FREEDOM OF RELIGION

---------------------------------------------------------------------------------------------NON ESTABLISHMENT CLAUSE

---------------------------------------------------------------------------------------------FIRST DIVISION
[G.R. NO. 45459. MARCH 13, 1937.]
GREGORIO AGLIPAY, PETITIONER, V. JUAN
RUIZ, RESPONDENT.
VICENTE SOTTO FOR PETITIONER.
SOLICITOR-GENERAL TUASON FOR RESPONDENT.
SYLLABUS
1. PROHIBITION; ISSUANCE OF WRIT FOR ACTS
PERFORMED WITHOUT JURISDICTION. While, generally,
prohibition as an extraordinary legal writ will not issue to restrain
or control the performance of other than judicial or quasi-judicial
function (50 C. J., 658), its issuance and enforcement are regulated
by statute and in this jurisdiction may issue to." . . inferior
tribunals, corporations, boards, or persons, whether exercising
functions judicial or ministerial, which are without or in excess of
the jurisdiction of such tribunal, corporation, board, or person . . . ."
(Secs. 516 and 226, Code of Civil Procedure.)
2. ID.; ID.; DIRECTOR OF POSTS. The term "judicial" and
"ministerial" used with reference to "functions" in the statute are
undoubtedly comprehensive and include the challenge act of the
respondent Director of Posts in the present case, which act because
alleged to be violative of the Constitution is a fortiori "without or in
excess of . . . jurisdiction."cralaw virtua1aw library
3. ID.; ID.; WRIT NOT CONFINED EXCLUSIVELY TO COURTS
OR TRIBUNALS. The statutory rule, therefore, in this
jurisdiction is that the writ of prohibition is not confined exclusively
to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases,
to an officer or person whose acts are without or in excess of his
authority. Not infrequently, "the writ is granted, where it is
necessary for the orderly administration of justice, or the prevent
the use of the strong arm of the law in an oppressive or vindictive
manner, or a multiplicity of actions." (Dimayuga and Fajardo v.
Fernandez [1922], 43 Phil., 304, 307.)
4. CONSTITUTION OF THE PHILIPPINES; RELIGIOUS
FREEDOM. What is guaranteed by our Constitution is religious
liberty, not mere religious toleration. Religious freedom, however,
as a constitutional mandate is not 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.
5. ID.; ID.; POSTAGE STAMPS ISSUED UNDER ACT No. 4052.
The respondent Director of Posts issued the postage stamps in
question under the provision of Act No. 4052 of the Philippine

Legislature which appropriates the sum of sixty thousand pesos for

the cost of plates and printing of postage stamps with new designs
and other expenses incident thereto, and authorizes the Director of
Posts, with the approval of the Secretary of Public Works and
Communications, to dispose of the amount appropriated in the
manner indicated and "as often as may be deemed advantageous to
the Government."cralaw virtua1aw library
6. ID.; ID.; ID. Act No. 4052 contemplates no religious purpose in
view. What it gives the Director of Posts is the discretionary power
to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase"
"advantageous to the Government" does not authorize the violation
of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or
support of a particular sect or church. In the present case, however,
the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was
not inspired by any sectarian feeling to favor a particular church or
religious denominations. The stamps were not issued and sold for
the benefit of the Roman Catholic Church. Nor were money derived
from the sale of the stamps given to that church.
7. ID.; ID.; ID. The only purpose in issuing and selling the
stamps was "to advertise the Philippines and attract more tourists
to this country." The officials concerned merely took advantage of
an event considered of international importance "to give publicity to
the Philippines and its people." The stamps as actually designed
and printed (Exhibit 2), instead of showing a Catholic Church
chalice as originally planned, contains a map of the Philippines and
the location of the City of Manila, and an inscription as follows:
"Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937."
What is emphasized is not the Eucharistic Congress itself but
Manila, the capital of the Philippines, as the seat of that congress.
8. ID.; ID.; ID. 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. 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 v. Roberts, 175
U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the
Philippine Independent Church, seeks the issuance from this court
of a writ of prohibition to prevent the respondent Director of Posts
from issuing and selling postage stamps commemorative of the
Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of
Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirtythird international Eucharistic Congress, organized by the Roman
Catholic Church. The petitioner, in the fulfillment of what he
considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of
the Philippines. In spite of the protest of the petitioner's attorney,
the respondent publicly announced having sent to the United
States the designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as
border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are
for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually
issued and sold though the greater part thereof, to this day,
remains unsold. The further sale of the stamps is sought to be
prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not
the proper legal remedy in the instant case, although he admits
that the writ may properly restrain ministerial functions. While,
generally, prohibition as an extraordinary legal writ will not issue
to restrain or control the performance of other than judicial or
quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may
issue to . . . inferior tribunals, corporations, boards, or persons,
whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation,
board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.)
The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and
include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the
Constitution is a fortiorari "without or in excess of . . . jurisdiction."
The statutory rule, therefore, in the jurisdiction is that the writ of
prohibition is not confined exclusively to courts or tribunals to keep
them within the limits of their own jurisdiction and to prevent
them from encroaching upon the jurisdiction of other tribunals, but
will issue, in appropriate cases, to an officer or person whose acts
are without or in excess of his authority. Not infrequently, "the writ
is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an
oppressive or vindictive manner, or a multiplicity of actions."
(Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation
of the Constitution by the respondent in issuing and selling postage
stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the
respondent is violative of the provisions of section 23, subsection 3,
Article VI, of the Constitution of the Philippines, which provides as
follows:
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, secretarian,
institution, or system of religion, or for the use, benefit, or
support of any priest, preacher, minister, 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.
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 ocassions might arise when the
estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of
church and state in the early stages of our constitutional
development; it was inserted in the Treaty of Paris between the
United States and Spain of December 10, 1898, reiterated in
President McKinley's Instructions of the Philippine Commission,

reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of

August 29, 1916, and finally embodied in the constitution of the
Philippines as the supreme expression of the Filipino people. 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 religious toleration.
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not 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 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. Our Constitution and laws exempt from
taxation properties devoted exclusively to religious purposes (sec.
14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344,
par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is
assigned to the armed forces or to any penal institution, orphanage
or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the
Philippines). Optional religious instruction in the public schools is
by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of
the Philippines, in relation to sec. 928, Adm. Code). Thursday and
Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of
the secular idea that their observance is conclusive to beneficial
moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are
considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts
issued the postage stamps in question under the provisions of Act
No. 4052 of the Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF
SIXTY THOUSAND PESOS AND MAKING THE SAME
AVAILABLE OUT OF ANY FUNDS IN THE INSULAR
TREASURY NOT OTHERWISE APPROPRIATED FOR
THE COST OF PLATES AND PRINTING OF POSTAGE
STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of
the Philippines in Legislature assembled and by the
authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby
appropriated and made immediately available out of any funds in

the Insular Treasury not otherwise appropriated, for the costs of

plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of
Public Works and Communications, is hereby authorized to dispose
of the whole or any portion of the amount herein appropriated in
the manner indicated and as often as may be deemed advantageous
to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended
shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand
pesos for the costs of plates and printing of postage stamps with
new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public
Works and Communications, to dispose of the amount appropriated
in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the
postage stamps in question appears to have been approved by
authority of the President of the Philippines in a letter dated
September 1, 1936, made part of the respondent's memorandum as
Exhibit A. The respondent alleges that the Government of the
Philippines would suffer losses if the writ prayed for is granted. He
estimates the revenue to be derived from the sale of the postage
stamps in question at P1,618,17.10 and states that there still
remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it
gives the Director of Posts is the discretionary power to determine
when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the violation
of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or
support of a particular sect or church. In the present case, however,
the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was
not inspired by any sectarian denomination. The stamps were not
issue and sold for the benefit of the Roman Catholic Church. Nor
were money derived from the sale of the stamps given to that
church. On the contrary, it appears from the latter of the Director
of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps
was "to advertise the Philippines and attract more tourist to this
country." The officials concerned merely, took advantage of an
event considered of international importance "to give publicity to
the Philippines and its people" (Letter of the Undersecretary of
Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is
significant to note that the stamps as actually designed and printed
(Exhibit 2), instead of showing a Catholic Church chalice as
originally planned, contains a map of the Philippines and the
location of the City of Manila, and an inscription as follows: "Seat
XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is
emphasized is not the Eucharistic Congress itself but Manila, the
capital of the Philippines, as the seat of that congress. 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 embarassed 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 subordinate to mere
incidental results not contemplated. (Vide Bradfield vs. Roberts,
175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for
the petitioner to maintain inviolate the complete separation of
church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene
of religious intolerance and prescription, care should be taken that
at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect or
institution. But, upon very serious reflection, examination of Act
No. 4052, and scrutiny of the attending circumstances, we have
come to the conclusion that there has been no constitutional
infraction in the case at bar, Act No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and
Communications, discretion to misuse postage stamps with new
designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made
use of a poor judgment in issuing and selling the postage stamps in
question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the
unconstitutionality of the step taken, a gap exists which is yet to be
filled to justify the court in setting aside the official act assailed as
coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without
pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and
Concepcion, JJ., concur.

REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC
G.R. NO. L-53487 MAY 25, 1981
ANDRES GARCES, REVEREND FATHER SERGIO
MARILAO OSMEA, NICETAS DAGAR AND JESUS
EDULLANTES, PETITIONERS,
VS.
HON. NUMERIANO G. ESTENZO, PRESIDING JUDGE OF
THE COURT OF FIRST INSTANCE OF LEYTE, ORMOC
CITY BRANCH V, BARANGAY COUNCIL OF VALENCIA,
ORMOC CITY, BARANGAY CAPTAIN MANUEL C. VELOSO,
COUNCILMEN GAUDENCIO LAVEZARES, TOMAS
CABATINGAN AND MAXIMINO NAVARRO, BARANGAY
SECRETARY CONCHITA MARAYA AND BARANGAY
TREASURER LUCENA BALTAZAR, RESPONDENTS.
SYNOPSIS
A wooden image of San Vicente Ferrer was acquired by the
barangay council with funds raised by means of solicitations and
cash donations pursuant to Resolution No. 5 of said council, duly

ratified by the barangay assembly in a plebiscite, reviving the

traditional socio-religious celebration of the feast day of the saint.
The image was brought to the Catholic parish church during the
saints feast day as per Resolution No. 6 which also designated the
hermano mayor as the custodian of the image. After the fiesta,
however, petitioner parish priest refused to return custody of the
image to the council until after the latter, by resolution, filed a
replevin case against the priest and posted the required bond. The
parish priest and his co-petitioners thereafter filed an action for
annulment of the councils resolutions relating to the subject image
contending that when they were adopted, the barangay council was
not duly constituted because the chairman of the Kabataang
Barangay was not allowed to participate; and that they
contravened the constitutional provisions on separation of church
and state. freedom of religion and the use of public money to favor
any sect or church. The lower court dismissed the complaint and
upheld the validity of the resolution.
On petition for review, the Supreme Court held, that the absence of
the Kabataang Barangay chairman, despite due notice from the
sessions of the barangay council, did not render the resolutions
then adopted void since there was a quorum; and that the
questioned resolutions did not contravene any constitutional
provision since the image was purchased with private funds, not
with tax money, and in connection with a socio-religious affair, the
celebration of which is an ingrained tradition in rural communities.
Judgment of the lower court affirmed.
SYLLABUS
1. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES
AND STATE POLICIES; LOCAL AUTONOMY; BARANGAY;
BARANGAY COUNCIL; COMPOSITION THEREOF. The barrio
council, now barangay council, is composed of the barangay captain
and six councilmen (Sec. 7, Revised Barrio Charter, R.A. No. 3590).
Section 3 of Presidential Decree No. 684, which took effect on April
15, 1975, provides that "the barangay youth chairman shall be exofficio member of the barangay council", having the same powers
and functions as a barangay councilman.
2. ID.; ID.; ID.; ID.; ID.; ABSENCE IN SESSION OF DULY
NOTIFIED MEMBER DOES NOT RENDER RESOLUTION
ADOPTED DURING SAID SESSION VOID IF THERE WAS A
QUORUM. In the case at bar, the absence of the barangay youth
chairman from the sessions of the barangay council when the
questioned resolutions were adopted, did not render said
resolutions void, because there was a quorum and he was duly
notified of said sessions.
3. ID.; SEPARATION OF CHURCH AND STATE; BARANGAY
COUNCILS RESOLUTION PROVIDING FOR PURCHASE OF
SAINTS IMAGE WITH PRIVATE FUNDS IN CONNECTION
WITH BARANGAY FIESTA, CONSTITUTIONAL. Resolution
No. 5 of the barangay council of Valenzuela, Ormoc City, "reviving
the traditional socio-religious celebration" every fifth day of April
"of the feast day of Seor San Vicente Ferrer, the patron saint of
Valenzuela", and providing for: (I) the acquisition of the image of
San Vicente Ferrer; and (2) the construction of a waiting shed as
the barangays projects, funds for which would be obtained through
the "selling of tickets and cash donations", does not directly or
indirectly establish any religion, nor abridge religious liberty, nor
appropriate money for the benefit of any sect, priest or clergyman.
The image was purchased with private funds, not with tax money.
The construction of the waiting shed is entirely a secular matter.
The wooden image 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 beliefs of the barrio residents. One of the
highlights of the fiesta was the mass. Consequently, the image of
the patron saint had to be placed in the church when the mass was
celebrated. If there is nothing unconstitutional or illegal in holding
a fiesta and having a patron saint for the barrio, then any activity
intended to facilitate the worship of the patron saint (such as the
acquisition and display of his image) cannot be branded as illegal.
As noted in the resolution, the barrio fiesta is a socio-religious
affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of the
lives of the masses.
4.
ID.;
ID.;
BARANGAY
COUNCILS
RESOLUTION
DESIGNATING CUSTODIAN OF SAINTS IMAGE WHICH WAS
BOUGHT
WITH
COUNCILS
PRIVATE
FUNDS
IN
CONNECTION
WITH
BARRIO
FIESTA,
VALID
AND
CONSTITUTIONAL. Resolution No. 6 of the Barangay Council
of Valenzuela, Ormoc City, adopted in connection with Resolution
No. 5 (providing for the purchase of an image of San Vicente Ferrer
with funds from solicitations and cash donations) and which
specified that, in accordance with the practice in Eastern Leyte, the
chairman or hermano mayor of the fiesta, would be the caretaker of
the image of San Vicente Ferrer and that the image would remain
in his residence for one year and until the election of his successor
as chairman of the next fiesta, and that the image would be made
available to the Catholic parish church during the celebration of the
saints feast day, does not involve at all, even remotely or indirectly,
the momentous issues of separation of church and state, freedom of
religion and the use of public money to favor any sect or church,
contrary to the contradictory positions of the petitioners
petitioner Garces swearing that the said resolutions favored the
Catholic Church, and petitioners Dagar and Edullantes swearing
that the resolutions prejudiced the Catholics because they could sec
the image in the church only once a year during the fiesta. There
can be no question that the image in question belongs to the
barangay council. Father Osmeas claim that it belongs to the
church is wrong. The barangay council, as owner of the image, has
the right to determine who should have custody thereof. The
barangay council designated a layman as the custodian of the
wooden image in order to forestall any suspicion that it is favoring
the Catholic church. A more practical reason for that arrangement
would be that the image, if placed in a laymans custody, could
easily be made available to any family desiring to borrow the image
in connection with prayers and novenas. If the council chooses to
change its mind and decides to give the image to the Catholic
church, that action would not violate the Constitution because the
image was acquired with private funds and is its private property.
5.
ID.;
ID.;
BARANGAY
COUNCILS
RESOLUTION
AUTHORIZING THE HIRING OF A LAWYER TO FILE
REPLEVIN CASE AND APPOINTING REPRESENTATIVE IN
SAID CASE; VALID. The barangay council of Valencia has the
right to take measures to recover possession of the image of San
Vicente Ferrer, which is its private property, from the parish priest
of Valenzuela by enacting Resolution No. 10, authorizing the hiring
of a lawyer to file a replevin case against Father Osmea for the
recovery of the image, as well as Resolution No. 12, appointing
Veloso as its representative in the replevin case.
6. ID.; ID.; NOT ALL GOVERNMENTAL ACTIVITY HAVING
RELIGIOUS TINT VIOLATIVE OF CONSTITUTION. 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. (Sec Aglipay v. Ruiz, 64 Phil. 201)
DECISION
AQUINO, J.:
This case is about the constitutionality of four resolutions of the
barangay council of Valencia, Ormoc City, regarding the acquisition
of the wooden image of San Vicente Ferrer to be used in the
celebration of his annual feast day. That issue was spawned by the
controversy as to whether the parish priest or a layman should
have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution
No. 5, "reviving the traditional socio-religious celebration" every
fifth day of April "of the feast day of Seor San Vicente Ferrer, the
patron saint of Valencia".
That resolution designated the members of nine committees who
would take charge of the 1976 festivity. lt provided for (1) the
acquisition of the image of San Vicente Ferrer and (2) the
construction of a waiting shed as the barangay's projects. Funds for
the two projects would be obtained through the selling of tickets
and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6
which specified that, in accordance with the practice in Eastern
Leyte, Councilman Tomas Cabatingan, the Chairman or hermano
mayor of the fiesta, would be the caretaker of the image of San
Vicente Ferrer and that the image would remain in his residence
for one year and until the election of his successor as chairman of
the next feast day.
It was further provided in the resolution that the image would be
made available to the Catholic parish church during the celebration
of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were
duly ratified by the barangay general assembly on March 26, 1976.
Two hundred seventy-two voters ratified the two resolutions (Exh.
2 and 5).
Funds were raised by means of solicitations0 and cash donations of
the barangay residents and those of the neighboring places of
Valencia. With those funds, the waiting shed was constructed and
the wooden image of San Vicente Ferrer was acquired in Cebu City
by the barangay council for four hundred pesos (Exh. F-l, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of
the Catholic church of Barangay Valencia so that the devotees
could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father
Sergio Marilao Osmea refused to return that image to the
barangay council on the pretext that it was the property of the
church because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of
his sermon during a mass, Father Osmea allegedly uttered
defamatory remarks against the barangay captain, Manuel C.
Veloso, apparently in connection with the disputed image. That
incident provoked Veloso to file against Father Osmea in the city
court of Ormoc City a charge for grave oral defamation.

