (g), (h), (k), (l), (m) and (o)], 40, 57, 66, 69, 70, and
Chapters XI and XVII; as well as the following provisions of DAO 96-40: Sections7[(d) and (f)], 35(a-2), 53[(a-4) and (d)],
54, 56[(g), (h), (l), (m) and (n)], 56(2), 60, 66, 144, 168, 171 and 270, and also Chapters XV, XVI and XXIV.
Through the foregoing provisions, the government agencies concerned are empowered to approve or disapprove --
hence, in a position to influence, direct, and change -- the various work programs and the corresponding minimum
expenditure commitments for each of the exploration, development and utilization phases of the enterprise. Once they
have been approved, the contractors compliance with its commitments therein will be monitored. Figures for mineral
production and sales are regularly monitored and subjected to government review, to ensure that the products and by-
products are disposed of at the best prices; copies of sales agreements have to be submitted to and registered with MGB.
The contractor is mandated to open its books of accounts and records for scrutiny, to enable the State to determine
that the government share has been fully paid. The State may likewise compel compliance by the contractor with
mandatory requirements on mine safety, health and environmental protection, and the use of anti-pollution technology
and facilities. The contractor is also obligated to assist the development of the mining community, and pay royalties to
the indigenous peoples concerned. And violation of any of the FTAAs terms and conditions, and/or non-compliance
with statutes or regulations, may be penalized by cancellation of the FTAA. Such sanction is significant to a contractor
who may have yet to recover the tens or hundreds of millions of dollars sunk into a mining project.
Overall, the State definitely has a pivotal say in the operation of the individual enterprises, and can set directions
and objectives, detect deviations and non-compliances by the contractor, and enforce compliance and impose sanctions
should the occasion arise. Hence, RA 7942 and DAO 96-40 vest in government more than a sufficient degree of control
and supervision over the conduct of mining operations.
Section 3(aq) of RA 7942 was objected to as being unconstitutional for allowing a foreign contractor to apply for
and hold an exploration permit. During the exploration phase, the permit grantee (and prospective contractor) is
spending and investing heavily in exploration activities without yet being able to extract minerals and generate
revenues. The exploration permit issued under Sections 3(aq), 20 and 23 of RA 7942, which allows exploration but not
extraction, serves to protect the interests and rights of the exploration permit grantee (and would-be contractor), foreign
or local. Otherwise, the exploration works already conducted, and expenditures already made, may end up only
benefiting claim-jumpers. Thus, Section 3(aq) of RA 7942 is not unconstitutional.
WMCP FTAA Likewise Gives the
State Full Control and Supervision
The WMCP FTAA obligates the contractor to account for the value of production and sale of minerals (Clause 1.4);
requires that the contractors work program, activities and budgets be approved by the State (Clause 2.1); gives the
DENR secretary power to extend the exploration period (Clause 3.2-a); requires approval by the State for incorporation
of lands into the contract area (Clause 4.3-c); requires Bureau of Forest Development approval for inclusion of forest
reserves as part of the FTAA contract area (Clause 4.5); obligates the contractor to periodically relinquish parts of the
contract area not needed for exploration and development (Clause 4.6); requires submission of a declaration of mining
feasibility for approval by the State (Clause 4.6-b); obligates the contractor to report to the State the results of its
exploration activities (Clause 4.9); requires the contractor to obtain State approval for its work programs for the
succeeding two year periods, containing the proposed work activities and expenditures budget related to exploration
(Clause 5.1); requires the contractor to obtain State approval for its proposed expenditures for exploration activities
(Clause 5.2); requires the contractor to submit an annual report on geological, geophysical, geochemical and other
information relating to its explorations within the FTAA area (Clause 5.3-a); requires the contractor to submit within six
months after expiration of exploration period a final report on all its findings in the contract area (Clause 5.3-b); requires
the contractor after conducting feasibility studies to submit a declaration of mining feasibility, along with a description
of the area to be developed and mined, a description of the proposed mining operations and the technology to be
employed, and the proposed work program for the development phase, for approval by the DENR secretary (Clause
5.4); obligates the contractor to complete the development of the mine, including construction of the production
facilities, within the period stated in the approved work program (Clause 6.1); requires the contractor to submit for
approval a work program covering each period of three fiscal years (Clause 6.2); requires the contractor to submit
reports to the secretary on the production, ore reserves, work accomplished and work in progress, profile of its work
force and management staff, and other technical information (Clause 6.3); subjects any expansions, modifications,
improvements and replacements of mining facilities to the approval of the secretary (Clause 6.4); subjects to State
control the amount of funds that the contractor may borrow within the Philippines (Clause 7.2); subjects to State
supervisory power any technical, financial and marketing issues (Clause 10.1-a); obligates the contractor to ensure 60
percent Filipino equity in the contractor within ten years of recovering specified expenditures unless not so required by
subsequent legislation (Clause 10.1); gives the State the right to terminate the FTAA for unremedied substantial breach
thereof by the contractor (Clause 13.2); requires State approval for any assignment of the FTAA by the contractor to an
entity other than an affiliate (Clause 14.1).