Father Osmea retaliated by filing administrative complaints

against Veloso with the city mayor's office and the Department of
Local Government and Community Development on the grounds of
immorality, grave abuse of authority, acts unbecoming a public
official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the
Catholic church of Valencia. Because Father Osmea did not accede
to the request of Cabatingan to have custody of the image and
"maliciously ignored" the council's Resolution No. 6, the council
enacted on May 12, 1976 Resolution No. 10, authorizing the hiring
of a lawyer to file a replevin case against Father Osmea for the
recovery of the image (Exh. C or 8). On June 14, 1976, the barangay
council passed Resolution No. 12, appointing Veloso as its
representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against
Father Osmea and Bishop Cipriano Urgel (Exh. F). After the
barangay council had posted a cash bond of eight hundred pesos,
Father Osmea turned over the image to the council (p. 10, Rollo).
ln his answer to the complaint for replevin, he assailed the
constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the
Aglipayan Church, and two Catholic laymen, Jesus Edullantes and
Nicetas Dagar, filed against the barangay council and its members
(excluding two members) a complaint in the Court of First Instance
at Ormoc City, praying for the annulment of the said resolutions
(Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of
the resolutions. The petitioners appealed under Republic Act No.
5440. The petitioners contend that the barangay council was not
duly constituted because lsidoro M. Maago, Jr., the chairman of
the kabataang barangay, was not allowed to participate in its
sessions.
Barangays used to be known as citizens assemblies (Presidential
Decrees Nos. 86 and 86-A). Presidential Decree No. 557, which took
effect on September 21, 1974, 70 O.G. 8450-L, directed that all
barrios should be known as barangays and adopted the Revised
Barrio Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which
they are situated. They are quasi-municipal corporations endowed
with such powers" as are provided by law "for the performance of
particular government functions, to be exercised by and through
their respective barrio governments in conformity with law" (Sec. 2,
Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the
barrio for at least six months, eighteen years of age or over and
Filipino citizens duly registered in the list kept by the barrio
secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the
barangay captain and six councilmen (Sec. 7, Ibid). Section 3 of
Presidential Decree No. 684, which took effect on April 15, 1975,
provides that "the barangay youth chairman shall be an exofficio member of the barangay council", having the same powers
and functions as a barangay councilman.
In this case, Maago, the barangay youth chairman, was notified of
the sessions of the barangay council to be held on March 23 and 26,

1976 but he was not able to attend those sessions because he was
working with a construction company based at Ipil, Ormoc City
(Par. 2[d] Exh. 1).
Maago's absence from the sessions of the barangay council did not
render the said resolutions void. There was a quorum when the said
resolutions were passed.
The other contention of the petitioners is that the resolutions
contravene the constitutional provisions that "no law shall be made
respecting an establishment of religion" and that "no public money
or property shall ever be appropriated, applied, paid, 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 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 (Sec. 8, Article IV and sec. 18[2], Article VIII,
Constitution).
That contention is glaringly devoid of merit. The questioned
resolutions do not directly or indirectly establish any religion, nor
abridge religious liberty, nor appropriate public money or property
for the benefit of any sect, priest or clergyman. The image was
purchased with private funds, not with tax money. The construction
of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the
barangay council favored the Catholic religion by using the funds
raised by solicitations and donations for the purchase of the patron
saint's wooden image and making the image available to the
Catholic church.
The preposterousness of that argument is rendered more evident by
the fact that counsel advanced that argument in behalf of the
petitioner, Father Osmea the parish priest.
The wooden image 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. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in the
church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio, then any activity intended to
facilitate the worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious
affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of the
lives of the masses.
The barangay council designated a layman as the custodian of the
wooden image in order to forestall any suspicion that it is favoring
the Catholic church. A more practical reason for that arrangement
would be that the image, if placed in a layman's custody, could
easily be made available to any family desiring to borrow the image
in connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their

affidavits. Petitioner Garces swore that the said resolutions favored
the Catholic church. On the other hand, petitioners Dagar and
Edullantes
swore
that
the
resolutions prejudiced
the
Catholics because they could see the image in the church only once
a year or during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and
state, freedom of religion annd the use of public money to favor any
sect or church are not involved at all in this case even remotely or
indirectly. lt is not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt
would never have arisen if the parties had been more diplomatic
and tactful and if Father Osmea had taken the trouble of causing
contributions to be solicited from his own parishioners for the
purchase of another image of San Vicente Ferrer to be installed in
his church.
There can be no question that the image in question belongs to the
barangay council. Father Osmea claim that it belongs to his
church is wrong. The barangay council, as owner of the image, has
the right to determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the
Catholic church. that action would not violate the Constitution
because the image was acquired with private funds and is its
private property.
The council has the right to take measures to recover possession of
the image by enacting Resolutions Nos. 10 and 12.
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.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No.
4052 which appropriated sixty thousand pesos for the cost of plates
and the printing of postage stamps with new designs. Under the
law, the Director of Posts, with the approval of the Department
Head and the President of the Philippines, issued in 1936 postage
stamps to commemorate the celebration in Manila of the 33rd
International Eucharistic Congress sponsored by the Catholic
Church.
The purpose of the stamps was to raise revenue and advertise the
Philippines. The design of the stamps showed a map of the
Philippines and nothing about the Catholic Church. No religious
purpose was intended.
Monsignor Gregorio Aglipay, the founder and head of the
Philippine Independent Church, sought to enjoin the sale of those
commemorative postage stamps.
It was held that the issuance of the stamps, while linked
inseparably with an event of a religious character, was not designed
as a propaganda for the Catholic Church. Aglipay's prohibition suit
was dismissed.
The instant case is easily distinguishable from Verzosa vs.
Fernandez, 49 Phil., 627 and 55 Phil. 307, where a religious

brotherhood, La Archicofradia del Santisimo Sacramento, organized

for the purpose of raising funds to meet the expenses for the annual
fiesta in honor of the Most Holy Sacrament and the Virgin Lady of
Guadalupe, was held accountable for the funds which it held as
trustee. 0
Finding that the petitioners have no cause of action for the
annulment of the barangay resolutions, the lower court's judgment
dismissing their amended petition is affirmed. No costs.
SO ORDERED.
Fernando C.J., Barredo, Makasiar, Guerrero, De Castro and
Melencio-Herrera, JJ., concur.1wph1.t
Teehankee, J., concur in the result.
Fernandez, J., Concepcion Jr. J., are on leave.

SCHOOL DISTRICT OF ABINGTON TOWNSHIP

V.
SCHEMPP,
legal case in which the U.S. Supreme Court on June 17, 1963, ruled
(81)
that
legally
or
officially
mandated Bible reading
orprayer in public schools is unconstitutional. Whether required by
state laws or by rules adopted by local school boards, such
practices, the court held, violate the establishment clause of
the First Amendment, which prohibits Congress from making any
law respecting an establishment of religion. (The various
provisions of the First Amendment, including the establishment
clause, were gradually incorporated, or made binding on the states,
by the Supreme Court in the first half of the 20th century through
the due process clause of the Fourteenth Amendment.)
Background
The case arose in 1958, when Edward Lewis Schempp, his wife, and
two of their children, who attended public schools in Pennsylvania,
filed suit in U.S. district court in Philadelphia, alleging that their
religious rights under the First Amendment had been violated by a
state law that required public schools to begin each school day with
a reading of at least 10 passages from the Bible. The Schempps,
who were Unitarians, claimed that the law was an unconstitutional
establishment of religion and that it interfered with the free
exercise of their religious faith, in violation of the First
Amendments free-exercise clause (Congress shall make no
lawprohibiting the free exercise of [religion]). They asked the
court for declaratory and injunctive relief (i.e., to declare the law
unconstitutional and to issue an injunction against its enforcement)
and to strike down the school districts additional requirement that
students recite the Lords Prayer at the beginning of each school
day.
After the district court found in favour of the Schempps, the school
district and the states superintendent of schools appealed to the
Supreme Court. Before the case was heard, however, the
Pennsylvania General Assembly amended the law to permit
students to be excused from Bible readings upon the written
request of a parent. The Supreme Court then vacated and
remanded the district courts judgment for further consideration in
light of the amended law. After the district court held that the law
remained in violation of the establishment clause, the Supreme
Court agreed to hear a new appeal, consolidating it with a similar

case that had arisen in Baltimore, Maryland, Murray v. Curlett, in

which the lower court had found that Bible reading in public
schools is constitutional. Oral arguments were heard on February
2728, 1963.
Majority opinion
In an opinion for an 81 majority written by Justice Tom C. Clark,
the court noted and reaffirmed the Supreme Courts incorporation
of the establishment clause in Cantwell v.Connecticut (1940). It also
endorsed the view, supported in numerous precedents, that the
establishment clause was not intended merely to prohibit Congress
from aiding or preferring one religion at the expense of others but
also to ensure that it does not promote all religions, or religion
generally. The court noted with approval the dissenting opinion of
Justice Robert H. Jackson in the Supreme Courts decision
in Everson v. Board of Education of the Township of Ewing (1947),
in which he wrote that the effect of the religious freedom
Amendment to our Constitution was to take every form of
propagation of religion out of the realm of things which could
directly or indirectly be made public business, and thereby be
supported in whole or in part at taxpayers expense. The court
likewise cited Justice Wiley B. Rutledges dissent in Everson,
according to which the [First] Amendments purpose was not to
strike merely at the official establishment of a single sect, creed or
religion[but] to create a complete and permanent separation of
the spheres of religious activity and civil authority by
comprehensively forbidding every form of public aid or support for
religion. Those principles, the court noted in Schempp, have been
long established, recognized and consistently reaffirmed.
However, just as the government may not promote any or all
religions, it is also prohibited from inhibiting or interfering with
religion, as the free-exercise clause of the First Amendment
establishes. The court again cited Rutledges dissent in Everson,
among other precedents, to support that point: Our constitutional
policydoes not deny the value or the necessity for religious
training, teaching or observance. Taken together, therefore, the
two religion clauses of the First Amendment require the state to be
neutral not only as between different groups of religious believers
but also as between religious believers and nonbelievers.
On the basis of that conclusion, the court in Schempp devised a test
to determine whether a given statute is in violation of the
establishment clause:
The test may be stated as follows: what are the purpose and the
primary effect of the enactment? If either is the advancement or
inhibition of religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution. That is to
say that, to withstand the strictures of the Establishment Clause,
there must be a secular legislative purpose and a primary effect that
neither advances nor inhibits religion.
That test foreshadowed the Supreme Courts Lemon test for
consistency with the establishment clause, which it fashioned in
1971 in Lemon v. Kurtzman.
Examining the circumstances of the Bible readings and prayers in
the schools in Pennsylvania and Maryland, the court found that
they constituted religious exercises and were therefore
unconstitutional under the establishment clause. The court
dismissed as unconvincing the argument that the exercises and the
laws requiring them served the secular purpose of nonreligious
moral inspiration. Nor was it pertinent that students could be
excused from the exercises upon the request of a parent, for that
fact furnishes no defense to a claim of unconstitutionality under the
Establishment Clause, as the Supreme Court had held
in Engel v. Vitale (1962). Finally, the court denied that its finding
amounted to an establishment of a religion of secularism or that

by failing to uphold the exercises it was interfering in the freeexercise rights of religious students and their parents. While the
Free Exercise Clause clearly prohibits the use of state action to
deny the rights of free exercise to anyone, the court declared, it
has never meant that a majority could use the machinery of the
State to practice its beliefs.
Concurring opinions were filed by Justice Arthur J. Goldberg,
joined by Justice John Marshall Harlan, and by Justices William J.
Brennan, Jr., and William O. Douglas. JusticePotter Stewart filed a
dissenting opinion in which he argued that the record before the
court was insufficiently developed to allow it to conclude that the
students were coerced into participating in the exercises in
violation of the establishment clause.

Everson v. Board of Education (1947)

Background Information
Under a New Jersey statute that allowed local school districts to
fund the transportation of children to and from schools, the Board
of Education of Ewing Township authorized reimbursement to
parents forced to bus their children to school using regular public
transportation. Part of this money was to pay for the transportation
of some children to Catholic parochial schools and not just public
schools.
A local taxpayer filed suit, challenging the right of the Board to
reimburse parents of parochial school students. He argued that the
statute violated both the State and the Federal Constitutions. This
court agreed and ruled hat the legislature did not have the
authority to provide such reimbursements.
Court Decision
The Supreme Court ruled against the plaintiff, holding that the
government was allowed to reimburse the parents of parochial
school children for the costs incurred by sending them to school on
public busses.
As the Court noted, the legal challenged was based on two
arguments: First, the law authorized the state to take money from
some people and give it to others for their own private purposes, a
violation of the Due Process Clause of the Fourteenth Amendment.
Second, the law forced taxpayers to support religious education at
Catholic schools, thus resulting in using State power to support
religion - a violation of the First Amendment.
The Court rejected both arguments. The first argument was
rejected on the grounds that the tax was for a public purpose educating children - and so the fact that it coincided with someone's
personal desires does not render a law unconstitutional. When
reviewing the second argument, the majority decision,
referencing Reynolds v. United States:
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 to 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 nonattendance. 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 from 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.'
Amazingly, even after admitting this, the Court failed to find any
such violation in collecting taxes for the purpose of sending children
to a religious school. According to the Court, providing for
transportation is analogous to providing police protection along the
same transportation routes - it benefits everyone, and therefore
should not be refused to some because of the religious nature of
their end destination.
Justice Jackson, in his dissent, noted the inconsistency between the
strong affirmation of the separation of church and state and the
final conclusions reached. According to Jackson, the Court's
decision required making both unsupported assumptions of fact and
ignoring actual facts which were supported.
In the first place, the Court assumed that this was part of a general
program to help parents of any religion get their children safely and
quickly to and from accredited schools, but Jackson noted that this
was not true:
The Township of Ewing is not furnishing transportation to the
children in any form; it is not operating school busses itself or
contracting for their operation; and it is not performing any public
service of any kind with this taxpayer's money. All school children
are left to ride as ordinary paying passengers on the regular busses
operated by the public transportation system. What the Township
does, and what the taxpayer complains of, is at stated intervals to
reimburse parents for the fares paid, provided the children attend
either public schools or Catholic Church schools. This expenditure
of tax funds has no possible effect on the child's safety or expedition
in transit. As passengers on the public busses they travel as fast
and no faster, and are as safe and no safer, since their parents are
reimbursed as before.
In the second place, the Court ignored the actual facts of religious
discrimination which was occurring:
The resolution which authorizes disbursement of this taxpayer's
money limits reimbursement to those who attend public schools and
Catholic schools. That is the way the Act is applied to this taxpayer.
The New Jersey Act in question makes the character of the school,
not the needs of the children determine the eligibility of parents to
reimbursement. The Act permits payment for transportation to
parochial schools or public schools but prohibits it to private schools
operated in whole or in part for profit. ...If all children of the state
were objects of impartial solicitude, no reason is obvious for denying
transportation reimbursement to students of this class, for these
often are as needy and as worthy as those who go to public or
parochial schools. Refusal to reimburse those who attend such
schools is understandable only in the light of a purpose to aid the

schools, because the state might well abstain from aiding a profitmaking private enterprise.
As Jackson noted, the only reason for refusing to help children
going to for-profit private schools is a desire not to aid those schools
in their ventures - but this automatically means that giving
reimbursements to children going to parochial schools means that
the government is helping them.
Significance
This case reinforced the precedent of government money financing
portions of religious, sectarian education by having those funds
applied to activities other than direct religious education.

BOARD OF EDUCATION V. ALLEN (1968)

Background Information
New York's Education Law required local public school authorities
to lend textbooks free of charge to all students in grades 7 to 12,
eveb those attending private schools.
Some local school boards challenged this regulation, arguing that it
violated both State and Federal constitutions. The boards asked for
an an order barring the Commissioner of Education (Allen) from
removing boardmembers from office for failing to comply with the
regulation, and an order that stopped any use of state funds to buy
textbooks that would be lent to parochial students.
A trial court found in favor of the school boards, an appellate court
reversed this decision, and the New York Court of Appeals agreed
that the regulation was constitutional.
Court Decision
The Supreme Court gave six reasons why the law in question did
not violate the Establishment Clause:
The primary purpose of the statute was to advance
education in general, not advance religious education in
particular.
There was no evidence of specifically religious books being
loaned.
Parochial schools also perform the task of secular
education, and so helping them does not automatically
help religion.
There is no evidence of unconstitutional state involvement
with religion.
There is no evidence of anyone being coerced into the
practice of religion.

merely makes available to all children the benefits of a general

program to lend school books free of charge. Books are furnished at
the request of the pupil and ownership remains, at least
technically, in the State. Thus no funds or books are furnished to
parochial schools, and the financial benefit is to parents and
children, not to schools.
Justice Black strongly dissented from this decision, arguing that
Court precedent makes it plain that no taxpayer should be
compelled to pay money to the government for the purpose of
supporting either religion generally or agencies of any religious
organization:
The Everson and McCollum cases plainly interpret the First and
Fourteenth Amendments as protecting the taxpayers of a State
from being compelled to pay taxes to their government to support
the agencies of private religious organizations the taxpayers
oppose. To authorize a State to tax its residents for such church
purposes is to put the State squarely in the religious activities of
certain religious groups that happen to be strong enough politically
to write their own religious preferences and prejudices into the
laws. This links state and churches together in controlling the lives
and destinies of our citizenship - a citizenship composed of people of
myriad religious faiths, some of them bitterly hostile to and
completely intolerant of the others. It was to escape laws precisely
like this that a large part of the Nation's early immigrants fled to
this country. It was also to escape such laws and such consequences
that the First Amendment was written in language strong and
clear barring passage of any law "respecting an establishment of
religion."
Black also disagreed with the finding that providing books to school
children was in any way analogous to providing bus fare for them,
thus denying that Everson v. Board of Educationconstitutes a
precedent which allows for the current decision. For Black, bus
fares are incidental to education while books are essential to it.
The First Amendment's bar to establishment of religion must
preclude a State from using funds levied from all of its citizens to
purchase books for use by sectarian schools, which, although
"secular," realistically will in some way inevitably tend to
propagate the religious views of the favored sect. Books are the
most essential tool of education since they contain the resources of
knowledge which the educational process is designed to exploit. In
this sense it is not difficult to distinguish books, which are the
heart of any school, from bus fares, which provide a convenient and
helpful general public transportation service. With respect to the
former, state financial support actively and directly assists the
teaching and propagation of sectarian religious viewpoints in clear
conflict with the First Amendment's establishment bar; with
respect to the latter, the State merely provides a general and
nondiscriminatory transportation service in no way related to
substantive religious views and beliefs.

The focus of the Court decision was mostly the fact that the law had
a secular purpose:

Justice Douglas, in his own dissent, made the same point,

emphasizing the risks inherent to the body politic when religious
groups have their ideology funded by the government:

The express purpose of 701 was stated by the New York Legislature
to be furtherance of the educational opportunities available to the
young. Appellants have shown us nothing about the necessary
effects of the statute that is contrary to its stated purpose. The law

Whatever may be said of Everson, there is nothing ideological about

a bus. There is nothing ideological about a school lunch, or a public
nurse, or a scholarship. The constitutionality of such public aid to
students in parochial schools turns on considerations not present in

this textbook case. The textbook goes to the very heart of education
in a parochial school. It is the chief, although not solitary,
instrumentality for propagating a particular religious creed or
faith. How can we possibly approve such state aid to a religion? A
parochial school textbook may contain many, many more seeds of
creed and dogma than a prayer. Yet we struck down in Engel v.
Vitale, an official New York prayer for its public schools, even
though it was not plainly denominational. For we emphasized the
violence done the Establishment Clause when the power was given
religious-political groups "to write their own prayers into law." That
risk is compounded here by giving parochial schools the initiative in
selecting the textbooks they desire to be furnished at public
expense.
Black concluded his dissent by arguing that, in order for the
separation of church and state to have force and meaning, it must
not be whittled away bit by bit as he saw happening with this
decision. He found substantial social value in maintaining the wall
of separation, because it prevents minority religions from being
discriminated against by a religious majority.
I still subscribe to the belief that tax-raised funds cannot
constitutionally be used to support religious schools, buy their
school books, erect their buildings, pay their teachers, or pay any
other of their maintenance expenses, even to the extent of one
penny. The First Amendment's prohibition against governmental
establishment of religion was written on the assumption that state
aid to religion and religious schools generates discord, disharmony,
hatred, and strife among our people, and that any government that
supplies such aids is to that extent a tyranny. And I still believe
that the only way to protect minority religious groups from majority
groups in this country is to keep the wall of separation between
church and state high and impregnable as the First and Fourteenth
Amendments provide. The Court's affirmance here bodes nothing
but evil to religious peace in this country.

The Lemon decision usually refers to a combination of two cases,

both concerned with State statutes allowing some support of
private, religious education. The issue of assistance to private,
religious schools had been considered in Everson v. Board of
Education, 1947, when the Court found it constitutional for States
to assist student transportation to religious schools. In Walz v. Tax
Commission, 1970, the Court established a new precedent that
discouraged "excessive entanglement" between church and state.
Circumstances of the Case
In Lemon v. Kurtzman the Court considered a Pennsylvania law
that allowed the State superintendent of schools to "purchase"
certain educational services from parochial schools. The State
reimbursed the parochial schools for books, materials, and teachers'
salaries as long as the courses taught were "secular" and the books
were approved by the superintendent. A group of Pennsylvania
residents, including Lemon, sought an injunction against
Kurtzman, the superintendent of public instruction for the State of
Pennsylvania, in a Pennsylvania federal court. The court upheld
the Pennsylvania law as being legal and constitutional under the
1st Amendment. Lemon and the group appealed.
In the second case, Earley v. DiCenso, 1971, a Rhode Island State
law established a fund to pay a 15 percent salary supplement to
teachers in parochial schools under certain specific conditions. The
schools could not exceed the per-pupil expenditures for secular
subjects taught in public schools. The teachers whose salaries were
being supplemented had to teach secular subjects as they were
taught in public schools. They had to use the same books and
materials, and they could not give religious instruction. The
supplement was paid to about 250 teachers in Roman Catholic
schools. Rhode Island taxpayers (DiCenso) brought suit against the
State's Department of Education (Earley) in a federal court. The
court found the Rhode Island law a violation of the separation of
church and state as defined by the Supreme Court. Rhode Island
appealed.

Significance
Constitutional Issues
This case reinforced the precedent of government money financing
portions of religious, sectarian education by having those funds
applied to activities other than direct religious education.