In short, the aforementioned provisions of the WMCP FTAA, far from constituting a surrender of control and a
grant of beneficial ownership of mineral resources to the contractor in question, vest the State with control and
supervision over practically all aspects of the operations of the FTAA contractor, including the charging of pre-
operating and operating expenses, and the disposition of mineral products.
There is likewise no relinquishment of control on account of specific provisions of the WMCP FTAA. Clause 8.2
provides a mechanism to prevent the mining operations from grinding to a complete halt as a result of possible delays
of more than 60 days in the governments processing and approval of submitted work programs and budgets. Clause
8.3 seeks to provide a temporary, stop-gap solution in case a disagreement between the State and the contractor (over
the proposed work program or budget submitted by the contractor) should result in a deadlock or impasse, to avoid
unreasonably long delays in the performance of the works.
The State, despite Clause 8.3, still has control over the contract area, and it may, as sovereign authority, prohibit
work thereon until the dispute is resolved, or it may terminate the FTAA, citing substantial breach thereof. Hence, the
State clearly retains full and effective control.
Clause 8.5, which allows the contractor to make changes to approved work programs and budgets without the
prior approval of the DENR secretary, subject to certain limitations with respect to the variance/s, merely provides the
contractor a certain amount of flexibility to meet unexpected situations, while still guaranteeing that the approved work
programs and budgets are not abandoned altogether. And if the secretary disagrees with the actions taken by the
contractor in this instance, he may also resort to cancellation/termination of the FTAA as the ultimate sanction.
Clause 4.6 of the WMCP FTAA gives the contractor discretion to select parts of the contract area to be
relinquished. The State is not in a position to substitute its judgment for that of the contractor, who knows exactly
which portions of the contract area do not contain minerals in commercial quantities and should be relinquished. Also,
since the annual occupation fees paid to government are based on the total hectarage of the contract area, net of the
areas relinquished, the contractors self-interest will assure proper and efficient relinquishment.
Clause 10.2(e) of the WMCP FTAA does not mean that the contractor can compel government to use its power of
eminent domain. It contemplates a situation in which the contractor is a foreign-owned corporation, hence, not
qualified to own land. The contractor identifies the surface areas needed for it to construct the infrastructure for mining
operations, and the State then acquires the surface rights on behalf of the former. The provision does not call for the
exercise of the power of eminent domain (or determination of just compensation); it seeks to avoid a violation of the
anti-dummy law.
Clause 10.2(l) of the WMCP FTAA giving the contractor the right to mortgage and encumber the mineral products
extracted may have been a result of conditions imposed by creditor-banks to secure the loan obligations of
WMCP. Banks lend also upon the security of encumbrances on goods produced, which can be easily sold and
converted into cash and applied to the repayment of loans. Thus, Clause 10.2(l) is not something out of the
ordinary. Neither is it objectionable, because even though the contractor is allowed to mortgage or encumber the
mineral end-products themselves, the contractor is not thereby relieved of its obligation to pay the government its basic
and additional shares in the net mining revenue. The contractors ability to mortgage the minerals does not negate the
States right to receive its share of net mining revenues.
Clause 10.2(k) which gives the contractor authority to change its equity structure at any time, means that
WMCP, which was then 100 percent foreign owned, could permit Filipino equity ownership. Moreover, what is
important is that the contractor, regardless of its ownership, is always in a position to render the services required
under the FTAA, under the direction and control of the government.
Clauses 10.4(e) and (i) bind government to allow amendments to the FTAA if required by banks and other
financial institutions as part of the conditions of new lendings. There is nothing objectionable here, since Clause 10.4(e)
also provides that such financing arrangements should in no event reduce the contractors obligations or the
governments rights under the FTAA. Clause 10.4(i) provides that government shall favourably consider any request
for amendments of this agreement necessary for the contractor to successfully obtain financing. There is no
renunciation of control, as the proviso does not say that government shall automatically grant any such request. Also, it
is up to the contractor to prove the need for the requested changes. The government always has the final say on
whether to approve or disapprove such requests.
In fine, the FTAA provisions do not reduce or abdicate State control.
No Surrender of
Financial Benefits
The second paragraph of Section 81 of RA 7942 has been denounced for allegedly limiting the States share in
FTAAs with foreign contractors to just taxes, fees and duties, and depriving the State of a share in the after-tax
income of the enterprise. However, the inclusion of the phrase among other things in the second paragraph of Section
81 clearly and unmistakably reveals the legislative intent to have the State collect more than just the usual taxes, duties and
fees.
Thus, DAO 99-56, the Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance Agreements, spells
out the financial benefits government will receive from an FTAA, as consisting of not only a basic government share,
comprised of all direct taxes, fees and royalties, as well as other payments made by the contractor during the term of the
FTAA, but also an additional government share, being a share in the earnings or cash flows of the mining
enterprise, so as to achieve a fifty-fifty sharing of net benefits from miningbetween the government and the contractor.
The additional government share is computed using one of three (3) options or schemes detailed in DAO 99-
56, viz., (1) the fifty-fifty sharing of cumulative present value of cash flows; (2) the excess profit-related additional
government share; and (3) the additional sharing based on the cumulative net mining revenue. Whichever option or
computation is used, the additional government share has nothing to do with taxes, duties, fees or charges. The portion
of revenues remaining after the deduction of the basic and additional government shares is what goes to the contractor.
The basic government share and the additional government share do not yet take into account the indirect taxes
and other financial contributions of mining projects, which are real and actual benefits enjoyed by the Filipino people; if
these are taken into account, total government share increases to 60 percent or higher (as much as 77 percent, and 89
percent in one instance) of the net present value of total benefits from the project.
The third or last paragraph of Section 81 of RA 7942 is slammed for deferring the payment of the government share
in FTAAs until after the contractor shall have recovered its pre-operating expenses, exploration and development
expenditures. Allegedly, the collection of the States share is rendered uncertain, as there is no time limit in RA 7942 for
this grace period or recovery period. But although RA 7942 did not limit the grace period, the concerned agencies
(DENR and MGB) in formulating the 1995 and 1996 Implementing Rules and Regulations provided that the period of
recovery, reckoned from the date of commercial operation, shall be for a period not exceeding five years, or until the
date of actual recovery, whichever comes earlier.
And since RA 7942 allegedly does not require government approval for the pre-operating, exploration and
development expenses of the foreign contractors, it is feared that such expenses could be bloated to wipe out mining
revenues anticipated for 10 years, with the result that the States share is zero for the first 10 years. However, the
argument is based on incorrect information.
Under Section 23 of RA 7942, the applicant for exploration permit is required to submit a proposed work program
for exploration, containing a yearly budget of proposed expenditures, which the State passes upon and either approves
or rejects; if approved, the same will subsequently be recorded as pre-operating expenses that the contractor will have
to recoup over the grace period.
Under Section 24, when an exploration permittee files with the MGB a declaration of mining project feasibility, it
must submit a work program for development, with corresponding budget, for approval by the Bureau, before
government may grant an FTAA or MPSA or other mineral agreements; again, government has the opportunity to
approve or reject the proposed work program and budgeted expenditures fordevelopment works, which will become
the pre-operating and development costs that will have to be recovered. Government is able to know ahead of time the
amounts of pre-operating and other expenses to be recovered, and the approximate period of time needed therefor. The
aforecited provisions have counterparts in Section 35, which deals with the terms and conditions exclusively applicable
to FTAAs. In sum, the third or last paragraph of Section 81 of RA 7942 cannot be deemed defective.