LEMON V. KURTZMAN, 1971

The Court considered once again some familiar questions on

church-state relations. Did State assistance to private, religious
schools violate the Establishment Clause of the 1st Amendment?
On the other hand, did withholding State assistance to private,
religious schools violate the 1st Amendment's Free Exercise
Clause?

Historical Background

Arguments

Throughout the 1960s and 1970s, the Supreme Court frequently

considered cases involving the separation of church and state. As
noted in Walz v. Tax Commission, 1970, the Court created
precedents that at times appeared contradictory, but that aimed to
uphold a "constitutional neutrality." As chief Justice Burger put it
in his majority opinion in Walz, 1970, "[let] no religion be sponsored
nor favored, none commanded, and none inhibited." Burger
conceded that the evolution of the neutrality standard had not
proceeded in "an absolutely straight line." Fearing too powerful a
precedent, the Court avoided "rigidity" and tried instead to
formulate "general principles on a case-by-base basis." With the
case ofLemon v. Kurtzman, the Court would attempt to codify the
principles on which these matters would be judged in the future.

For Lemon and DiCenso: The assistance to private, Roman

Catholic schools favors one religion over others. It constitutes
"sponsorship" of the Catholic Church, which is prohibited by the
Establishment Clause of the 1st Amendment. The Walz decision set
a precedent barring "excessive entanglement" of the State in
religious affairs. The Pennsylvania and Rhode Island statutes
created such an "entanglement" by involving the State in decisions
about class content and teaching as well as in the auditing and
bookkeeping of the parochial schools.
For Kurtzman and Earley: Withholding State assistance to these
schools just because they are religious would interfere with the free
exercise of religion as practiced in parochial schools, and as upheld
by the Court itself in Everson, 1947. The State statutes in question
clearly define the qualifications for aid. They do not allow parochial

schools to be favored over public schools, but they do allow those

schools to be more equal.
Decision and Rationale
By votes of 80 and 81, the Court overwhelmingly found both
State laws in violation of the Establishment Clause in that they
provided State aid to parochial schools. The majority opinion,
written by Chief Justice Warren Burger, relied heavily on
precedent, especially the "excessive entanglement" criterion spelled
out in Walz, 1970. "In the absence of precisely stated constitutional
prohibitions," Burger wrote, "we must draw lines with reference to
the three main evils against which the Establishment Clause was
intended to afford protection: 'sponsorship, financial support, and
active involvement of the sovereign in religious activity.'"
Burger then spelled out a three-part test for judging the
constitutionality of State aid to religious education. First, a statute
must "have a secular legislative purpose." Second, "its principal or
primary effect must be one that neither advances nor inhibits
religion; finally the statute must not foster 'excessive government
entanglement with religion.'"
The Court concluded that "the cumulative impact of the entire
relationship arising under the statutes in each state
involves excessive entanglement between government and religion,"
so the statutes failed part three of the Lemon test.
Burger very carefully detailed the specific "entanglements" the
court discerned before it rejected these statutes. In order to
determine whether Rhode Island parochial school teachers met the
conditions for receiving the salary supplement, State
administrators would have to observe classes, making sure that the
teaching was in no way "religious." The State would also have to
audit financial records to determine that per-pupil costs were not
higher than those in public schools.
Burger cited with foreboding the "self-perpetuating and selfexpanding propensities" of "modern governmental programs." He
feared that given these propensities, the programs under question
might eventually present a real danger of State control over
religion. He wrote that certain steps, "which when taken were
thought to approach 'the verge' [of excessive government
involvement], have become the platform for further steps. A certain
momentum develops in constitutional theory and it can be a
'downhill thrust' easily set in motion but difficult to retard or stop."
To prevent government's sliding in that direction, the Court drew
the line of "excessive entanglement" to exclude the types of aid the
contested statutes provided.

Tilton v. Richardson
Tilton v. Richardson is a landmark 1971 decision of the U.S.
Supreme Court upholding a congressional grant program that made
federal funds available to private religious colleges for constructing
buildings. In light of Tiltons having expanded the limits of
governmental aid to religiously affiliated colleges and universities,
this entry reviews the Courts rationale and considers the cases
implications.
Facts of the Case

Tilton involved a challenge by taxpayers to Title I of the Higher

Education Facilities Act of 1963, which made available grants to
colleges and universities, including those that are religiously
affiliated, in order to construct buildings and facilities that are used
exclusively for secular educational purposes. The taxpayers
objected to grants to four institutions in Connecticut, all of which
were religiously affiliated, claiming that the law granting the funds
to the institutions violated the taxpayers rights under both the
Establishment and Free Exercise Clauses of the First Amendment.
A three-judge federal trial court in Connecticut upheld the act in
the face of the Establishment Clause claim on the bases that it
authorized grants to church-related institutions of higher learning
and that it had neither the purpose nor effect of promoting religion.
The court also held that because the grants did not coerce the
taxpayers in the practice of their religious beliefs, it did not violate
their rights under the Free Exercise Clause. Dissatisfied with the
outcome, the taxpayers appealed to the Supreme Court.
The Supreme Courts Ruling
On further review, a sharply divided Supreme Court, in a case in
which no opinion commanded a majority, upheld the
constitutionality of the act. The Court found that the act violated
neither the Establishment nor the Free Exercise Clause. A fourjustice bloc, led by Chief Justice Burger and joined by Justices
Harlan, Stewart, and Blackmun, formed the plurality that
announced the judgment of the Court. A fifth member of the Court,
Justice White, concurred in the result, but not necessarily in the
pluralitys reasoning.
Chief Justice Burger, as author of the plurality opinion, began by
defining the scope of the act. The plurality pointed out that
Congress intended the act to apply to all colleges and universities,
regardless of whether they were religiously affiliated. The plurality
then applied the three-part test that it articulated in Lemon v.
Kurtzman (1971), which has become the judicial standard in
controversies involving religion in both K12 and higher
educational settings. The judgments in both Tilton and Lemon were
handed down on the same day.
In applying the Lemon test, the plurality was satisfied that
Congress had a secular purpose in enacting the statute. The
plurality explained that the act was constitutional because
Congress carefully designed it to ensure both that funds would be
available to assist institutions to serve the rapidly growing number
of young people who wished to achieve a higher education and that
the federal resources would be used for defined secular purposes,
while expressly forbidding the use of these monies for religious
instruction, training, or worship. In its analysis, the plurality added
that none of the four institutions violated the acts restrictions.
The plurality next determined that the act did not advance religion.
In doing so, the plurality stressed that the money was not being
used for facilities for religious purposes. Rather, the plurality
acknowledged that the funds were being used to construct facilities
such as libraries and performing arts centers. While upholding the
statute as applied, the plurality explicitly invalidated a portion of
the law that allowed buildings constructed with government funds
to be used for religious purposes after a period of 20 years had
expired, because this section unconstitutionally allowed a
contribution of property of substantial value to religious bodies.
Finally, stressing the fundamental differences between K12
education and higher education, the plurality posited that the act
did not create excessive entanglement with religion. The plurality
distinguished Tilton from Lemon, wherein the Court invalidated

aid in the form of salary supplements to teachers in religiously

affiliated nonpublic schools. The Court observed that the cases were
significantly different, because in Tilton, religious indoctrination
was not a substantial purpose or activity in the four institutions
insofar as their student bodies were not composed of impressionable
young people, the assistance was not ideological, and the one-time
grants were for the single purpose of construction.
Having resolved that the act did not violate the Establishment
Clause, the plurality quickly dismissed the Free Exercise challenge.
The plurality rejected the taxpayers argument that by being
compelled to pay taxes, a portion of which were used to finance the
disputed grants, the taxpayers were experiencing coercion that was
directed at their own religious beliefs. The plurality remarked that
the grants were indistinguishable from other types of aid that the
Supreme Court has permitted.
Justice White, who provided the crucial fifth vote, concurred. White
declared that because states and the federal government had the
authority to finance the separable secular function of higher
education, the act passed constitutional muster. He also
commented that even though religion and private interests other
than education might substantially benefit from the act, these
benefits did not convert the act into an impermissible
establishment of religion.
Justice Douglas, along with Justices Black and Marshall, joined in
a common dissent. The dissenters emphasized their belief that any
aid to religiously affiliated institutions was unconstitutional. A
fourth Justice, Brennan, dissented in Tilton while expressing his
support for Lemon.
Impact of Tilton

Tilton is significant for higher education in three respects. First,

Tilton stands for the proposition that the government may provide
money directly to religiously affiliated colleges and universities
without violating the Establishment or Free Exercise Clauses. As
such, Tilton removed any doubt that there are circumstances under
which the government may provide aid directly to religiously
affiliated institutions. Second, the Court drew a constitutional
distinction between pervasively sectarian activities such as
religious instruction, training, and worship, on the one hand, and
activities that would take place at any university, such as using
libraries, laboratories, or residence halls, on the other. In fact, the
Court invalidated a portion of the law that allowed the buildings to
be used for religious purposes after 20 years. Third, in recognizing
fundamental distinctions between education at the K12 level and
higher education, the Court upheld aid where sufficient safeguards
were in place to avoid First Amendment concerns.
In the almost 40 years since Tilton, insofar as the Supreme Court
has not overruled or limited its original judgment, the principle
that religiously affiliated institutions may receive government
assistance for nonreligious activities remains intact. Yet, while the
Court has never repudiated the distinction between pervasively
sectarian and secular activities, recent cases seem to blur the
distinction.

COUNTY
OF
ALLEGHENY
PITTSBURGH CHAPTER (1989)

V.

ACLU

GREATER

Background Information
This case looked at the constitutionality of two holiday displays in
downtown Pittsburgh. One was a creche standing on the "grand
staircase" of the Allegheny County Courthouse, a very prominent
position in the courthouse and readily visible by all who entered.
The creche included figures of Joseph, Mary, Jesus, animals,
shepherds, and an angel bearing a huge banner with the words
"Gloria in Excelsis Deo!" ("Glory to God in the Highest")
emblazoned upon it. Next to it was a sign stating "This Display
Donated by the Holy Name Society" (a Catholic organization).
The other display was a block away in a building jointly owned by
both the city and the county. It was an 18-foot tall Hanukkah
menorah donated by a group of Lubavitcher Hasidim (an ultraorthodox branch of Judaism). With the menorah was a 45-foot tall
Christmas tree, at the base of which was a sign stating "Salute to
Liberty."
Some local residents, supported by the ACLU, filed suit claiming
that both displays violated the Establishment Clause. A Court of
Appeals agreed and ruled that both displays violated of the First
Amendment because they endorsed religion.
Court Decision
Arguments were made on February 22, 1989. On July 3, 1989, the
court ruled 5 to 4 (to strike) and 6 to 3 (to uphold). This was a
deeply and unusually fragmented Court Decision, but in the final
analysis the Court ruled that while the creche was
unconstitutional, the menorah display was not.
Although in Lynch v. Donnelly the Court used the three-part
Lemon test to allow a city in Rhode Island to display a creche as
part of a holiday display, the same did not hold here because the
Pittsburgh display was not used in conjunction with seasonal
decorations. Lynch had established what came to be called the
"plastic reindeer rule" of secular context which the creche failed.
Due to this independence along with the prominent place which the
creche occupied (thus signaling government endorsement), the
display was determined by Justice Blackmun in his plurality
opinion to have a specific religious purpose. The fact that the creche
was created by a private organization did not eliminate the
apparent endorsement by the government of the display. Moreover,
the placement of the display in such a prominent position
emphasized the message of supporting religion.The creche scene
stood on the grand staircase of a courthouse alone. The Supreme
Court said:
...the creche sits on the Grand Staircase, the "main" and "most
beautiful part" of the building that is the seat of county
government. No viewer could reasonably think that it occupies this
location without the support and approval of the government.
Thus, by permitting the display of the creche in this particular
physical setting, the county sends an unmistakable message that it
supports and promotes the Christian praise to God that is the
creche's religious message... The Establishment Clause does not

limit only the religious content of the government's own

communications. It also prohibits the government's support and
promotion of religious communications by religious organizations.
Unlike the creche, however, the menorah on display was not
determined to have an exclusively religious message. The menorah
was placed next to "a Christmas tree and a sign saluting liberty"
which the Court found important. Instead of endorsing any
religious group, this display with the menorah recognized the
holidays as "part of the same winter-holiday season". Thus, the
display in its entirety did not appear to endorse or disapprove of
any religion, and the menorah was permitted to remain. With
regards to the menorah, the Supreme Court said:
...it is not "sufficiently likely" that residents of Pittsburgh will
perceive the combined display of the tree, the sign, and the
menorah as an "endorsement" or "disapproval ...of their individual
religious choices." While an adjudication of the display's effect must
taken into account the perspective of one who is neither Christian
nor Jewish, as well as of those who adhere to either of these
religions, ibid., the constitutionality of its effect must also be judged
according to the standard of a "reasonable observer." ...When
measured against this standard, the menorah need not be excluded
from this particular display.
The Christmas tree alone in the Pittsburgh location does not
endorse Christian belief; and, on the facts before us, the addition of
the menorah "cannot fairly be understood to" result in the
simultaneous endorsement of Christian and Jewish faiths. On the
contrary, for purposes of the Establishment Clause, the city's
overall display must be understood as conveying the city's secular
recognition of different traditions for celebrating the winter-holiday
season.
This was a curious conclusion because the Chabad, the Hasidic sect
which owned the menorah, celebrated Chanukah as a religious
holiday and advocated the display of their menorah as part of their
mission of proselytizing. Also, there was a clear record of lighting
the menorah in religious ceremonies - but this was ignored by the
Court because the ACLU failed to bring it up. It is also interesting
that Blackmun went to some length to argue that the menorah
should be interpreted in light of the tree rather than the other way
around. No real justification is offered for this perspective, and it is
interesting to wonder what the decision would have been had the
menorah been larger than the tree, rather than the actual situation
where the tree was the larger of the two.
In a sharply worded dissent, Justice Kennedy denounced the
Lemon test used to evaluate the religious displays and argued that
"...any test which might invalidate longstanding traditions cannot
be a proper reading of the [Establishment] Clause." In other words,
tradition - even if it includes government endorsement and support
of sectarian religious messages - must trump evolving
understandings of religious freedom. Justice O'Connor, in her
concurring opinion, responded:
Justice Kennedy submits that the endorsement test is inconsistent
with our precedents and traditions because, in his words, if it were
"applied without artificial exceptions for historical practice," it
would invalidate many traditional practices recognizing the role of
religion in our society."

This criticism shortchanges both the endorsement test itself and

my explanation of the reason why certain long standing
government acknowledgments of religion do not, under that test,
convey a message of endorsement. Practices such as legislative
prayers or opening Court sessions with "God save the United States
and this honorable Court" serve the secular purposes of
"solemnizing public occasions" and "expressing confidence in the
future."
These examples of ceremonial deism do not survive Establishment
Clause scrutiny simply by virtue of their historical longevity alone.
Historical acceptance of a practice does not in itself validate that
practice under the Establishment Clause if the practice violates the
values protected by that Clause, just as historical acceptance of
racial or gender based discrimination does not immunize such
practices from scrutiny under the Fourteenth Amendment.
Justice Kennedy's dissent also argued that prohibiting the
government from celebrating Christmas as a religious holiday is,
itself, a discrimination against Christians. In response to this,
Blackmun wrote in the majority opinion that:
Celebrating Christmas as a religious, as opposed to a secular,
holiday, necessarily entails professing, proclaiming, or believing
that Jesus of Nazareth, born in a manager in Bethlehem, is the
Christ, the Messiah. If the government celebrates Christmas as a
religious holiday (for example, by issuing an official proclamation
saying: "We rejoice in the glory of Christ's birth!"), it means that
the government really is declaring Jesus to be the Messiah, a
specifically Christian belief.
In contrast, confining the government's own celebration of
Christmas to the holiday's secular aspects does not favor the
religious beliefs of non-Christians over those of Christians. Rather,
it simply permits the government to acknowledge the holiday
without expressing an allegiance to Christian beliefs, an allegiance
that would truly favor Christians over non-Christians. To be sure,
some Christians may wish to see the government proclaim its
allegiance to Christianity in a religious celebration of Christmas,
but the Constitution does not permit the gratification of that desire,
which would contradict the "`the logic of secular liberty'" it is the
purpose of the Establishment Clause to protect.
Significance
Although it seemed to do otherwise, this decision basically
permitted the existence of competing religious symbols, conveying a
message of accommodation of religious plurality. While a single
symbol standing alone might be unconstitutional, its inclusion with
other secular/seasonal decorations may offset an apparent
endorsement of a religious message.
As a result, communities who desire holiday decorations must now
create a display that does not send the message of endorsing
a particular religion to the exclusion of others. Displays must
contain a variety of symbols and be inclusive of differing
perspectives.
Perhaps equally important for future cases, however, was the fact
that the four dissenters inAllegheny County would have upheld
both the creche and menorah displays under a more relaxed,

deferential standard. This position has gained a great deal of

ground over the past decade.
In addition, Kennedy's Orwellian position that a failure to celebrate
Christmas as a Christian holiday qualifies as discrimination
against Christians has also become popular - it is, effectively, the
logical conclusion of the accommodationist position that an absence
of government support of religion is the same as government
hostility towards religion. Naturally, such discrimination is only
relevant when it comes to Christianity; the government fails to
celebrate Ramadan as a religious holiday, but people like Kennedy
are entirely unconcerned by that because Muslims are a minority.

Zobrest v. Catalina Foothills School District (1993)

Background Information
The parents of James Zobrest, a deaf child attending a parochial
school, sued their local public school district because it failed to
provide a sign language interpreter for their son in his Catholic
school as they had when he attended a public middle school.
The parents aruged that the Individuals with Disabilities
Education Act and the First Amendment's free exercise clause
obliged the school to provide this service regardless of what school
their son attended.
Court Decision
In 1993, the Supreme Court decided 5-4 that the school district was
required to offer the Zobrest family the sign language interpreter
they wanted.
The primary result of the ruling in Zobrest was that the
government is not permitted to place a ban on all public employees
in sectarian schools. In his majority opinion, Chief Justice
Rehnquist argued that programs which neutrally offer assistance to
a class of citizens are not unconstitutional simply because the
beneficiary is one instance happens to be religious - otherwise, that
would constitute anti-religious discrimination.
In this case, the parochial school was not relieved of any financial
burden that it otherwise would have to bear (as it would be in the
case of purchasing textbooks or other supplies for religious schools
so that they would not have to buy them). The sign language
interpreter who actually received the public funding did not add to
or take away from the religious environment in which James
Zobrest's education took place; therefore, funding the interpreter
was religiously neutral.
So the Court concluded:
When the government offers a neutral service on the premises of a
sectarian school as part of a general program that "is in no way
skewed toward religion," it follows under our prior decisions that
provision of that service does not offend the Establishment Clause.

Significance
This Court's decision allowed the government to pay public
employees to work in parochial schools so long as their presence
had no impact upon the religious environemnt itself. The job
performed by the interpreter was not religious even though the
person would be translating religiously based information. The
Supreme Court also found that this assistance did not relieve the
religious school of a burden that it otherwise would have borne
independently.
This Court Decision was instrumental in Sandra Day O'Connor's
ruling in the Agnostini v. Felton, in which the Court allowed public
school teachers to tutor private school students in their private
schools, even if the schools were primarily religious in nature.
On a personal note, I'd like to add that I find it odd that parents
who choose to reject the services of a public school should want to
take with them some of those services. If a school is incapable of
providing a proper education for their child, why would they choose
to pay extramoney to send their child there?

Capitol Sq. Review Bd. v. Pinette (1995)

Background Information
Ohio law makes Capitol Square, the Statehouse plaza in Columbus,
a forum for public activities and for discussion of public questions,
and gives the Capitol Square Review and Advisory Board
responsibility for regulating access to the square.
To use the square, a group must simply fill out an official
application form and meet several speech-neutral criteria. After the
Board denied, on Establishment Clause grounds, the application of
the Ku Klux Klan to place an unattended cross on the square
during the 1993 Christmas season, the Klan filed suit.
Court Decision
The Court decided 7-2 that the actions of the Board were
inappropriate and that the application of the KKK should have
been accepted. According to the majority, the cross should be
permitted because it is erected by a private entity rather than by
the government, and so a reasonable observer would not infer that
the government was endorsing the cross' message.
According to the Court, religious expression cannot violate the
Establishment Clause when it (1) is purely private and (2) occurs in
a traditional or designated public forum, publicly announced and
open to all on equal terms. Those conditions were satisfied in this
case, and therefore the government was not allowed to bar the
Klan's cross. The Court did, however, accept that the government
take extra steps to ensure that particular speech was identified as
private - for example, by prohibiting unattended displays
completely.

Justice Stevens rejected the arguments of the majority, pointing out

the purely sectarian displays should never be acceptable actions for
the government to endorse on public property:
The Establishment Clause should be construed to create a strong
presumption against the installation of unattended religious
symbols on public property. Although the State of Ohio has allowed
Capitol Square, the area around the seat of its government, to be
used as a public forum, and although it has occasionally allowed
private groups to erect other sectarian displays there, neither fact
provides a sufficient basis for rebutting that presumption. On the
contrary, the sequence of sectarian displays disclosed by the record
in this case illustrates the importance of rebuilding the "wall of
separation between church and State" that Jefferson envisioned.
He emphasized the fact that the symbol of the cross, unadorned and
unattended, sends a wide variety of possible religious messages to
people passing by - and that the government is not permitted to
send such messages at all.

Because structures on government property - and, in particular, in

front of buildings plainly identified with the state - imply state
approval of their message, the Government must have considerable
leeway, outside of the religious arena, to choose what kinds of
displays it will allow and what kinds it will not. Although the First
Amendment requires the Government to allow leafletting or
demonstrating outside its buildings, the state has greater power to
exclude unattended symbols when they convey a type of message
with which the state does not wish to be identified.
Stevens supported his argument by pointing out that the Klan's
application had been motivated by the earlier appearance of a
large, unattended menorah during Chanukah. The appearance of
this Jewish symbol gave the reasonable impression of government
endorsement, and so the Klan sought similar endorsement of their
own anti-semitic symbol. Had the symbols appeared on private
property, the same reactions would not have occurred. One of the
purposes of the Establishment Clause it to prevent exactly this the government getting involved in religious strife.
Significance

Thus, while this unattended, freestanding wooden cross was

unquestionably a religious symbol, observers may well have
received completely different messages from that symbol. Some
might have perceived it as a message of love, others as a message of
hate, still others as a message of exclusion - a Statehouse sign
calling powerfully to mind their outsider status. In any event, it
was a message that the State of Ohio may not communicate to its
citizens without violating the Establishment Clause.
Quoting the decision in City of Ladue v. Gilleo, Stevens also
emphasized the fact that the location of as sign or symbol is a vital
component of the message it conveys, and that therefore the fact
that the cross was erected on public property and stands
unattended is important.
"Displaying a sign from one's own residence often carries a message
quite distinct from placing the same sign someplace else, or
conveying the same text or picture by other means. Precisely
because of their location, such signs provide information about the
identity of the `speaker.' As an early and eminent student of
rhetoric observed, the identity of the speaker is an important
component of many attempts to persuade. A sign advocating `Peace
in the Gulf' in the front lawn of a retired general or decorated war
veteran may provoke a different reaction than the same sign in a
10-year-old child's bedroom window or the same message on a
bumper sticker of a passing automobile. An espousal of socialism
may carry different implications when displayed on the grounds of
a stately mansion than when pasted on a factory wall or an
ambulatory sandwich board."
Because of this, Stevens concluded that unattended structures on
government property give reasonable observers the impression that
the messages are endorsed by the government. What this means is
that the government must not only have considerable leeway in
deciding what sort of structures may be erected, but that the
government is required to forbid structures sending messages
which the government itself is prohibited from sending.

The holding in this decision allows for unattended religious

displays to be erected on public property, but more significantly
makes the "reasonable observer" test very lax. There seems to be
little that they would expect a "reasonable observer" to interpret as
government endorsement of religion.

[G.R. No. 153888. July 9, 2003]

ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC.,
herein represented by PROF. ABDULRAFIH H.
SAYEDY,
petitioner,
vs.
OFFICE
OF
THE
EXECUTIVE SECRETARY of the Office of the
President of the Philippines, herein represented by
HON. ALBERTO G. ROMULO, Executive Secretary,
and the OFFICE ON MUSLIM AFFAIRS, herein
represented by its Executive Director, HABIB
MUJAHAB HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner
Islamic Dawah Council of the Philippines, Inc. (IDCP) praying for
the declaration of nullity of Executive Order (EO) 46, s. 2001 and
the prohibition of herein respondents Office of the Executive
Secretary and Office of Muslim Affairs (OMA) from implementing
the subject EO.
Petitioner IDCP, a corporation that operates under
Department of Social Welfare and Development License No. SB-01085, is a non-governmental organization that extends voluntary
services to the Filipino people, especially to Muslim
communities. It claims to be a federation of national Islamic
organizations and an active member of international organizations
such as the Regional Islamic Dawah Council of Southeast Asia and
the Pacific (RISEAP)[1] and The World Assembly of Muslim
Youth. The
RISEAP
accredited
petitioner
to
issue
halal[2] certifications in the Philippines. Thus, among the functions
petitioner carries out is to conduct seminars, orient manufacturers

on halal food and issue halal certifications to qualified products and

manufacturers.
Petitioner alleges that, on account of the actual need to certify
food products as halal and also due to halal food producers request,
petitioner formulated in 1995 internal rules and procedures based
on the Quran[3] and the Sunnah[4] for the analysis of food,
inspection thereof and issuance of halal certifications. In that same
year, petitioner began to issue, for a fee, certifications to qualified
products and food manufacturers. Petitioner even adopted for use
on its halal certificates a distinct sign or logo registered in the
Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive
Secretary issued EO 46[5] creating the Philippine Halal
Certification Scheme and designating respondent OMA to oversee
its implementation. Under the EO, respondent OMA has the
exclusive authority to issue halal certificates and perform other
related regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs
Issuing Illegal Halal Certification was published in the Manila
Bulletin, a newspaper of general circulation. In said article, OMA
warned Muslim consumers to buy only products with its official
halal certification since those without said certification had not
been subjected to careful analysis and therefore could contain pork
or its derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only
from OMA lest they violate EO 46 and RA 4109. [6] As a result,
petitioner lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the
constitutional provision on the separation of Church and State. [7] It
is unconstitutional for the government to formulate policies and
guidelines on the halal certification scheme because said scheme is
a function only religious organizations, entity or scholars can
lawfully and validly perform for the Muslims. According to
petitioner, a food product becomes halal only after the performance
of Islamic religious ritual and prayer. Thus, only practicing
Muslims are qualified to slaughter animals for food. A government
agency like herein respondent OMA cannot therefore perform a
religious function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated
Section 10, Article III of the 1987 Constitution which provides that
(n)o law impairing the obligation of contracts, shall be passed.
After the subject EO was implemented, food manufacturers with
existing contracts with petitioner ceased to obtain certifications
from the latter.
Moreover, petitioner argues that the subject EO violates
Sections 15 and 16 of Article XIII of the 1987 Constitution which
respectively provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with
identifiable leadership, membership, and structure.

Sec. 16. The rights of the people and their organizations to effective
and reasonable participation at all levels of social, political, and
economic decision-making shall not be abridged. The State shall,
by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter
haste and without even consulting Muslim peoples organizations
like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697
(EO 697) to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs,
customs, traditions, and institutions.[8] OMA deals with the
societal, legal, political and economic concerns of the Muslim
community as a national cultural community and not as a
religious group. Thus, bearing in mind the constitutional barrier
between the Church and State, the latter must make sure that
OMA does not intrude into purely religious matters lest it violate
the non-establishment clause and the free exercise of religion
provision found in Article III, Section 5 of the 1987 Constitution.[9]
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]
Without doubt, classifying a food product as halal is a
religious function because the standards used are drawn from the
Quran and Islamic beliefs. By giving OMA the exclusive power to
classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret
for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its
own interpretation of the Quran and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity,
the Solicitor General argues that the freedom of religion is
subservient to the police power of the State. By delegating to OMA
the authority to issue halal certifications, the government allegedly
seeks to protect and promote the muslim Filipinos right to health,
and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement
of religious freedom.[11] If the government fails to show the
seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the
government to deprive Muslim organizations, like herein petitioner,
of their religious right to classify a product as halal, even on the
premise that the health of Muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal
certifications. The protection and promotion of the Muslim
Filipinos right to health are already provided for in existing laws
and ministered to by government agencies charged with ensuring
that food products released in the market are fit for human

consumption, properly labeled and safe. Unlike EO 46, these laws

do not encroach on the religious freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the
National Meat Inspection Commission (NMIC) of the Department
of Agriculture (DOA) the power to inspect slaughtered animals
intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as
The Consumer Act of 1992, gives to certain government
departments the duty to protect the interests of the consumer,
promote his general welfare and to establish standards of conduct
for business and industry.[12] To this end, a food product, before its
distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department
inspects and certifies its compliance with quality and safety
standards.[13]
One such government agency designated by RA 7394 is the
Bureau of Food and Drugs (BFD) of the Department of Health
(DOH). Under Article 22 of said law, BFD has the duty to
promulgate and enforce rules and regulations fixing and
establishing a reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers for food. The
BFD also ensures that food products released in the market are not
adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of
Trade and Industry (DTI) is tasked to protect the consumer against
deceptive, unfair and unconscionable sales acts or practices as
defined in Article 50.[15] DTI also enforces compulsory labeling and
fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of
such products.[16]
With these regulatory bodies given detailed functions on how
to screen and check the quality and safety of food products, the
perceived danger against the health of Muslim and non-Muslim
Filipinos alike is totally avoided. Of great help are the provisions on
labeling of food products (Articles 74 to 85)[17] of RA 7394. In fact,
through these labeling provisions, the State ably informs the
consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the
State indirectly aids Muslim consumers in differentiating food from
non-food products. The NMIC guarantees that the meat sold in the
market
has
been
thoroughly
inspected
and
fit
for
consumption. Meanwhile, BFD ensures that food products are
properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the
DTI, Muslim consumers are adequately apprised of the products
that contain substances or ingredients that, according to their
Islamic beliefs, are not fit for human intake. These are the nonsecular steps put in place by the State to ensure that the Muslim
consumers right to health is protected. The halal certifications
issued by petitioner and similar organizations come forward as
the official religious approval of a food product fit for Muslim
consumption.
We do not share respondents apprehension that the absence
of a central administrative body to regulate halal certifications
might give rise to schemers who, for profit, will issue certifications
for products that are not actually halal. Aside from the fact that
Muslim consumers can actually verify through the labels whether a
product contains non-food substances, we believe that they are
discerning enough to know who the reliable and competent

certifying organizations in their community are. Before purchasing

a product, they can easily avert this perceived evil by a diligent
inquiry on the reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order
46, s. 2001, is hereby declared NULL AND VOID. Consequently,
respondents are prohibited from enforcing the same.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago,
Carpio,
Austria-Martinez,
Carpio-Morales,
Callejo,
Sr.,
Azcuna, and Tinga, JJ., concur.
Puno, J., concur with the opinion of J., Vitug.
Vitug, J., please see Separate Opinion.
Quisumbing, Sandoval-Gutierrez, J., on official leave

[1]

According to the petitioner, RISEAP is a federation of Muslim organizations in nonMuslim countries where Muslims are minorities in Asia and the Pacific.

[2]

Halal is a Muslim term that means lawful food, things, manners and actions allowed
by God for mankind and enjoined upon the believers (Petition, p. 6; Rollo, p.
8). It is a term that means to slaughter for food (WEBSTERS THIRD
INTERNATIONAL DICTIONARY, 1986 Ed., p. 1021).

[3]

The book composed of writings accepted by Muslims as revelations made to

Mohammad by Allah and the divinely authorized basis for the religious,
social, civil, commercial, military, and legal regulations of the Islamic world
(WEBSTERS THIRD INTERNATIONAL DICTIONARY, 1986 Ed., p.
1255).

[4]

The body of Islamic custom and practice based on Mohammads words and deeds
(WEBSTERS THIRD INTERNATIONAL DICTIONARY, 1986 Ed., p.
2292).
EXECUTIVE ORDER NO. 46

[5]

AUTHORIZING THE OFFICE ON MUSLIM AFFAIRS TO UNDERTAKE

PHILIPPINE HALAL CERTIFICATION
WHEREAS, it is the policy of the State to protect and promote the Filipino right to
health and instill health consciousness among them;
xxx

xxx

xxx

WHEREAS, the establishment of a Philippine Halal Certification Scheme for food and
non-food products will contribute toward:
The establishment of a national standards and certification scheme for halal food and
non-food products and a national standards and accreditation scheme for
establishments;
The opening of new markets and the development of strong consumer awareness of,
and confidence in, Philippine halal food and non-food products;
The development and promotion of Philippine industries through the increase in the
volume and value of Philippine halal food and non-food exports; and
The development of Philippine products which comply with halal standards established
in accordance with Shariah Law and which are highly competitive and
acceptable to the Muslim Market;
xxx

xxx

xxx

WHEREAS, the establishment of a Philippine Halal Certification Scheme is in

accordance with our countrys commitments to the World Trade
Organization (WTO), the Brunei-Indonesia-Malaysia-Philippines East
ASEAN Growth Area (BIMP-EAGA), the ASEAN Free Trade Area (AFTA),
The Asia Pacific Economic Cooperation (APEC), and the Association of
Southeast Asian Nations (ASEAN), specifically, the Consultative
Committee on Standards and Quality and the Senior Officials MeetingASEAN Ministers on Agriculture and Forestry (SOM-AMAF), and with the
efforts of SOM-AMAF to provide mechanisms for identifying halal food and
non-food products in order that ASEAN member countries may better
comply with international halal standards and processes;
NOW,

THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the

Philippines, by virtue of the powers vested in me by law and the
Constitution, do hereby order the following:

SECTION 1. Designation of the Office on Muslim Affairs to Undertake Philippine

Halal Certification and Regulatory Activities. The Office on Muslim

Affairs is hereby designated to undertake Philippine halal certification and

regulatory activities. The Office on Muslim Affairs shall oversee the
Philippine Halal Certification Scheme.
SECTION 2. Halal Certification and Regulatory Functions. The halal certification
and regulatory functions to be exercised by the Office on Muslim Affairs
shall involve the following powers and functions:

ARTICLE 50. Prohibition Against Deceptive Sales Acts or Practices. A deceptive

act or practice by a seller or supplier in connection with a consumer
transaction violates this Act whether it occurs before, during or after the
transaction. An act or practice shall be deemed deceptive whenever the
producer, manufacturer, supplier or seller, through concealment, false
representation or fraudulent manipulation, induces a consumer to enter
into a sales or lease transaction of any consumer product or service.

Formulate policies, guidelines and developmental goals within the context of the
Philippine Halal Certification Scheme;

Without limiting the scope of the above paragraph, the act or practice of a seller or
supplier is deceptive when it represents that:

Plan, facilitate, and supervise the implementation and monitoring of components and
developmental activities relating to the Philippine Halal Certification
Scheme;

a)

a consumer product or service has the sponsorship, approval, performance,

characteristics, ingredients, accessories, uses, or benefits it does not have;

b)

a consumer product or service is of a particular standard, quality, grade, style,

or model when in fact it is not;

c)

a consumer product is new, original or unused, when in fact, it is in a

deteriorated, altered, reconditioned, reclaimed or second-hand state;

d)

a consumer product or service is available to the consumer for a reason that is

different from the fact;

e)

a consumer product or service has been supplied in accordance with the

previous representation when in fact it is not;

Adopt measures to ensure the success of the Philippine Halal Certification Scheme.

f)

SECTION 3. Training and Research. A halal training and research facility to support
the Philippine Halal Certification Scheme shall be established. Said facility
shall be operated under the auspices of the Office on Muslim Affairs.

a consumer product or service can be supplied in a quantity greater than the

supplier intends;

g)

a service, or repair of a consumer product is needed when in fact it is not;

h)

a specific price advantage of a consumer product exists when in fact it does not;

i)

the sales act or practice involves or does not involve a warranty, a disclaimer of
warranties, particular warranty terms or other rights, remedies or
obligations if the indication is false; and

j)

the seller or supplier has a sponsorship, approval, or affiliation he does not

have.

Ensure strict implementation of and compliance with halal standards and guidelines;
Coordinate with appropriate agencies, both at local and international level as may be
required, to ensure the enforcement of the Philippine Halal Certification
Scheme and the acceptance of Philippine products certified under the
Philippine Halal Certification Scheme;

[15]

Issue Halal Certificates to applicants;

Validate whether imported halal products complied with halal standards; and

SECTION 4. Funding. Funds necessary for the initial halal certification and
regulatory functions of the Office on Muslim Affairs shall be sourced from
the Office of the President, upon submission by the Office on Muslim Affairs
of its work and financial plan. Subsequent annual funding requirement
shall be sourced from the General Appropriations Act and from the income
generated by the Office on Muslim Affairs.
SECTION 5. Rules and Regulations; Sanctions.- The Office on Muslim Affairs shall
formulate rules and regulations, and impose sanctions as may be allowed by
law to ensure compliance therewith, for the successful implementation of
the Philippine Halal Certification Scheme; Provided, that the Office on
Muslim Affairs shall consider the pertinent provisions of Republic Act No.
4109 in the formulation and eventual implementation of said rules and
regulations.
SECTION 6. Repealing Clause. All executive issuances, orders, rules and regulations
which are inconsistent with any provision of this Executive Order are
hereby revoked, amended or modified accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect fifteen (15) days after
its publication in two (2) newspapers of national circulation.
City of Manila, October 26, 2001.
By the President:
ALBERTO ROMULO (Sgd.)
Executive Secretary
[6]

[7]

An Act to Convert the Division of Standards Under the Bureau of Commerce into A
Bureau of Standards, to Provide for the Standardization and/or Inspection
of Products and Imports of the Philippines and for other Purposes.
Section 6, Article II of the 1987 Philippine Constitution provides that:

Sec. 6. The separation of the Church and State shall be inviolable.

[8]

Section 1, EO 697.

[9]

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.

[10]

Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 [1996] citing Victoriano vs.
Elizalde Rope Workers Union, 59 SCRA 54 [1974].

[16]

Article 74, RA 7394.

CHAPTER IV

[17]

LABELING AND FAIR PACKAGING

ARTICLE 74. Declaration of Policy. The State shall enforce compulsory labeling,
and fair packaging to enable the consumer to obtain accurate information
as to the nature, quality and quantity of the contents of consumer products
and to facilitate his comparison of the value of such products.
ARTICLE 75. Implementing Agency. The Department of Trade and Industry shall
enforce the provisions of this Chapter and its implementing rules and
regulations: Provided, That with respect to food, drugs, cosmetics, devices
and hazardous substances, it shall be enforced by the concerned
department.
ARTICLE 76. Prohibited Acts on Labeling and Packaging. It shall be unlawful for
any person, either as principal or agent, engaged in the labeling or
packaging of any consumer product, to display or distribute or to cause to be
displayed or distributed in commerce any consumer product whose package
or label does not conform to the provisions of this Chapter.
The prohibition in this Chapter shall not apply to persons engaged in the business of
wholesale or retail distributors of consumer products except to the extent
that such persons:
a)

are engaged in the packaging or labeling of such products;

b)

prescribe or specify by any means the manner in which such products are
packaged or labeled; or

c)

having knowledge, refuse to disclose the source of the mislabeled or

mispackaged products.

ARTICLE 77. Minimum Labeling Requirements for Consumer Products. All

consumer products domestically sold whether manufactured locally or
imported shall indicate the following in their respective labels of packaging:
a)

its correct and registered trade name or brand name;

[11]

Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72 [1974].

b)

its duly registered trademark;

[12]

Article 2, RA 7394.

c)

its duly registered business name;

[13]

Article 14, RA 7394.

d)

[14]

Article 23, RA 7394.

the address of the manufacturer, importer, repacker of the consumer product in

the Philippines;

e)

its general make or active ingredients;

f)

the net quality of contents, in terms of weight, measure or numerical count

rounded off to at least the nearest tenths in the metric system;

g)

country of manufacture, if imported; and

h)

if a consumer product is manufactured, refilled or repacked under license from

a principal, the label shall so state the fact.

The following may be required by the concerned department in accordance with the
rules and regulations they will promulgate under authority of this Act:
a)

whether it is flammable or inflammable;

b)

directions for use, if necessary;

c)

warning of toxicity;

d)

wattage, voltage or amperes; or

e)

process of manufacture used if necessary.