Section 80 of RA 7942 allegedly limits the States share in a mineral production-sharing agreement (MPSA) to just
the excise tax on the mineral product, i.e., only 2 percent of market value of the minerals. The colatilla in Section 84
reiterates the same limitation in Section 80. However, these two provisions pertain only to MPSAs, and have no
application to FTAAs. These particular provisions do not come within the issues defined by this Court. Hence, on
due process grounds, no pronouncement can be made in this case in respect of the constitutionality of Sections 80
and 84.
Section 112 is disparaged for reverting FTAAs and all mineral agreements to the old license, concession or lease
system, because it allegedly effectively reduces the government share in FTAAs to just the 2 percent excise tax which
pursuant to Section 80 comprises the government share in MPSAs. However, Section 112 likewise does not come
within the issues delineated by this Court, and was never touched upon by the parties in their pleadings. Moreover,
Section 112 may not properly apply to FTAAs. The mining law obviously meant to treat FTAAs as a breed apart from mineral
agreements. There is absolutely no basis to believe that the law intends to exact from FTAA contractors merely the same
government share (i.e., the 2 percent excise tax) that it apparently demands from contractors under the three forms of
mineral agreements.
While there is ground to believe that Sections 80, 84 and 112 are indeed unconstitutional, they cannot be ruled
upon here. In any event, they are separable; thus, a later finding of nullity will not affect the rest of RA 7942.
In fine, the challenged provisions of RA 7942 cannot be said to surrender financial benefits from an FTAA to
the foreign contractors.
Moreover, there is no concrete basis for the view that, in FTAAs with a foreign contractor, the State must receive at
least 60 percent of the after-tax income from the exploitation of its mineral resources, and that such share is the
equivalent of the constitutional requirement that at least 60 percent of the capital, and hence 60 percent of the income, of
mining companies should remain in Filipino hands. Even if the State is entitled to a 60 percent share from other
mineral agreements (CPA, JVA and MPSA), that would not create a parallel or analogous situation for FTAAs. We are
dealing with an essentially different equation. Here we have the old apples and oranges syndrome.
The Charter did not intend to fix an iron-clad rule of 60 percent share, applicable to all situations, regardless of
circumstances. There is no indication of such an intention on the part of the framers. Moreover, the terms and
conditions of petroleum FTAAs cannot serve as standards for mineral mining FTAAs, because the technical and
operational requirements, cost structures and investment needs of off-shore petroleum exploration and drilling
companies do not have the remotest resemblance to those of on-shore mining companies.
To take the position that governments share must be not less than 60 percent of after-tax income of FTAA
contractors is nothing short of this Court dictating upon the government. The State resultantly ends up losing control. To
avoid compromising the States full control and supervision over the exploitation of mineral resources, there must be no
attempt to impose a minimum 60 percent rule. It is sufficient that the State has the power and means, should it so
decide, to get a 60 percent share (or greater); and it is not necessary that the State does so inevery case.
Invalid Provisions of
the WMCP FTAA
Section 7.9 of the WMCP FTAA clearly renders illusory the States 60 percent share of WMCPs revenues. Under
Section 7.9, should WMCPs foreign stockholders (who originally owned 100 percent of the equity) sell 60 percent or
more of their equity to a Filipino citizen or corporation, the State loses its right to receive its share in net mining
revenues under Section 7.7, without any offsetting compensation to the State. And what is given to the State in Section
7.7 is by mere tolerance of WMCPs foreign stockholders, who can at any time cut off the governments entire share by
simply selling 60 percent of WMCPs equity to a Philippine citizen or corporation.
In fact, the sale by WMCPs foreign stockholder on January 23, 2001 of the entire outstanding equity in WMCP to
Sagittarius Mines, Inc., a domestic corporation at least 60 percent Filipino owned, can be deemed to have automatically
triggered the operation of Section 7.9 and removed the States right to receive its 60 percent share. Section 7.9 of the
WMCP FTAA has effectively given away the States share without anything in exchange.