Any word, statement or other information required by or under authority of the

preceding paragraph shall appear on the label or labeling with such
conspicuousness as compared with other words, statements, designs or
devices therein, and in such terms as to render it likely to be read and
understood by the ordinary individual under customary conditions of
purchase or use.

ARTICLE 81. Price Tag Requirement. It shall be unlawful to offer any consumer
product for retail sale to the public without an appropriate price tag, label
or marking publicly displayed to indicate the price of each article and said
products shall not be sold at a price higher than that stated therein and
without discrimination to all buyers: Provided, That lumber sold, displayed
or offered for sale to the public shall be tagged or labeled by indicating
thereon the price and the corresponding official name of the
wood: Provided, further, That if consumer products for sale are too small or
the nature of which makes it impractical to place a price tag thereon price
list placed at the nearest point where the products are displayed indicating
the retail price of the same may suffice.
ARTICLE 82. Manner of Placing Price Tags. Price tags, labels or markings must be
written clearly, indicating the price of the consumer product per unit in
pesos and centavos.
ARTICLE 83. Regulations for Price Tag Placement. The concerned department
shall prescribe rules and regulations for the visible placement of price tags
for specific consumer products and services. There shall be no erasures or
alterations of any sort of price tags, labels or markings.
ARTICLE 84. Additional Labeling Requirements for Food. The following additional
labeling requirements shall be imposed by the concerned department for
food:
a)

expiry or expiration date, where applicable;

The above requirements shall form an integral part of the label without danger of
being erased or detached under ordinary handling of the product.

b)

whether the consumer product is semi-processed, fully processed, ready-to-cook,

ready-to-eat, prepared food or just plain mixture;

ARTICLE 78. Philippine Product Standard Mark. The label may contain the
Philippine Product Standard Mark if it is certified to have passed the
consumer product standard prescribed by the concerned department.

c)

nutritive value, if any;

d)

whether the ingredients used are natural or synthetic, as the case may be;

e)

such other labeling requirements as the concerned department may deem

necessary and reasonable.

ARTICLE 79. Authority of the Concerned Department to Provide for Additional

Labeling and Packaging Requirements. Whenever the concerned
department determines that regulations containing requirements other
than those prescribed in Article 77 hereof are necessary to prevent the
deception of the consumer or to facilitate value comparisons as to any
consumer product, it may issue such rules and regulations to:
a)

establish and define standards for characterization of the size of a package

enclosing any consumer product which may be used to supplement the label
statement of net quality, of contents of packages containing such products
but this clause shall not be construed as authorizing any limitation on the
size, shape, weight, dimensions, or number of packages which may be used
to enclose any product;

b)

regulate the placement upon any package containing any product or upon any
label affixed to such product of any printed matter stating or representing
by implication that such product is offered for retail at a price lower than
the ordinary and customary retail price or that a price advantage is
accorded to purchases thereof by reason of the size of the package or the
quantity of its contents;

c)

prevent the nonfunctional slack-fill of packages containing consumer products.

For purposes of paragraph (c) of this Article, a package shall be deemed to be

nonfunctionally slack-filled if it is filled to substantially less than its
capacity for reasons other than (1) protection of the contents of such
package, (2) the requirements of machines used for enclosing the contents
in such package, or (3) inherent characteristics of package materials or
construction being used.
ARTICLE 80. Special Packaging of Consumer Products for the Protection of Children.
The concerned department may establish standards for the special
packaging of any consumer product if it finds that:
a)

the degree or nature of the hazard to children in the availability of such

product, by reason of its packaging, is such that special packaging is
required to protect children from serious personal injury or serious illness
resulting from handling and use of such product; and

b)

the special packaging to be required by such standard is technically feasible,

practicable and appropriate for such product. In establishing a standard
under this Article, the concerned department shall consider:

1)

the reasonableness of such standard;

2)

available scientific, medical and engineering data concerning special packaging

and concerning accidental, ingestions, illnesses and injuries
caused by
consumer product;

3)

the manufacturing practices of industries affected by this Article; and

4)

the nature and use of consumer products.

ARTICLE 85. Mislabeled Food. A food shall also be deemed mislabeled:

a)

if its labeling or advertising is false or misleading in any way;

b)

if it is offered for sale under the name of another food;

c)

if it is an imitation of another food, unless its label bears in type of uniform size
and prominence, the word "imitation" and, immediately thereafter, the
name of the food imitated;

d)

its containers is so made, formed, or filled as to be misleading;

e)

if in package form unless it bears a label conforming to the requirements of this

Act: Provided, That reasonable variation on the requirements of labeling
shall be permitted and exemptions as to small
packages shall be
established by the regulations prescribed by the concerned department of
health;

f)

if any word, statement or other information required by or under authority of

this Act to appear on the principal display panel of the label or labeling is
not prominently placed thereon with such conspicuousness as compared
with other words, statements, designs or devices in the labeling and in such
terms as to render it likely to be read and understood by the ordinary
individual under customary conditions of purchase and use;

g)

if it purports to be or is represented as a food for which a definition or standard

of identity has been prescribed unless:

1)

it conforms to such definition and standard; and

2)

its labels bears the name of the food specified in the definition or standards,
and insofar as may be required by such regulations, the common names of
optional ingredients other than spices, flavoring and coloring, present in
such food;

h)

if it purports to be or represented as:

1)

a food for which a standard of quality has been prescribed by regulations as

provided in this Act and its quality fall below
such standard, unless
its label bears in such manner and form as such regulations specify, a
statement that it falls below such standard; or

2)

a food for which a standard or standards or fill of container have been

prescribed by regulations as provided by this Act and it falls below the
standard of fill of container applicable thereto, unless its label bears, in
such manner and form as such regulations specify, a statement that it falls
below such standard;

i)

if it is not subject to the provisions of paragraph (g) of this Article unless its
label bears:

1)

the common or usual name of the food, if there be any; and

2)

j)

k)

in case it is manufactured or processed from two or more ingredients, the

common or usual name of such ingredient; except the spices, flavorings and
colorings other than those sold as such, may be designated as spices,
flavorings and colorings without naming each: Provided, That to the extent
that compliance with the requirement of clause (2) of this paragraph is
impracticable or results in deception or unfair competition, exemptions
shall be established by regulations promulgated by the concerned
department of health;

sympathizers proceeded to hold the open mass with Fr. Ambong as

the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners
expelled/excommunicated from the Philippine Independent Church
for reasons of:

if it purports to be or is represented for special dietary uses, unless its label

bears such information concerning its vitamin or mineral or other dietary
properties as the concerned department determines to be, or by regulations
prescribed as necessary in order fully to inform purchasers as its value for
such uses;
if it bears or contains any artificial flavoring, artificial coloring, or chemical
preservative, unless it bears labeling, stating that fact: Provided, That to
the extent that compliance with the requirements of this paragraph is
impracticable, exemptions shall be established by regulations promulgated
by the concerned department. The provisions of this paragraph or
paragraphs (g) and (i) with respect to the artificial coloring shall not apply
in the case of butter, cheese or ice cream.

[G.R. No. 144801. March 10, 2005]

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR
GALANIDA, RENERIO CANTA, JERRY CANTA,
CORDENCIO
CONSIGNA,
SUSANO
ALCALA,
LEONARDO DIZON, SALVADOR GELSANO and
BENITO LAUGO, petitioners, vs. BISHOP PORFIRIO
B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and
DELFIN BORDAS, respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court
of the decision of the Court of Appeals in CA-G.R. SP No. 45480
which reversed and set aside the decision of the Regional Trial
Court of Surigao City, Branch 32 in Civil Case No. 4907 and
ordered said case dismissed for lack of jurisdiction.
The antecedents show that petitioners were lay members of
the Philippine Independent Church (PIC) in Socorro, Surigao del
Norte. Respondents Porfirio de la Cruz and Rustom Florano were
the bishop and parish priest, respectively, of the same church in
that locality. Petitioners, led by Dominador Taruc, clamored for the
transfer of Fr. Florano to another parish but Bishop de la Cruz
denied their request. It appears from the records that the family of
Fr. Floranos wife belonged to a political party opposed to petitioner
Tarucs, thus the animosity between the two factions with Fr.
Florano being identified with his wifes political camp. Bishop de la
Cruz, however, found this too flimsy a reason for transferring Fr.
Florano to another parish.
Meanwhile, hostility among the members of the PIC in
Socorro, Surigao del Norte worsened when petitioner Taruc tried to
organize an open mass to be celebrated by a certain Fr. Renato Z.
Ambong during the town fiesta of Socorro. When Taruc informed
Bishop de la Cruz of his plan, the Bishop tried to dissuade him from
pushing through with it because Fr. Ambong was not a member of
the clergy of the diocese of Surigao and his credentials as a parish
priest were in doubt. The Bishop also appealed to petitioner Taruc
to refrain from committing acts inimical and prejudicial to the best
interests of the PIC. He likewise advised petitioners to air their
complaints before the higher authorities of PIC if they believed they
had valid grievances against him, the parish priest, the laws and
canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying
out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and his

(1)

disobedience to duly constituted authority in the Church;

(2)

inciting dissension, resulting in division in the Parish of

Our Mother of Perpetual Help, Iglesia Filipina
Independiente, Socorro, Surigao del Norte when they
celebrated an open Mass at the Plaza on June 19, 1996;
and

(3)

for threatening to forcibly occupy the Parish Church

causing anxiety and fear among the general
membership.[1]

Petitioners appealed to the Obispo Maximo and sought

reconsideration of the above decision. In his letter to Bishop de la
Cruz, the Obispo Maximo opined that Fr. Florano should step down
voluntarily to avert the hostility and enmity among the members of
the PIC parish in Socorro but stated that:
I do not intervene in your diocesan decision in asking Fr. Florano
to vacate Socorro parish.[2]
In the meantime, Bishop de la Cruz was reassigned to the
diocese of Odmoczan and was replaced by Bishop Rhee M. Timbang.
Like his predecessor, Bishop Timbang did not find a valid reason
for transferring Fr. Florano to another parish. He issued a circular
denying petitioners persistent clamor for the transfer/reassignment of Fr. Florano. Petitioners were informed of such denial
but they continued to celebrate mass and hold other religious
activities through Fr. Ambong who had been restrained from
performing any priestly functions in the PIC parish of Socorro,
Surigao del Norte.
Because of the order of expulsion/excommunication,
petitioners filed a complaint for damages with preliminary
injunction against Bishop de la Cruz before the Regional Trial
Court of Surigao City, Branch 32. They impleaded Fr. Florano and
one Delfin T. Bordas on the theory that they conspired with the
Bishop to have petitioners expelled and excommunicated from the
PIC. They contended that their expulsion was illegal because it was
done without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the
lower court on the ground of lack of jurisdiction but it was denied.
Their motion for reconsideration was likewise denied so they
elevated the case to the Court of Appeals.
The appellate court reversed and set aside the decision of the
court a quo and ordered the dismissal of the case without prejudice
to its being refiled before the proper forum. It held:
We find it unnecessary to deal on the validity of the
excommunication/expulsion of the private respondents (Taruc, et
al.), said acts being purely ecclesiastical matters which this Court
considers to be outside the province of the civil courts.

Civil Courts will not interfere in the internal affairs of a religious

organization except for the protection of civil or property rights.

Those rights may be the subject of litigation in a civil court, and the
courts have jurisdiction to determine controverted claims to the
title, use, or possession of church property. (Ibid., p.466)

Obviously, there was no violation of a civil right in the present case.

Ergo, this Court is of the opinion and so holds that the instant case
does not involve a violation and/or protection of a civil or property
rights in order for the court a quo to acquire jurisdiction in the
instant case.[3]
Petitioners appealed from the above decision but their petition
was denied. Their motion for reconsideration was likewise denied,
hence, this appeal.
The only issue to be resolved in this case is whether or not the
courts have jurisdiction to hear a case involving the
expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987
Constitution specifically provides that:
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.
In our jurisdiction, we hold the Church and the State to be
separate and distinct from each other. Give to Ceasar what is
Ceasars and to God what is Gods. We have, however, observed as
early as 1928 that:
upon the examination of the decisions it will be readily apparent
that cases involving questions relative to ecclesiastical rights have
always received the profoundest attention from the courts, not only
because of their inherent interest, but because of the far reaching
effects of the decisions in human society. [However,] courts have
learned the lesson of conservatism in dealing with such matters, it
having been found that, in a form of government where the complete
separation of civil and ecclesiastical authority is insisted upon, the
civil courts must not allow themselves to intrude unduly in matters
of an ecclesiastical nature.[4] (italics ours)
We agree with the Court of Appeals that the
expulsion/excommunication
of
members
of
a
religious
institution/organization is a matter best left to the discretion of the
officials, and the laws and canons, of said institution/organization.
It is not for the courts to exercise control over church authorities in
the performance of their discretionary and official functions.
Rather, it is for the members of religious institutions/organizations
to conform to just church regulations. In the words of Justice
Samuel F. Miller[5]:
all who unite themselves to an ecclesiastical body do so with an
implied consent to submit to the Church government and they are
bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,[6] we
enunciated the doctrine that in disputes involving religious

institutions or organizations, there is one area which the Court

should not touch: doctrinal and disciplinary differences.[7] Thus,
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. (emphasis ours)
We would, however, like to comment on petitioners claim that
they were not heard before they were expelled from their church.
The records show that Bishop de la Cruz pleaded with petitioners
several times not to commit acts inimical to the best interests of
PIC. They were also warned of the consequences of their actions,
among them their expulsion/excommunication from PIC. Yet, these
pleas and warnings fell on deaf ears and petitioners went ahead
with their plans to defy their Bishop and foment hostility and
disunity among the members of PIC in Socorro, Surigao del Norte.
They should now take full responsibility for the chaos and
dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of
merit.
Costs against petitioners.
SO ORDERED.
Panganiban,
(Chairman), and Sandoval-Gutierrez,
JJ., concur.
Carpio-Morales, J., on leave.
Garcia, J., no part.

Rollo, p. 73.
Rollo, p. 129.
[3] Penned by Associate Justice Bennie A. Adefuin-de la Cruz and concurred
in by Associate Justices Cancio C. Garcia (now Associate Justice of
the Supreme Court) and Renato C. Dacudao, Rollo, p. 82.
[4] Gonzales v. R. Archbishop, 51 Phil. 420, 434 (1928).
[5] In Watson v. Jones, 13 Wall. 679, 723; 20 Law ed., 666, quoted in
Gonzales v. R. Archbishop, supra.
[6] 96 Phil. 417 (1955).
[7] Bernas, J., The 1987 Constitution of the Republic of the Philippines, A
Commentary, 1996 ed., p. 322.
[1]
[2]

---------------------------------------------------------------------------------------------FREE EXERCISE OF RELIGION

----------------------------------------------------------------------------------------------

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-25246 September 12, 1974

BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE
FACTORY, INC., defendants, ELIZALDE ROPE WORKERS'
UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of
the Court of First Instance of Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a
member of the religious sect known as the "Iglesia ni Cristo", had
been in the employ of the Elizalde Rope Factory, Inc. (hereinafter
referred to as Company) since 1958. As such employee, he was a
member of the Elizalde Rope Workers' Union (hereinafter referred
to as Union) which had with the Company a collective bargaining
agreement containing a closed shop provision which reads as
follows:
Membership in the Union shall be required as a
condition of employment for all permanent
employees workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but
was renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to
its amendment by Republic Act No. 3350, the employer was not
precluded "from making an agreement with a labor organization to
require as a condition of employment membership therein, if such
labor organization is the representative of the employees." On June
18, 1961, however, Republic Act No. 3350 was enacted, introducing
an amendment to paragraph (4) subsection (a) of section 4 of
Republic Act No. 875, as follows: ... "but such agreement shall not
cover members of any religious sects which prohibit affiliation of
their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of
its members with any labor organization, Appellee presented his
resignation to appellant Union in 1962, and when no action was
taken thereon, he reiterated his resignation on September 3, 1974.
Thereupon, the Union wrote a formal letter to the Company asking
the latter to separate Appellee from the service in view of the fact
that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his
counsel that unless the Appellee could achieve a satisfactory
arrangement with the Union, the Company would be constrained to
dismiss him from the service. This prompted Appellee to file an
action for injunction, docketed as Civil Case No. 58894 in the Court
of First Instance of Manila to enjoin the Company and the Union
from dismissing Appellee. 1 In its answer, the Union invoked the
"union security clause" of the collective bargaining agreement;
assailed the constitutionality of Republic Act No. 3350; and
contended that the Court had no jurisdiction over the case,

pursuant to Republic Act No. 875, Sections 24 and 9 (d) and

(e).2 Upon the facts agreed upon by the parties during the pre-trial
conference, the Court a quo rendered its decision on August 26,
1965, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is
rendered enjoining the defendant Elizalde Rope
Factory, Inc. from dismissing the plaintiff from his
present employment and sentencing the defendant
Elizalde Rope Workers' Union to pay the plaintiff
P500 for attorney's fees and the costs of this
action. 3
From this decision, the Union appealed directly to this Court on
purely questions of law, assigning the following errors:
I. That the lower court erred when it did not rule
that Republic Act No. 3350 is unconstitutional.
II. That the lower court erred when it sentenced
appellant herein to pay plaintiff the sum of P500
as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No.
3350, the Union contented, firstly, that the Act infringes on the
fundamental right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that membership in a labor
organization is banned to all those belonging to such religious sect
prohibiting affiliation with any labor organization" 4 , "prohibits all
the members of a given religious sect from joining any labor union
if such sect prohibits affiliations of their members thereto" 5 ; and,
consequently, deprives said members of their constitutional right to
form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1
(6) of the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is
unconstitutional for impairing the obligation of contracts in that,
while the Union is obliged to comply with its collective bargaining
agreement containing a "closed shop provision," the Act relieves the
employer from its reciprocal obligation of cooperating in the
maintenance of union membership as a condition of employment;
and that said Act, furthermore, impairs the Union's rights as it
deprives the union of dues from members who, under the Act, are
relieved from the obligation to continue as such members. 7
Thirdly, the Union contended that Republic Act No. 3350
discriminatorily favors those religious sects which ban their
members from joining labor unions, in violation of Article Ill,
Section 1 (7) of the 1935 Constitution; and while said Act unduly
protects certain religious sects, it leaves no rights or protection to
labor organizations. 8
Fourthly, Republic Act No. 3350, asserted the Union, violates the
constitutional provision that "no religious test shall be required for
the exercise of a civil right," in that the laborer's exercise of his civil
right to join associations for purposes not contrary to law has to be
determined under the Act by his affiliation with a religious sect;
that conversely, if a worker has to sever his religious connection
with a sect that prohibits membership in a labor organization in
order to be able to join a labor organization, said Act would violate
religious freedom. 9

Fifthly, the Union contended that Republic Act No. 3350, violates
the "equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni
Cristo", it has granted said members undue advantages over their
fellow workers, for while the Act exempts them from union
obligation and liability, it nevertheless entitles them at the same
time to the enjoyment of all concessions, benefits and other
emoluments that the union might secure from the employer. 10

1. Appellant Union's contention that Republic Act No.

3350 prohibits and bans the members of such religious sects that
forbid affiliation of their members with labor unions from joining
labor unions appears nowhere in the wording of Republic Act No.
3350; neither can the same be deduced by necessary implication
therefrom. It is not surprising, therefore, that appellant, having
thus misread the Act, committed the error of contending that said
Act is obnoxious to the constitutional provision on freedom of
association.

Sixthly, the Union contended that Republic Act No. 3350 violates
the constitutional provision regarding the promotion of social
justice. 11

Both the Constitution and Republic Act No. 875 recognize freedom
of association. Section 1 (6) of Article III of the Constitution of 1935,
as well as Section 7 of Article IV of the Constitution of 1973,
provide that the right to form associations or societies for purposes
not contrary to law shall not be abridged. Section 3 of Republic Act
No. 875 provides that employees shall have the right to selforganization and to form, join of assist labor organizations of their
own choosing for the purpose of collective bargaining and to engage
in concerted activities for the purpose of collective bargaining and
other mutual aid or protection. What the Constitution and the
Industrial Peace Act recognize and guarantee is the "right" to form
or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the
nature and contents of a "right", it can be safely said that whatever
theory one subscribes to, a right comprehends at least two broad
notions, namely: first, liberty or freedom, i.e., the absence of legal
restraint, whereby an employee may act for himself without being
prevented by law; and second, power, whereby an employee may, as
he pleases, join or refrain from Joining an association. It is,
therefore, the employee who should decide for himself whether he
should join or not an association; and should he choose to join, he
himself makes up his mind as to which association he would join;
and even after he has joined, he still retains the liberty and the
power to leave and cancel his membership with said organization at
any time. 20 It is clear, therefore, that the right to join a union
includes the right to abstain from joining any union. 21 Inasmuch as
what both the Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee, is the "right" to join
associations of his choice, it would be absurd to say that the law
also imposes, in the same breath, upon the employee the duty to
join associations. The law does not enjoin an employee to sign up
with any association.

Appellant Union, furthermore, asserted that a "closed shop

provision" in a collective bargaining agreement cannot be
considered violative of religious freedom, as to call for the
amendment introduced by Republic Act No. 3350; 12and that unless
Republic Act No. 3350 is declared unconstitutional, trade unionism
in this country would be wiped out as employers would prefer to
hire or employ members of the Iglesia ni Cristo in order to do away
with labor organizations. 13
Appellee, assailing appellant's arguments, contended that Republic
Act No. 3350 does not violate the right to form lawful associations,
for the right to join associations includes the right not to join or to
resign from a labor organization, if one's conscience does not allow
his membership therein, and the Act has given substance to such
right by prohibiting the compulsion of workers to join labor
organizations; 14 that said Act does not impair the obligation of
contracts for said law formed part of, and was incorporated into, the
terms of the closed shop agreement; 15that the Act does not violate
the establishment of religion clause or separation of Church and
State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its
members from joining labor unions, and balanced the collective
rights of organized labor with the constitutional right of an
individual to freely exercise his chosen religion; that the
constitutional right to the free exercise of one's religion has primacy
and preference over union security measures which are merely
contractual 16 ; that said Act does not violate the constitutional
provision of equal protection, for the classification of workers under
the Act depending on their religious tenets is based on substantial
distinction, is germane to the purpose of the law, and applies to all
the members of a given class; 17 that said Act, finally, does not
violate the social justice policy of the Constitution, for said Act was
enacted precisely to equalize employment opportunities for all
citizens in the midst of the diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it
is necessary to premise that there are some thoroughly established
principles which must be followed in all cases where questions of
constitutionality as obtains in the instant case are involved. All
presumptions are indulged in favor of constitutionality; one who
attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt, that a law may work
hardship does not render it unconstitutional; that if any reasonable
basis may be conceived which supports the statute, it will be
upheld, and the challenger must negate all possible bases; that the
courts are not concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal interpretation of the
constitution in favor of the constitutionality of legislation should be
adopted. 19

The right to refrain from joining labor organizations recognized by

Section 3 of the Industrial Peace Act is, however, limited. The legal
protection granted to such right to refrain from joining is
withdrawn by operation of law, where a labor union and an
employer have agreed on a closed shop, by virtue of which the
employer may employ only member of the collective bargaining
union, and the employees must continue to be members of the
union for the duration of the contract in order to keep their jobs.
Thus Section 4 (a) (4) of the Industrial Peace Act, before its
amendment by Republic Act No. 3350, provides that although it
would be an unfair labor practice for an employer "to discriminate
in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor
organization" the employer is, however, not precluded "from
making an agreement with a labor organization to require as a
condition of employment membership therein, if such labor
organization is the representative of the employees". By virtue,
therefore, of a closed shop agreement, before the enactment of
Republic Act No. 3350, if any person, regardless of his religious
beliefs, wishes to be employed or to keep his employment, he must
become a member of the collective bargaining union. Hence, the
right of said employee not to join the labor union is curtailed and
withdrawn.

To that all-embracing coverage of the closed shop arrangement,

Republic Act No. 3350 introduced an exception, when it added to
Section 4 (a) (4) of the Industrial Peace Act the following proviso:
"but such agreement shall not cover members of any religious sects
which prohibit affiliation of their members in any such labor
organization". Republic Act No. 3350 merely excludes ipso jure from
the application and coverage of the closed shop agreement the
employees belonging to any religious sects which prohibit affiliation
of their members with any labor organization. What the exception
provides, therefore, is that members of said religious sects cannot
be compelled or coerced to join labor unions even when said unions
have closed shop agreements with the employers; that in spite of
any closed shop agreement, members of said religious sects cannot
be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining
union. It is clear, therefore, that the assailed Act, far from
infringing the constitutional provision on freedom of association,
upholds and reinforces it. It does not prohibit the members of said
religious sects from affiliating with labor unions. It still leaves to
said members the liberty and the power to affiliate, or not to
affiliate, with labor unions. If, notwithstanding their religious
beliefs, the members of said religious sects prefer to sign up with
the labor union, they can do so. If in deference and fealty to their
religious faith, they refuse to sign up, they can do so; the law does
not coerce them to join; neither does the law prohibit them from
joining; and neither may the employer or labor union compel them
to join. Republic Act No. 3350, therefore, does not violate the
constitutional provision on freedom of association.

prohibition, the State continues to possess authority to safeguard

the vital interests of its people. Legislation appropriate to
safeguarding said interests may modify or abrogate contracts
already in effect. 25 For not only are existing laws read into
contracts in order to fix the obligations as between the parties, but
the reservation of essential attributes of sovereign power is also
read into contracts as a postulate of the legal order. All contracts
made with reference to any matter that is subject to regulation
under the police power must be understood as made in reference to
the possible exercise of that power. 26 Otherwise, important and
valuable reforms may be precluded by the simple device of entering
into contracts for the purpose of doing that which otherwise may be
prohibited. The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which
contractual relations are worthwhile a government which retains
adequate authority to secure the peace and good order of society.
The contract clause of the Constitution must, therefore, be not only
in harmony with, but also in subordination to, in appropriate
instances, the reserved power of the state to safeguard the vital
interests of the people. It follows that not all legislations, which
have the effect of impairing a contract, are obnoxious to the
constitutional prohibition as to impairment, and a statute passed in
the legitimate exercise of police power, although it incidentally
destroys existing contract rights, must be upheld by the courts.
This has special application to contracts regulating relations
between capital and labor which are not merely contractual, and
said labor contracts, for being impressed with public interest, must
yield to the common good. 27

2. Appellant Union also contends that the Act is unconstitutional

for impairing the obligation of its contract, specifically, the "union
security clause" embodied in its Collective Bargaining Agreement
with the Company, by virtue of which "membership in the union
was required as a condition for employment for all permanent
employees workers". This agreement was already in existence at
the time Republic Act No. 3350 was enacted on June 18, 1961, and
it cannot, therefore, be deemed to have been incorporated into the
agreement. But by reason of this amendment, Appellee, as well as
others similarly situated, could no longer be dismissed from his job
even if he should cease to be a member, or disaffiliate from the
Union, and the Company could continue employing him
notwithstanding his disaffiliation from the Union. The Act,
therefore, introduced a change into the express terms of the union
security clause; the Company was partly absolved by law from the
contractual obligation it had with the Union of employing only
Union members in permanent positions, It cannot be denied,
therefore, that there was indeed an impairment of said union
security clause.

In several occasions this Court declared that the prohibition

against impairing the obligations of contracts has no application to
statutes relating to public subjects within the domain of the general
legislative powers of the state involving public welfare. 28 Thus, this
Court also held that the Blue Sunday Law was not an infringement
of the obligation of a contract that required the employer to furnish
work on Sundays to his employees, the law having been enacted to
secure the well-being and happiness of the laboring class, and
being, furthermore, a legitimate exercise of the police power. 29

According to Black, any statute which introduces a change into the

express terms of the contract, or its legal construction, or its
validity, or its discharge, or the remedy for its enforcement, impairs
the contract. The extent of the change is not material. It is not a
question of degree or manner or cause, but of encroaching in any
respect on its obligation or dispensing with any part of its force.
There is an impairment of the contract if either party is absolved by
law from its performance. 22 Impairment has also been predicated
on laws which, without destroying contracts, derogate from
substantial contractual rights. 23
It should not be overlooked, however, that the prohibition to impair
the obligation of contracts is not absolute and unqualified. The
prohibition is general, affording a broad outline and requiring
construction to fill in the details. The prohibition is not to be read
with literal exactness like a mathematical formula, for it prohibits
unreasonable impairment only. 24 In spite of the constitutional

In order to determine whether legislation unconstitutionally

impairs contract obligations, no unchanging yardstick, applicable at
all times and under all circumstances, by which the validity of each
statute may be measured or determined, has been fashioned, but
every case must be determined upon its own circumstances.
Legislation impairing the obligation of contracts can be sustained
when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are
reasonable. Both the end sought and the means adopted must be
legitimate, i.e., within the scope of the reserved power of the state
construed in harmony with the constitutional limitation of that
power. 30
What then was the purpose sought to be achieved by Republic Act
No. 3350? Its purpose was to insure freedom of belief and religion,
and to promote the general welfare by preventing discrimination
against those members of religious sects which prohibit their
members from joining labor unions, confirming thereby their
natural, statutory and constitutional right to work, the fruits of
which work are usually the only means whereby they can maintain
their own life and the life of their dependents. It cannot be gainsaid
that said purpose is legitimate.
The questioned Act also provides protection to members of said
religious sects against two aggregates of group strength from which
the individual needs protection. The individual employee, at

various times in his working life, is confronted by two aggregates of

power collective labor, directed by a union, and collective capital,
directed by management. The union, an institution developed to
organize labor into a collective force and thus protect the individual
employee from the power of collective capital, is, paradoxically, both
the champion of employee rights, and a new source of their
frustration. Moreover, when the Union interacts with management,
it produces yet a third aggregate of group strength from which the
individual also needs protection the collective bargaining
relationship. 31
The aforementioned purpose of the amendatory law is clearly seen
in the Explanatory Note to House Bill No. 5859, which later became
Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse
employing a person who, on account of his
religious beliefs and convictions, cannot accept
membership in a labor organization although he
possesses all the qualifications for the job. This is
tantamount to punishing such person for believing
in a doctrine he has a right under the law to
believe in. The law would not allow discrimination
to flourish to the detriment of those whose religion
discards membership in any labor organization.
Likewise, the law would not commend the
deprivation of their right to work and pursue a
modest means of livelihood, without in any
manner violating their religious faith and/or
belief. 32
It cannot be denied, furthermore, that the means adopted by the
Act to achieve that purpose exempting the members of said
religious sects from coverage of union security agreements is
reasonable.
It may not be amiss to point out here that the free exercise of
religious profession or belief is superior to contract rights. In case of
conflict, the latter must, therefore, yield to the former. The
Supreme Court of the United States has also declared on several
occasions that the rights in the First Amendment, which include
freedom of religion, enjoy a preferred position in the constitutional
system. 33 Religious freedom, although not unlimited, is a
fundamental personal right and liberty, 34 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 to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is
unconstitutional, appellant Union averred that said Act
discriminates in favor of members of said religious sects in violation
of Section 1 (7) of Article Ill of the 1935 Constitution, and which is
now Section 8 of Article IV of the 1973 Constitution, which
provides:
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
and preference, shall forever be allowed. No
religious test shall be required for the exercise of
civil or political rights.

The constitutional provision into 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, 35 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. 36 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. 37 But if the stage 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. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the
government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. 40 Assessed by these criteria,
Republic Act No. 3350 cannot be said to violate the constitutional
inhibition of the "no-establishment" (of religion) clause of the
Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and
temporal, not spiritual or religious or holy and eternal. It 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.
To help its citizens to find gainful employment whereby they can
make a living to support themselves and their families is a valid
objective of the state. In fact, the state is enjoined, in the 1935
Constitution, to afford protection to labor, and regulate the
relations between labor and capital and industry. 41 More so now in
the 1973 Constitution where it is mandated that "the State shall
afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex,
race or creed and regulate the relation between workers and
employers. 42
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 by eliminating to a certain extent economic
insecurity due to unemployment, which is a serious menace to the
health, morals, and welfare of the people of the State, the Act also
promotes the well-being of society. It is our view that the exemption
from the effects of closed shop agreement does not directly advance,
or diminish, the interests of any particular religion. Although 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. The
"establishment clause" (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or
harmonize with the tenets of some or all religions. 43 The free

exercise clause of the Constitution has been interpreted to require

that religious exercise be preferentially aided. 44
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. It was
Congress itself that imposed that burden when it enacted the
Industrial Peace Act (Republic Act 875), and, certainly, Congress, if
it so deems advisable, could take away the same burden. It is
certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes.45 In the instant case, We see
no such compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects
members of certain religious sects, it leaves no right to, and is
silent as to the protection of, labor organizations. The purpose of
Republic Act No. 3350 was not to grant rights to labor unions. The
rights of labor unions are amply provided for in Republic Act No.
875 and the new Labor Code. As to the lamented silence of the Act
regarding the rights and protection of labor unions, suffice it to say,
first, that the validity of a statute is determined by its provisions,
not by its silence 46 ; and, second, the fact that the law may work
hardship does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel
persons to join and remain members of a union to keep their jobs in
violation of their religious scrupples, would hurt, rather than help,
labor unions, Congress has seen it fit to exempt religious objectors
lest their resistance spread to other workers, for religious objections
have contagious potentialities more than political and philosophic
objections.
Furthermore, let it be noted that coerced unity and loyalty even to
the country, and a fortiori to a labor union 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. 48 A desirable end cannot be promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350
violates the constitutional prohibition against requiring a religious
test for the exercise of a civil right or a political right, is not well
taken. The Act does not require as a qualification, or condition, for
joining any lawful association membership in any particular
religion or in any religious sect; neither does the Act require
affiliation with a religious sect that prohibits its members from
joining a labor union as a condition or qualification for withdrawing
from a labor union. Joining or withdrawing from a labor union
requires a positive act. Republic Act No. 3350 only exempts
members with such religious affiliation from the coverage of closed
shop agreements. So, under this Act, a religious objector is not
required to do a positive act to exercise the right to join or to
resign from the union. He is exempted ipso jure without need of any
positive act on his part. A conscientious religious objector need not
perform a positive act or exercise the right of resigning from the
labor union he is exempted from the coverage of any closed shop
agreement that a labor union may have entered into. How then can
there be a religious test required for the exercise of a right when no
right need be exercised?
We have said that it was within the police power of the State to
enact Republic Act No. 3350, and that its purpose was legal and in
consonance with the Constitution. It is never an illegal evasion of a

constitutional provision or prohibition to accomplish a desired

result, which is lawful in itself, by discovering or following a legal
way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is
a discriminatory legislation, inasmuch as it grants to the members
of certain religious sects undue advantages over other workers,
thus violating Section 1 of Article III of the 1935 Constitution
which forbids the denial to any person of the equal protection of the
laws. 50
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. 51 It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. 52 The very idea of
classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the
matter of constitutionality. 53 All that is required of a valid
classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. 54 This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose
of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. 56 It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. 57 Neither is it necessary
that the classification be made with mathematical nicety. 58 Hence
legislative classification may in many cases properly rest on narrow
distinctions,59 for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned
requirements. The Act classifies employees and workers, as to the
effect and coverage of union shop security agreements, into those
who by reason of their religious beliefs and convictions cannot sign
up with a labor union, and those whose religion does not prohibit
membership in labor unions. Tile classification rests on real or
substantial, not merely imaginary or whimsical, distinctions. There
is such real distinction in the beliefs, feelings and sentiments of
employees. Employees do not believe in the same religious faith and
different religions differ in their dogmas and cannons. Religious
beliefs, manifestations and practices, though they are found in all

places, and in all times, take so many varied forms as to be almost

beyond imagination. There are many views that comprise the broad
spectrum of religious beliefs among the people. There are diverse
manners in which beliefs, equally paramount in the lives of their
possessors, may be articulated. Today the country is far more
heterogenous in religion than before, differences in religion do exist,
and these differences are important and should not be ignored.
Even from the phychological point of view, the classification is
based on real and important differences. Religious beliefs are not
mere beliefs, mere ideas existing only in the mind, for they carry
with them practical consequences and are the motives of certain
rules. of human conduct and the justification of certain
acts. 60 Religious sentiment makes a man view things and events in
their relation to his God. It gives to human life its distinctive
character, its tone, its happiness or unhappiness its enjoyment or
irksomeness. Usually, a strong and passionate desire is involved in
a religious belief. To certain persons, no single factor of their
experience is more important to them than their religion, or their
not having any religion. Because of differences in religious belief
and sentiments, a very poor person may consider himself better
than the rich, and the man who even lacks the necessities of life
may be more cheerful than the one who has all possible luxuries.
Due to their religious beliefs people, like the martyrs, became
resigned to the inevitable and accepted cheerfully even the most
painful and excruciating pains. Because of differences in religious
beliefs, the world has witnessed turmoil, civil strife, persecution,
hatred, bloodshed and war, generated to a large extent by members
of sects who were intolerant of other religious beliefs. The
classification, introduced by Republic Act No. 3350, therefore, rests
on substantial distinctions.
The classification introduced by said Act is also germane to its
purpose. The purpose of the law is precisely to avoid those who
cannot, because of their religious belief, join labor unions, from
being deprived of their right to work and from being dismissed from
their work because of union shop security agreements.
Republic Act No. 3350, furthermore, is not limited in its application
to conditions existing at the time of its enactment. The law does not
provide that it is to be effective for a certain period of time only. It
is intended to apply for all times as long as the conditions to which
the law is applicable exist. As long as there are closed shop
agreements between an employer and a labor union, and there are
employees who are prohibited by their religion from affiliating with
labor unions, their exemption from the coverage of said agreements
continues.
Finally, the Act applies equally to all members of said religious
sects; this is evident from its provision. The fact that the law grants
a privilege to members of said religious sects cannot by itself render
the Act unconstitutional, for as We have adverted to, the Act only
restores to them their freedom of association which closed shop
agreements have taken away, and puts them in the same plane as
the other workers who are not prohibited by their religion from
joining labor unions. The circumstance, that the other employees,
because they are differently situated, are not granted the same
privilege, does not render the law unconstitutional, for every
classification allowed by the Constitution by its nature involves
inequality.
The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered

invalid. A classification otherwise reasonable does not offend the

constitution simply because in practice it results in some
inequality. 61 Anent this matter, it has been said that whenever it
is apparent from the scope of the law that its object is for the
benefit of the public and the means by which the benefit is to be
obtained are of public character, the law will be upheld even though
incidental advantage may occur to individuals beyond those enjoyed
by the general public. 62
6. Appellant's further contention that Republic Act No. 3350
violates the constitutional provision on social justice is also
baseless. Social justice is intended to promote the welfare of all the
people. 63 Republic Act No. 3350 promotes that welfare insofar as it
looks after the welfare of those who, because of their religious
belief, cannot join labor unions; the Act prevents their being
deprived of work and of the means of livelihood. In determining
whether any particular measure is for public advantage, it is not
necessary that the entire state be directly benefited it is
sufficient that a portion of the state be benefited thereby.
Social justice also means the adoption by the Government of
measures calculated to insure economic stability of all component
elements of society, through the maintenance of a proper economic
and social equilibrium in the inter-relations of the members of the
community. 64 Republic Act No. 3350 insures economic stability to
the members of a religious sect, like the Iglesia ni Cristo, who are
also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union
having a closed shop agreement with the employer. The Act also
advances the proper economic and social equilibrium between labor
unions and employees who cannot join labor unions, for it exempts
the latter from the compelling necessity of joining labor unions that
have closed shop agreements and equalizes, in so far as opportunity
to work is concerned, those whose religion prohibits membership in
labor unions with those whose religion does not prohibit said
membership. Social justice does not imply social equality, because
social inequality will always exist as long as social relations depend
on personal or subjective proclivities. Social justice does not require
legal equality because legal equality, being a relative term, is
necessarily premised on differentiations based on personal or
natural conditions. 65 Social justice guarantees equality of
opportunity 66 , and this is precisely what Republic Act No. 3350
proposes to accomplish it gives laborers, irrespective of their
religious scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment
introduced by Republic Act No. 3350 is not called for in other
words, the Act is not proper, necessary or desirable. Anent this
matter, it has been held that a statute which is not necessary is
not, for that reason, unconstitutional; that in determining the
constitutional validity of legislation, the courts are unconcerned
with issues as to the necessity for the enactment of the legislation
in question. 67 Courts do inquire into the wisdom of
laws. 68 Moreover, legislatures, being chosen by the people, are
presumed to understand and correctly appreciate the needs of the
people, and it may change the laws accordingly. 69 The fear is
entertained by appellant that unless the Act is declared
unconstitutional, employers will prefer employing members of
religious sects that prohibit their members from joining labor
unions, and thus be a fatal blow to unionism. We do not agree. The
threat to unionism will depend on the number of employees who are
members of the religious sects that control the demands of the labor
market. But there is really no occasion now to go further and
anticipate problems We cannot judge with the material now before
Us. At any rate, the validity of a statute is to be determined from
its general purpose and its efficacy to accomplish the end desired,

not from its effects on a particular case. 70 The essential basis for
the exercise of power, and not a mere incidental result arising from
its exertion, is the criterion by which the validity of a statute is to
be measured. 71
II. We now pass on the second assignment of error, in support of
which the Union argued that the decision of the trial court ordering
the Union to pay P500 for attorney's fees directly contravenes
Section 24 of Republic Act No. 875, for the instant action involves
an industrial dispute wherein the Union was a party, and said
Union merely acted in the exercise of its rights under the union
shop provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil
Code; that, furthermore, Appellee was never actually dismissed by
the defendant Company and did not therefore suffer any damage at
all . 72
In refuting appellant Union's arguments, Appellee claimed that in
the instant case there was really no industrial dispute involved in
the attempt to compel Appellee to maintain its membership in the
union under pain of dismissal, and that the Union, by its act,
inflicted intentional harm on Appellee; that since Appellee was
compelled to institute an action to protect his right to work,
appellant could legally be ordered to pay attorney's fees under
Articles 1704 and 2208 of the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875 which
is relied upon by appellant provides that:
No suit, action or other proceedings shall be
maintainable in any court against a labor
organization or any officer or member thereof for
any act done by or on behalf of such
organization in furtherance of an industrial
dispute to which it is a party, on the ground only
that such act induces some other person to break
a contract of employment or that it is in restraint
of trade or interferes with the trade, business or
employment of some other person or with the
right of some other person to dispose of his capital
or labor. (Emphasis supplied)
That there was a labor dispute in the instant case cannot be
disputed for appellant sought the discharge of respondent by virtue
of the closed shop agreement and under Section 2 (j) of Republic Act
No. 875 a question involving tenure of employment is included in
the term "labor dispute". 74 The discharge or the act of seeking it is
the labor dispute itself. It being the labor dispute itself, that very
same act of the Union in asking the employer to dismiss Appellee
cannot be "an act done ... in furtherance of an industrial
dispute". The mere fact that appellant is a labor union does not
necessarily mean that all its acts are in furtherance of an industrial
dispute. 75 Appellant Union, therefore, cannot invoke in its favor
Section 24 of Republic Act No. 875. This case is not intertwined
with any unfair labor practice case existing at the time when
Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union,
serve as its shield. The article provides that attorney's fees and
expenses of litigation may be awarded "when the defendant's act or
omission has compelled the plaintiff ... to incur expenses to protect
his interest"; and "in any other case where the court deems it just
and equitable that attorney's fees and expenses of litigation should
be recovered". In the instant case, it cannot be gainsaid that
appellant Union's act in demanding Appellee's dismissal caused