Moreover, it constitutes unjust enrichment on the part of the local and foreign stockholders in WMCP, because by
the mere act of divestment, the local and foreign stockholders get a windfall, as their share in the net mining revenues
of WMCP is automatically increased, without having to pay anything for it.
Being grossly disadvantageous to government and detrimental to the Filipino people, as well as violative of public
policy, Section 7.9 must therefore be stricken off as invalid. The FTAA in question does not involve mere contractual
rights but, being impressed as it is with public interest, the contractual provisions and stipulations must yield to the
common good and the national interest. Since the offending provision is very much separable from the rest of the
FTAA, the deletion of Section 7.9 can be done without affecting or requiring the invalidation of the entire WMCP FTAA
itself.
Section 7.8(e) of the WMCP FTAA likewise is invalid, since by allowing the sums spent by government for the
benefit of the contractor to be deductible from the States share in net mining revenues, it results in benefiting the
contractor twice over. This constitutes unjust enrichment on the part of the contractor, at the expense of
government. For being grossly disadvantageous and prejudicial to government and contrary to public policy, Section
7.8(e) must also be declared without effect. It may likewise be stricken off without affecting the rest of the FTAA.
EPILOGUE
AFTER ALL IS SAID AND DONE, it is clear that there is unanimous agreement in the Court upon the key
principle that the State must exercise full control and supervision over the exploration, development and utilization of
mineral resources.
The crux of the controversy is the amount of discretion to be accorded the Executive Department, particularly the President of
the Republic, in respect of negotiations over the terms of FTAAs, particularly when it comes to the government share of financial
benefits from FTAAs. The Court believes that it is not unconstitutional to allow a wide degree of discretion to the Chief
Executive, given the nature and complexity of such agreements, the humongous amounts of capital and financing
required for large-scale mining operations, the complicated technology needed, and the intricacies of international trade,
coupled with the States need to maintain flexibility in its dealings, in order to preserve and enhance our countrys
competitiveness in world markets.
We are all, in one way or another, sorely affected by the recently reported scandals involving corruption in high
places, duplicity in the negotiation of multi-billion peso government contracts, huge payoffs to government officials,
and other malfeasances; and perhaps, there is the desire to see some measures put in place to prevent further
abuse. However, dictating upon the President what minimum share to get from an FTAA is not the solution. It sets
a bad precedent since such a move institutionalizes the very reduction if not deprivation of the States control. The
remedy may be worse than the problem it was meant to address. In any event, provisions in such future agreements
which may be suspected to be grossly disadvantageous or detrimental to government may be challenged in court, and
the culprits haled before the bar of justice.
Verily, under the doctrine of separation of powers and due respect for co-equal and coordinate branches of
government, this Court must restrain itself from intruding into policy matters and must allow the President and
Congress maximum discretion in using the resources of our country and in securing the assistance of foreign groups to
eradicate the grinding poverty of our people and answer their cry for viable employment opportunities in the country.
The judiciary is loath to interfere with the due exercise by coequal branches of government of their official functions.
[99]
As
aptly spelled out seven decades ago by Justice George Malcolm, Just as the Supreme Court, as the guardian of constitutional
rights, should not sanction usurpations by any other department of government, so should it as strictly confine its own sphere of
influence to the powers expressly or by implication conferred on it by the Organic Act.
[100]
Let the development of the mining
industry be the responsibility of the political branches of government. And let not this Court interfere inordinately and
unnecessarily.
The Constitution of the Philippines is the supreme law of the land. It is the repository of all the aspirations and
hopes of all the people. We fully sympathize with the plight of Petitioner La Bugal Blaan and other tribal groups, and
commend their efforts to uplift their communities. However, we cannot justify the invalidation of an otherwise
constitutional statute along with its implementing rules, or the nullification of an otherwise legal and binding FTAA
contract.