Appellee to incur expenses to prevent his being dismissed from his

job. Costs according to Section 1, Rule 142, of the Rules of Court,
shall be allowed as a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision,
dated August 26, 1965, of the Court of First Instance of Manila, in
its Civil Case No. 58894, appealed from is affirmed, with costs
against appellant Union. It is so ordered.
Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio,
Esguerra, Muoz Palma and Aquino, JJ., concur.

Separate Opinions

FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic
Act No. 3350 is free from the constitutional infirmities imputed to it
was demonstrated in a manner wellnigh conclusive in the learned,
scholarly, and comprehensive opinion so typical of the efforts of
the ponente, Justice Zaldivar. Like the rest of my brethren, I concur
fully. Considering moreover, the detailed attention paid to each and
every objection raised as to its validity and the clarity and
persuasiveness with which it was shown to be devoid of support in
authoritative doctrines, it would appear that the last word has been
written on this particular subject. Nonetheless, I deem it proper to
submit this brief expression of my views on the transcendent
character of religious freedom 1 and its primacy even as against the
claims of protection to labor, 2 also one of the fundamental
principles of the Constitution.
1. Religious freedom is identified with the liberty every individual
possesses to worship or not a Supreme Being, and if a devotee of
any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that
"profession of faith to an active power that binds and elevates man
to his Creator ...." 3 The choice of what a man wishes to believe in is
his and his alone. That is a domain left untouched, where intrusion
is not allowed, a citadel to which the law is denied entry, whatever
be his thoughts or hopes. In that sphere, what he wills reigns
supreme. The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation. No matter.
There is no requirement as to its conformity to what has found
acceptance. It suffices that for him such a concept holds undisputed
sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity
that attaches to every human being to deprive him of such an
attribute. The "fixed star on our constitutional constellation," to
borrow the felicitous phrase of Justice Jackson, is that no official,
not excluding the highest, has it in his power to prescribe what
shall be orthodox in matters of conscience or to mundane affairs,
for that matter.
Gerona v. Secretary of Education 4 speaks similarly. In the
language of its ponente, Justice Montemayor: "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." 5 There was this
qualification though: "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." 6 It
was on that basis that the daily compulsory flag ceremony in
accordance with a statute 7 was found free from the constitutional
objection on the part of a religious sect, the Jehovah's Witnesses,
whose members alleged that their participation would be offensive
to their religious beliefs. In a case not dissimilar, West Virginia
State Board of Education v. Barnette, 8 the American Supreme
Court reached a contrary conclusion. Justice Jackson's eloquent
opinion is, for this writer, highly persuasive. Thus: "The case is
made difficult not because the principles of its decision are obscure
but because the flag involved is our own. Nevertheless, we apply
the limitations of the Constitution with no fear that freedom to be
intellectually and spiritually diverse or even contrary will
disintegrate the social organization. To believe that patriotism will
not flourish if patriotic ceremonies are voluntary and spontaneous
instead of a compulsory routine is to make an unflattering estimate
of the appeal of our institutions to free minds. We can have
intellectual individualism and the rich cultural diversities that we
owe to exceptional minds only at the price of occasional eccentricity
and abnormal attitudes. When they are so harmless to others or to
the State as those we deal with here, the price is not too great. But
freedom 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." 9
There is moreover this ringing affirmation by Chief Justice Hughes
of the primacy of religious freedom in the forum of conscience even
as against the command of the State itself: "Much has been said of
the paramount duty to the state, a duty to be recognized, it is
urged, even though it conflicts with convictions of duty to God.
Undoubtedly that duty to the state exists within the domain of
power, for government may enforce obedience to laws regardless of
scruples. When one's belief collides with the power of the state, the
latter is supreme within its sphere and submission or punishment
follows. But, in the forum of conscience, duty to a moral power
higher than the state has always been maintained. The reservation
of that supreme obligation, as a matter of principle, would
unquestionably be made by many of our conscientious and lawabiding citizens. The essence of religion is belief in a relation to God
involving duties superior to those arising from any human
relation." 10 The American Chief Justice spoke in dissent, it is true,
but with him in agreement were three of the foremost jurists who
ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.
2. As I view Justice Zaldivar's opinion in that light, my
concurrence, as set forth earlier, is wholehearted and entire. With
such a cardinal postulate as the basis of our polity, it has a message
that cannot be misread. Thus is intoned with a reverberating clang,
to paraphrase Cardozo, a fundamental principle that drowns all
weaker sounds. The labored effort to cast doubt on the validity of
the statutory provision in question is far from persuasive. It is
attended by futility. It is not for this Court, as I conceive of the
judicial function, to restrict the scope of a preferred freedom.

3. There is, however, the question of whether such an exception

possesses an implication that lessens the effectiveness of state
efforts to protect labor, likewise, as noted, constitutionally
ordained. Such a view, on the surface, may not be lacking in
plausibility, but upon closer analysis, it cannot stand scrutiny.
Thought must be given to the freedom of association, likewise an
aspect of intellectual liberty. For the late Professor Howe a
constitutionalist and in his lifetime the biographer of the great
Holmes, it even partakes of the political theory of pluralistic
sovereignty. So great is the respect for the autonomy accorded
voluntary societies. 11 Such a right implies at the very least that
one can determine for himself whether or not he should join or
refrain from joining a labor organization, an institutional device for
promoting the welfare of the working man. A closed shop, on the
other hand, is inherently coercive. That is why, as is unmistakably
reflected in our decisions, the latest of which is Guijarno v. Court of
Industrial Relations, 12 it is far from being a favorite of the law. For
a statutory provision then to further curtail its operation, is
precisely to follow the dictates of sound public policy.
The exhaustive and well-researched opinion of Justice Zaldivar
thus is in the mainstream of constitutional tradition. That, for me,
is the channel to follow.

Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this Court that Republic
Act No. 3350 is free from the constitutional infirmities imputed to it
was demonstrated in a manner wellnigh conclusive in the learned,
scholarly, and comprehensive opinion so typical of the efforts of
the ponente, Justice Zaldivar. Like the rest of my brethren, I concur
fully. Considering moreover, the detailed attention paid to each and
every objection raised as to its validity and the clarity and
persuasiveness with which it was shown to be devoid of support in
authoritative doctrines, it would appear that the last word has been
written on this particular subject. Nonetheless, I deem it proper to
submit this brief expression of my views on the transcendent
character of religious freedom 1 and its primacy even as against the
claims of protection to labor, 2 also one of the fundamental
principles of the Constitution.
1. Religious freedom is identified with the liberty every individual
possesses to worship or not a Supreme Being, and if a devotee of
any sect, to act in accordance with its creed. Thus is
constitutionally safeguarded, according to Justice Laurel, that
"profession of faith to an active power that binds and elevates man
to his Creator ...." 3 The choice of what a man wishes to believe in is
his and his alone. That is a domain left untouched, where intrusion
is not allowed, a citadel to which the law is denied entry, whatever
be his thoughts or hopes. In that sphere, what he wills reigns
supreme. The doctrine to which he pays fealty may for some be
unsupported by evidence, devoid of rational foundation. No matter.
There is no requirement as to its conformity to what has found
acceptance. It suffices that for him such a concept holds undisputed
sway. That is a recognition of man's freedom. That for him is one of
the ways of self- realization. It would be to disregard the dignity
that attaches to every human being to deprive him of such an
attribute. The "fixed star on our constitutional constellation," to

borrow the felicitous phrase of Justice Jackson, is that no official,

not excluding the highest, has it in his power to prescribe what
shall be orthodox in matters of conscience or to mundane affairs,
for that matter.
Gerona v. Secretary of Education 4 speaks similarly. In the
language of its ponente, Justice Montemayor: "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." 5 There was this
qualification though: "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." 6 It
was on that basis that the daily compulsory flag ceremony in
accordance with a statute 7 was found free from the constitutional
objection on the part of a religious sect, the Jehovah's Witnesses,
whose members alleged that their participation would be offensive
to their religious beliefs. In a case not dissimilar, West Virginia
State Board of Education v. Barnette, 8 the American Supreme
Court reached a contrary conclusion. Justice Jackson's eloquent
opinion is, for this writer, highly persuasive. Thus: "The case is
made difficult not because the principles of its decision are obscure
but because the flag involved is our own. Nevertheless, we apply
the limitations of the Constitution with no fear that freedom to be
intellectually and spiritually diverse or even contrary will
disintegrate the social organization. To believe that patriotism will
not flourish if patriotic ceremonies are voluntary and spontaneous
instead of a compulsory routine is to make an unflattering estimate
of the appeal of our institutions to free minds. We can have
intellectual individualism and the rich cultural diversities that we
owe to exceptional minds only at the price of occasional eccentricity
and abnormal attitudes. When they are so harmless to others or to
the State as those we deal with here, the price is not too great. But
freedom 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." 9
There is moreover this ringing affirmation by Chief Justice Hughes
of the primacy of religious freedom in the forum of conscience even
as against the command of the State itself: "Much has been said of
the paramount duty to the state, a duty to be recognized, it is
urged, even though it conflicts with convictions of duty to God.
Undoubtedly that duty to the state exists within the domain of
power, for government may enforce obedience to laws regardless of
scruples. When one's belief collides with the power of the state, the
latter is supreme within its sphere and submission or punishment
follows. But, in the forum of conscience, duty to a moral power
higher than the state has always been maintained. The reservation
of that supreme obligation, as a matter of principle, would
unquestionably be made by many of our conscientious and lawabiding citizens. The essence of religion is belief in a relation to God
involving duties superior to those arising from any human
relation." 10 The American Chief Justice spoke in dissent, it is true,
but with him in agreement were three of the foremost jurists who
ever sat in that Tribunal, Justices Holmes, Brandeis, and Stone.
2. As I view Justice Zaldivar's opinion in that light, my
concurrence, as set forth earlier, is wholehearted and entire. With
such a cardinal postulate as the basis of our polity, it has a message

that cannot be misread. Thus is intoned with a reverberating clang,

to paraphrase Cardozo, a fundamental principle that drowns all
weaker sounds. The labored effort to cast doubt on the validity of
the statutory provision in question is far from persuasive. It is
attended by futility. It is not for this Court, as I conceive of the
judicial function, to restrict the scope of a preferred freedom.
3. There is, however, the question of whether such an exception
possesses an implication that lessens the effectiveness of state
efforts to protect labor, likewise, as noted, constitutionally
ordained. Such a view, on the surface, may not be lacking in
plausibility, but upon closer analysis, it cannot stand scrutiny.
Thought must be given to the freedom of association, likewise an
aspect of intellectual liberty. For the late Professor Howe a
constitutionalist and in his lifetime the biographer of the great
Holmes, it even partakes of the political theory of pluralistic
sovereignty. So great is the respect for the autonomy accorded
voluntary societies. 11 Such a right implies at the very least that
one can determine for himself whether or not he should join or
refrain from joining a labor organization, an institutional device for
promoting the welfare of the working man. A closed shop, on the
other hand, is inherently coercive. That is why, as is unmistakably
reflected in our decisions, the latest of which is Guijarno v. Court of
Industrial Relations, 12 it is far from being a favorite of the law. For
a statutory provision then to further curtail its operation, is
precisely to follow the dictates of sound public policy.
The exhaustive and well-researched opinion of Justice Zaldivar
thus is in the mainstream of constitutional tradition. That, for me,
is the channel to follow.

CANTWELL V. CONNECTICUT (1940)

Background Information
Newton Cantwell and his two sons traveled to New Haven,
Connecticut, in order to promote their message as Jehovah's
Witnesses. In New Haven, a statute required that anyone wishing
to solicit funds or distribute materials had to apply for a license - if
the official in charge found that they were a bona fide charity or
religious, then a license would be granted. Otherwise, a license was
denied.
The Cantwells did not apply for a license because, in their opinion,
the government was in no position to certify Witnesses as a religion
- such a decision was simply outside the governent's secular
authority. As a result they were were convicted under a statute
which forbade the unlicensed soliciting of funds for religious or
charitable purposes, and also under a general charge of breach of
the peace because they had been going door-to-door with books and
pamphlets in a predominately Roman Catholic area, playing a
record entitled "Enemies" which attacked Catholicism.
Cantwell alleged that the statute they had been convicted under
infringed upon their right to free speech and challenged it in the
courts.

Court Decision
With Justice Roberts writing the majority opinion, the Supreme
Court found that statutes requiring a license to solicit for religious
purposes constituted a prior restraint upon speech and gave the
government too much power in determining which groups were
permitted to solicit. The officer who issued licences for solicitation
was authorized to inquire whether the applicant did have a
religious cause and to decline a license if in his view the cause was
not religious:
Such a censorship of religion as the means of determining its right
to survive is a denial of liberty protected by the First Amendment
and included in the liberty which is within the protection of the
Fourteenth.
Even if an error by the secretary can be corrected by the courts, the
process still serves as an unconstitutional prior restraint:
To condition the solicitation of aid for the perpetuation of religious
views or systems upon a license, the grant of which rests in the
exercise of a determination by state authority as to what is a
religious cause, is to lay a forbidden burden upon the exercise of
liberty protected by the Constitution.
The breach of the peace accusation arose because the three accosted
two Catholics in a strongly Catholic neighborhood and played them
a phonograph record which, in their opinion, insulted the Christian
religion in general and the Catholic Church in particular. The
Court voided this conviction under the clear-and-present danger
test, ruling that the interest sought to be upheld by the State did
not justify the suppression of religious views that simply annoyed
others.
According to the Court, the Cantwells simply did not pose a threat
to public order merely by spreading their message:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point
of view, the pleader, as we know, at times, 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
probabilities of excesses and abuses, these liberties are in the long
view, essential to enlightened opinion and right conduct on the part
of the citizens of a democracy.
Significance
This judgement prohibited governments from creating special
requirements for people spreading religious ideas and sharing a
message in an unfriendly environment because such speech acts do
not automtically represent a "threat to public order."
This decision was also notable because it was the first time that the
Court had incorporated the Free Exercise Clause into the
Fourteenth Amdendment - since that point, it always has.

U.S. V. BALLARD (1944)

Background Information
Guy Ballard was the leader of the "I Am" Movement and claimed to
have had remarkable spiritual experiences - including personal
encounters with Saint Germain and even Jesus. As a result of these
experiences, he believed that he knew things like the secret of good
and even claimed that he could heal incurable diseases.
Ballard and his family sent out mass mailings repeating these
claims and soliciting contributions in exchange for his healing
services. The government claimed that he 'well knew' that these
claims were false and he used them to defraud others of their
money - thus, he was convicted of mail fraud. Ballard challenged
his conviction by arguing that the government had no right to judge
his religious beliefs in this manner.
Court Decision
The question before the court was basically whether the truth or
falsity of the Ballards' theology was a material issues - in the initial
trial, the jury was told not to consider Ballard's religious beliefs and
instead they were instructed to determine whether the defendant
believed that he possessed the ability to heal others.
In other words, the constitutional issue was whether or not the
courts or the government have the right to evaluate the religious
beliefs of a citizen or group. The Supreme Court ruled to the
contrary, finding that that it was proper for the jury to base its
decision on the sincerity of Ballard's beliefs.
The content of the teachings of the 'I Am' movement were found to
be immaterial because the content of religious convictions could not
be evaluated as either correct or incorrect - the fact that people
have the right to believe what they want means that the
government is not permitted to make judgements about the validity
of those beliefs. As Justice William O. Douglas stated, writing for
the majority:
Freedom of thought, which includes freedom of religious belief, is
basic to the society of free men. It embraces the right to maintain
theories of life and death of the hereafter which are rank heresy to
followers of the orthodox faiths. Heresy trials are foreign to our
Constitution. Mean may believe what they cannot prove. They may
not be put to the proof of their religious doctrines or beliefs.
Religious experiences which are as real as life to some may be
incomprehensible to others. Yet the fact that they may be beyond
the ken of mortals does not mean that they can be made suspect
before the law.
...Man's relationship to his God was made no concern of the state.
He was granted the right to worship as he pleased and to answer to
no man for the verity of his religious views.