We must never forget that it is not only our less privileged brethren in tribal and cultural communities who
deserve the attention of this Court; rather, all parties concerned -- including the State itself, the contractor (whether
Filipino or foreign), and the vast majority of our citizens -- equally deserve the protection of the law and of this
Court. To stress, the benefits to be derived by the State from mining activities must ultimately serve the great majority
of our fellow citizens. They have as much right and interest in the proper and well-ordered development and utilization
of the countrys mineral resources as the petitioners.
Whether we consider the near term or take the longer view, we cannot overemphasize the need for an appropriate
balancing of interests and needs -- the need to develop our stagnating mining industry and extract what NEDA
Secretary Romulo Neri estimates is some US$840 billion (approx. PhP47.04 trillion) worth of mineral wealth lying
hidden in the ground, in order to jumpstart our floundering economy on the one hand, and on the other, the need to
enhance our nationalistic aspirations, protect our indigenous communities, and prevent irreversible ecological damage.
This Court cannot but be mindful that any decision rendered in this case will ultimately impact not only the
cultural communities which lodged the instant Petition, and not only the larger community of the Filipino people now
struggling to survive amidst a fiscal/budgetary deficit, ever increasing prices of fuel, food, and essential commodities
and services, the shrinking value of the local currency, and a government hamstrung in its delivery of basic services by
a severe lack of resources, but also countless future generations of Filipinos.
For this latter group of Filipinos yet to be born, their eventual access to education, health care and basic services,
their overall level of well-being, the very shape of their lives are even now being determined and affected partly by the
policies and directions being adopted and implemented by government today. And in part by the this Resolution rendered
by this Court today.
Verily, the mineral wealth and natural resources of this country are meant to benefit not merely a select group of
people living in the areas locally affected by mining activities, but the entire Filipino nation, present and future, to whom
the mineral wealth really belong. This Court has therefore weighed carefully the rights and interests of all concerned,
and decided for the greater good of the greatest number. JUSTICE FOR ALL, not just for some; JUSTICE FOR THE
PRESENT AND THE FUTURE, not just for the here and now.
WHEREFORE, the Court RESOLVES to GRANT the respondents and the intervenors Motions for
Reconsideration; to REVERSE andSET ASIDE this Courts January 27, 2004 Decision; to DISMISS the Petition; and to
issue this new judgment declaring CONSTITUTIONAL (1) Republic Act No. 7942 (the Philippine Mining Law), (2) its
Implementing Rules and Regulations contained in DENR Administrative Order (DAO) No. 9640 -- insofar as they relate
to financial and technical assistance agreements referred to in paragraph 4 of Section 2 of Article XII of the Constitution;
and (3) the Financial and Technical Assistance Agreement (FTAA) dated March 30, 1995 executed by the government
and Western Mining Corporation Philippines Inc. (WMCP), except Sections 7.8 and 7.9 of the subject FTAA which are
hereby INVALIDATED for being contrary to public policy and for being grossly disadvantageous to the government.
SO ORDERED.


CASE DIGEST: (IDEALS VS PSALM)
IDEALS vs PSALM
GR 192088, Oct. 9, 2012

Facts: PSALM is a GOCC created by virtue of the EPIRA law. Said law mandated PSALM to manage privatization of
NPC. When PSALM commenced the privatization an invitation to bid was published and the highest bidder K-Water
was identified. The sale to K-Water was sought to be enjoined by petitioners who contend that PSALM gravely abused
its discretion when, in the conduct of the bidding it violated the peoples right to information without having
previously released to the public critical information about the sale.

Issue #1: Can the bid documents, etc. used in the on-going negotiation for the privatization and sale of Angat hydro
plant be accessed via the right to information?

Ruling: Yes. The court reiterated that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite propositions by the government
and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar
matters affecting national security and public order.

Issue #2: Is the duty to disclose information the same with the duty to permit access to information on matters of public
concern?

Ruling: No. Unlike the disclosure of information which is mandatory under the Constitution, the other aspect of the
peoples right to know requires a demand or request for one to gain access to documents and paper of the particular
agency. Moreover, the duty to disclose covers only transactions involving public interest, while the duty to allow access
has a broader scope of information which embraces not only transactions involving public interest, but any matter
contained in official communications and public documents of the government agency.