Because of the First Amendment, heresy is not a valid offense in

the United States. All that was really at issue was whether Ballard
honestly believed that he possessed the powers he claimed.
Significance
This decision prevented juries from being asked to consider
whether a person's religious beliefs were ever true. All that
mattered was that the person accept them in good faith; no
government was allowed to attempt to determine if they are logical,
valid, or accurate. This is of particular concern to minority religious
faiths and so-called "cults" which are often the target of government
action.
This decision did not mean that no religious groups could be
prosecuted for fraud - for example, they could not promise to do one
thing with donations and then do another. But even such cases, the
government must take care not to make any judgements about the
group's theological positions.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-9637
April 30, 1957
AMERICAN BIBLE SOCIETY, plaintiff-appellant,
vs.
CITY OF MANILA, defendant-appellee.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Naawa for appellee.
FELIX, J.:
SYLLABUS
1. STATUTES; SIMULTANEOUS REPEAL AND RE-ENACTMENT;
EFFECT OF REPEAL UPON RIGHTS AND LIABILITIES WHICH
ACCRUED UNDER THE ORIGINAL STATUTE. Where the old
statute is repealed in its entirety and by the same enactment
re-enacts all or certain portions of the pre-existing law, the
majority view holds that the rights and liabilities which have
accrued under the original statute are preserved and may be
enforced, since the re-enactment neutralizes the repeal,
therefore continuing the law in force without interruption.
(Crawford, Statutory Construction, Sec. 322). In the case at
bar, Ordinances Nos. 2529 and 3000 of the City of Manila
were enacted by the Municipal Board of the City of Manila by
virtue of the power granted to it by section 2444, Subsection
(m-2) of the Revised Administrative Code, superseded on
June 13, 1949, by section 13, Subsection (o) of Republic Act
No. 409, known as the Revised Charter of the City of Manila.
The only essential difference between these two provisions is
that while Subsection (m-2) prescribes that the combined
total tax of any dealer or manufacturer, or both, enumerated
under Subsections (m-1) and (m-2), whether dealing in one

or all of the articles mentioned therein, shall not be in excess

of P500 per annum, the corresponding Section 18, subsection
(o) of Republic Act No. 409, does not contain any limitation
as to the amount of tax or license fee that the retail dealer
has to pay per annum. Hence, and in accordance with the
weight of authorities aforementioned, City ordinances Nos.
2529 and 3000 are still in force and effect.
2. MUNICIPAL TAX; RETAIL DEALERS IN GENERAL
MERCHANDISE; ORDINANCE PRESCRIBING TAX NEED NOT
BE APPROVED BY THE PRESIDENT TO BE EFFECTIVE. The
business of "retail dealers in general merchandise" is
expressly enumerated in subsection (o), section 18 of
Republic Act No. 409: hence, an ordinance prescribing a
municipal tax on said business does not have to be approved
by the President to be effective, as it is not among those
businesses referred to in subsection (ii) Section 18 of the
same Act subject to the approval of the President.
3.
CONSTITUTIONAL
LAW;
RELIGIOUS
FREEDOM;
DISSEMINATION OF RELIGIOUS INFORMATION, WHEN MAY
BE RESTRAINED; PAYMENT OF LICENSE FEE, IMPAIRS FREE
EXERCISE OF RELIGION. 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." (Taada and
Fernando on the Constitution of the Philippines, Vol. I, 4th
ed., p. 297). In the case at bar, plaintiff is engaged in the
distribution and sales of bibles and religious articles. The City
Treasurer of Manila informed the plaintiff that it was
conducting the business of general merchandise without
providing itself with the necessary Mayors permit and
municipal license, in violation of Ordinance No. 3000, as
amended, and Ordinance No. 2529, as amended, and
required plaintiff to secure the corresponding permit and
license. Plaintiff protested against this requirement and
claimed that it never made any profit from the sale of its
bibles. Held: It is true the price asked for the religious articles
was in some instances a little bit higher than the actual cost
of the same, but this cannot mean that plaintiff was engaged
in the business or occupation of selling said "merchandise" for
profit. For this reasons, the provisions of City Ordinance No.
2529, as amended, which requires the payment of license fee
for conducting the business of general merchandise, cannot
be applied to plaintiff society, for in doing so, it would impair
its free exercise and enjoyment of its religious profession and
worship, as well as its rights of dissemination of religious
beliefs. Upon the other hand, City Ordinance No. 3000, as
amended, which requires the obtention of the Mayors permit
before any person can engage in any of the businesses,
trades or occupations enumerated therein, does not impose
any charge upon the enjoyment of a right granted by the
Constitution, nor tax the exercise of religious practices.
Hence, it cannot be considered unconstitutional, even if
applied to plaintiff Society. But as Ordinance No. 2529 is not
applicable to plaintiff and the City of Manila is powerless to
license or tax the business of plaintiff society involved herein,
for the reasons above stated, Ordinance No. 3000 is also
inapplicable to said business, trade or occupation of the
plaintiff.
DECISION

Plaintiff-appellant is a foreign, non-stock, non-profit, religious,

missionary corporation duly registered and doing business in the
Philippines through its Philippine agency established in Manila in
November, 1898, with its principal office at 636 Isaac Peral in said
City. The defendant appellee is a municipal corporation with
powers that are to be exercised in conformity with the provisions of
Republic Act No. 409, known as the Revised Charter of the City of
Manila.
In the course of its ministry, plaintiff's Philippine agency has been
distributing and selling bibles and/or gospel portions thereof (except
during the Japanese occupation) throughout the Philippines and
translating the same into several Philippine dialects. On May 29
1953, the acting City Treasurer of the City of Manila informed
plaintiff that it was conducting the business of general merchandise
since November, 1945, without providing itself with the necessary
Mayor's permit and municipal license, in violation of Ordinance No.
3000, as amended, and Ordinances Nos. 2529, 3028 and 3364, and
required plaintiff to secure, within three days, the corresponding
permit and license fees, together with compromise covering the
period from the 4th quarter of 1945 to the 2nd quarter of 1953, in
the total sum of P5,821.45 (Annex A).
Plaintiff protested against this requirement, but the City Treasurer
demanded that plaintiff deposit and pay under protest the sum of
P5,891.45, if suit was to be taken in court regarding the same
(Annex B). To avoid the closing of its business as well as further
fines and penalties in the premises on October 24, 1953, plaintiff
paid to the defendant under protest the said permit and license fees
in the aforementioned amount, giving at the same time notice to
the City Treasurer that suit would be taken in court to question the
legality of the ordinances under which, the said fees were being
collected (Annex C), which was done on the same date by filing the
complaint that gave rise to this action. In its complaint plaintiff
prays that judgment be rendered declaring the said Municipal
Ordinance No. 3000, as amended, and Ordinances Nos. 2529, 3028
and 3364 illegal and unconstitutional, and that the defendant be
ordered to refund to the plaintiff the sum of P5,891.45 paid under
protest, together with legal interest thereon, and the costs, plaintiff
further praying for such other relief and remedy as the court may
deem just equitable.
Defendant answered the complaint, maintaining in turn that said
ordinances were enacted by the Municipal Board of the City of
Manila by virtue of the power granted to it by section 2444,
subsection (m-2) of the Revised Administrative Code, superseded on
June 18, 1949, by section 18, subsection (1) of Republic Act No. 409,
known as the Revised Charter of the City of Manila, and praying
that the complaint be dismissed, with costs against plaintiff. This
answer was replied by the plaintiff reiterating the
unconstitutionality of the often-repeated ordinances.
Before trial the parties submitted the following stipulation of facts:
COME NOW the parties in the above-entitled case, thru
their undersigned attorneys and respectfully submit the
following stipulation of facts:
1. That the plaintiff sold for the use of the purchasers at its
principal office at 636 Isaac Peral, Manila, Bibles, New
Testaments, bible portions and bible concordance in
English and other foreign languages imported by it from
the United States as well as Bibles, New Testaments and
bible portions in the local dialects imported and/or
purchased locally; that from the fourth quarter of 1945 to

the first quarter of 1953 inclusive the sales made by the

plaintiff were as follows:
Quarter
4th quarter 1945
1st quarter 1946
2nd quarter 1946
3rd quarter 1946
4th quarter 1946
1st quarter 1947
2nd quarter 1947
3rd quarter 1947
4th quarter 1947
1st quarter 1948
2nd quarter 1948
3rd quarter 1948
4th quarter 1948
1st quarter 1949
2nd quarter 1949
3rd quarter 1949
4th quarter 1949
1st quarter 1950
2nd quarter 1950
3rd quarter 1950
4th quarter 1950
1st quarter 1951
2nd quarter 1951
3rd quarter 1951
4th quarter 1951
1st quarter 1952
2nd quarter 1952
3rd quarter 1952
4th quarter 1952
1st quarter 1953

Amount of Sales
P1,244.21
2,206.85
1,950.38
2,235.99
3,256.04
13,241.07
15,774.55
14,654.13
12,590.94
11,143.90
14,715.26
38,333.83
16,179.90
23,975.10
17,802.08
16,640.79
15,961.38
18,562.46
21,816.32
25,004.55
45,287.92
37,841.21
29,103.98
20,181.10
22,968.91
23,002.65
17,626.96
17,921.01
24,180.72
29,516.21

2. That the parties hereby reserve the right to present

evidence of other facts not herein stipulated.
WHEREFORE, it is respectfully prayed that this case be
set for hearing so that the parties may present further
evidence on their behalf. (Record on Appeal, pp. 15-16).
When the case was set for hearing, plaintiff proved, among other
things, that it has been in existence in the Philippines since 1899,
and that its parent society is in New York, United States of
America; that its, contiguous real properties located at Isaac Peral
are exempt from real estate taxes; and that it was never required to
pay any municipal license fee or tax before the war, nor does the
American Bible Society in the United States pay any license fee or
sales tax for the sale of bible therein. Plaintiff further tried to
establish that it never made any profit from the sale of its bibles,
which are disposed of for as low as one third of the cost, and that in
order to maintain its operating cost it obtains substantial
remittances from its New York office and voluntary contributions
and gifts from certain churches, both in the United States and in
the Philippines, which are interested in its missionary work.
Regarding plaintiff's contention of lack of profit in the sale of bibles,
defendant retorts that the admissions of plaintiff-appellant's lone
witness who testified on cross-examination that bibles bearing the
price of 70 cents each from plaintiff-appellant's New York office are
sold here by plaintiff-appellant at P1.30 each; those bearing the
price of $4.50 each are sold here at P10 each; those bearing the
price of $7 each are sold here at P15 each; and those bearing the
price of $11 each are sold here at P22 each, clearly show that

plaintiff's contention that it never makes any profit from the sale of
its bible, is evidently untenable.

forever be allowed. No religion test shall be required for

the exercise of civil or political rights.

After hearing the Court rendered judgment, the last part of which
is as follows:

Predicated on this constitutional mandate, plaintiff-appellant

contends that Ordinances Nos. 2529 and 3000, as respectively
amended, are unconstitutional and illegal in so far as its society is
concerned, because they provide for religious censorship and
restrain the free exercise and enjoyment of its religious profession,
to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines.

As may be seen from the repealed section (m-2) of the

Revised Administrative Code and the repealing portions (o)
of section 18 of Republic Act No. 409, although they
seemingly differ in the way the legislative intent is
expressed, yet their meaning is practically the same for the
purpose of taxing the merchandise mentioned in said legal
provisions, and that the taxes to be levied by said
ordinances is in the nature of percentage graduated taxes
(Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1,
Group 2, of Ordinance No. 2529, as amended by Ordinance
No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS,
this Court is of the opinion and so holds that this case
should be dismissed, as it is hereby dismissed, for lack of
merits, with costs against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the
Court of Appeals which certified the case to Us for the reason that
the errors assigned to the lower Court involved only questions of
law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as
respectively amended, are not unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the
Revised Administrative Code under which Ordinances Nos.
2592 and 3000 were promulgated, was not repealed by
Section 18 of Republic Act No. 409;
3. In not holding that an ordinance providing for taxes
based on gross sales or receipts, in order to be valid under
the new Charter of the City of Manila, must first be
approved by the President of the Philippines; and
4. In holding that, as the sales made by the plaintiffappellant have assumed commercial proportions, it cannot
escape from the operation of said municipal ordinances
under the cloak of religious privilege.
The issues. As may be seen from the proceeding statement of the
case, the issues involved in the present controversy may be reduced
to the following: (1) whether or not the ordinances of the City of
Manila, Nos. 3000, as amended, and 2529, 3028 and 3364, are
constitutional and valid; and (2) whether the provisions of said
ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the
Republic of the Philippines, provides that:
(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

Before entering into a discussion of the constitutional aspect of the

case, We shall first consider the provisions of the questioned
ordinances in relation to their application to the sale of bibles, etc.
by appellant. The records, show that by letter of May 29, 1953
(Annex A), the City Treasurer required plaintiff to secure a Mayor's
permit in connection with the society's alleged business of
distributing and selling bibles, etc. and to pay permit dues in the
sum of P35 for the period covered in this litigation, plus the sum of
P35 for compromise on account of plaintiff's failure to secure the
permit required by Ordinance No. 3000 of the City of Manila, as
amended. This Ordinance is of general application and not
particularly directed against institutions like the plaintiff, and it
does not contain any provisions whatever prescribing religious
censorship nor restraining the free exercise and enjoyment of any
religious profession. Section 1 of Ordinance No. 3000 reads as
follows:
SEC. 1. PERMITS NECESSARY. It shall be unlawful
for any person or entity to conduct or engage in any of the
businesses, trades, or occupations enumerated in Section 3
of this Ordinance or other businesses, trades, or
occupations for which a permit is required for the proper
supervision and enforcement of existing laws and
ordinances governing the sanitation, security, and welfare
of the public and the health of the employees engaged in the
business specified in said section 3 hereof, WITHOUT
FIRST HAVING OBTAINED A PERMIT THEREFOR
FROM THE MAYOR AND THE NECESSARY LICENSE
FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this
case is not particularly mentioned in Section 3 of the Ordinance,
and the record does not show that a permit is required therefor
under existing laws and ordinances for the proper supervision and
enforcement of their provisions governing the sanitation, security
and welfare of the public and the health of the employees engaged
in the business of the plaintiff. However, sections 3 of Ordinance
3000 contains item No. 79, which reads as follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the
power of the City to license or tax said business, trade or
occupation.
As to the license fees that the Treasurer of the City of Manila
required the society to pay from the 4th quarter of 1945 to the 1st
quarter of 1953 in the sum of P5,821.45, including the sum of P50
as compromise, Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028 prescribes the following:

SEC. 1. FEES. Subject to the provisions of section 578 of

the Revised Ordinances of the City of Manila, as amended,
there shall be paid to the City Treasurer for engaging in
any of the businesses or occupations below enumerated,
quarterly, license fees based on gross sales or receipts
realized during the preceding quarter in accordance with
the rates herein prescribed: PROVIDED, HOWEVER, That
a person engaged in any businesses or occupation for the
first time shall pay the initial license fee based on the
probable gross sales or receipts for the first quarter
beginning from the date of the opening of the business as
indicated herein for the corresponding business or
occupation.
xxx

xxx

xxx

GROUP 2. Retail dealers in new (not yet used)

merchandise, which dealers are not yet subject to the
payment of any municipal tax, such as (1) retail dealers in
general merchandise; (2) retail dealers exclusively engaged
in the sale of . . . books, including stationery.
xxx

xxx

xxx

As may be seen, the license fees required to be paid quarterly in

Section 1 of said Ordinance No. 2529, as amended, are not imposed
directly upon any religious institution but upon those engaged in
any of the business or occupations therein enumerated, such as
retail "dealers in general merchandise" which, it is alleged, cover
the business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes
section 2444, subsection (m-2) of said legal body, as amended by Act
No. 3659, approved on December 8, 1929, empowers the Municipal
Board of the City of Manila:
(M-2) To tax and fix the license fee on (a) dealers in new
automobiles or accessories or both, and (b) retail dealers in
new (not yet used) merchandise, which dealers are not yet
subject to the payment of any municipal tax.
For the purpose of taxation, these retail dealers shall be
classified as (1) retail dealers in general merchandise, and
(2) retail dealers exclusively engaged in the sale of (a)
textiles . . . (e) books, including stationery, paper and office
supplies, . . .: PROVIDED, HOWEVER, That the combined
total tax of any debtor or manufacturer, or both,
enumerated under these subsections (m-1) and (m-2),
whether dealing in one or all of the articles mentioned
herein, SHALL NOT BE IN EXCESS OF FIVE
HUNDRED PESOS PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529
and 3000, as amended, were enacted in virtue of the power that
said Act No. 3669 conferred upon the City of Manila. Appellant,
however, contends that said ordinances are longer in force and
effect as the law under which they were promulgated has been
expressly repealed by Section 102 of Republic Act No. 409 passed
on June 18, 1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that
Republic Act No. 409 expressly repealed the provisions of Chapter
60 of the Revised Administrative Code but in the opinion of the
trial Judge, although Section 2444 (m-2) of the former Manila

Charter and section 18 (o) of the new seemingly differ in the way
the legislative intent was expressed, yet their meaning is
practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances
Nos. 2529 and 3000, as amended, are to be considered as still in full
force and effect uninterruptedly up to the present.
Often the legislature, instead of simply amending the preexisting statute, will repeal the old statute in its entirety
and by the same enactment re-enact all or certain portions
of the preexisting law. Of course, the problem created by
this sort of legislative action involves mainly the effect of
the repeal upon rights and liabilities which accrued under
the original statute. Are those rights and liabilities
destroyed or preserved? The authorities are divided as to
the effect of simultaneous repeals and re-enactments.
Some adhere to the view that the rights and liabilities
accrued under the repealed act are destroyed, since the
statutes from which they sprang are actually terminated,
even though for only a very short period of time. Others,
and they seem to be in the majority, refuse to accept this
view of the situation, and consequently maintain that all
rights an liabilities which have accrued under the original
statute are preserved and may be enforced, since the reenactment neutralizes the repeal, therefore, continuing the
law in force without interruption. (Crawford-Statutory
Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No,
409 introduces a new and wider concept of taxation and is different
from the provisions of Section 2444(m-2) that the former cannot be
considered as a substantial re-enactment of the provisions of the
latter. We have quoted above the provisions of section 2444(m-2) of
the Revised Administrative Code and We shall now copy hereunder
the provisions of Section 18, subdivision (o) of Republic Act No. 409,
which reads as follows:
(o) To tax and fix the license fee on dealers in general
merchandise, including importers and indentors, except
those dealers who may be expressly subject to the payment
of some other municipal tax under the provisions of this
section.
Dealers in general merchandise shall be classified as (a)
wholesale dealers and (b) retail dealers. For purposes of
the tax on retail dealers, general merchandise shall be
classified into four main classes: namely (1) luxury articles,
(2) semi-luxury articles, (3) essential commodities, and (4)
miscellaneous articles. A separate license shall be
prescribed for each class but where commodities of
different classes are sold in the same establishment, it
shall not be compulsory for the owner to secure more than
one license if he pays the higher or highest rate of tax
prescribed by ordinance. Wholesale dealers shall pay the
license tax as such, as may be provided by ordinance.
For purposes of this section, the term "General
merchandise" shall include poultry and livestock,
agricultural products, fish and other allied products.
The only essential difference that We find between these two
provisions that may have any bearing on the case at bar, is that,
while subsection (m-2) prescribes that the combined total tax of any
dealer or manufacturer, or both, enumerated under subsections (m1) and (m-2), whether dealing in one or all of the articles mentioned

therein,shall not be in excess of P500 per annum, the corresponding

section 18, subsection (o) of Republic Act No. 409, does not contain
any limitation as to the amount of tax or license fee that the retail
dealer has to pay per annum. Hence, and in accordance with the
weight of the authorities above referred to that maintain that "all
rights and liabilities which have accrued under the original statute
are preserved and may be enforced, since the reenactment
neutralizes the repeal, therefore continuing the law in force without
interruption", We hold that the questioned ordinances of the City of
Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be
valid, must first be approved by the President of the Philippines as
per section 18, subsection (ii) of Republic Act No. 409, which reads
as follows:
(ii) To tax, license and regulate any business, trade or
occupation being conducted within the City of Manila,not
otherwise enumerated in the preceding subsections,
including percentage taxes based on gross sales or receipts,
subject to the approval of the PRESIDENT, except
amusement taxes.
but this requirement of the President's approval was not contained
in section 2444 of the former Charter of the City of Manila under
which Ordinance No. 2529 was promulgated. Anyway, as stated by
appellee's counsel, the business of "retail dealers in general
merchandise" is expressly enumerated in subsection (o), section 18
of Republic Act No. 409; hence, an ordinance prescribing a
municipal tax on said business does not have to be approved by the
President to be effective, as it is not among those referred to in said
subsection (ii). Moreover, the questioned ordinances are still in
force, having been promulgated by the Municipal Board of the City
of Manila under the authority granted to it by law.
The question that now remains to be determined is whether said
ordinances are inapplicable, invalid or unconstitutional if applied to
the alleged business of distribution and sale of bibles to the people
of the Philippines by a religious corporation like the American Bible
Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances
Nos. 2779, 2821 and 3028, appellant contends that it is
unconstitutional and illegal because it restrains the free exercise
and enjoyment of the religious profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the
Philippines aforequoted, guarantees the freedom of religious
profession and worship. "Religion has been spoken of as a
profession of faith to an active power that binds and elevates man
to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has reference to
one's 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 (Davis vs. Beason, 133 U.S., 342). The constitutional
guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious
information. Any restraints 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". (Taada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case
at bar the license fee herein involved is imposed upon appellant for
its distribution and sale of bibles and other religious literature:

In the case of Murdock vs. Pennsylvania, it was held that

an ordinance requiring that a license be obtained before a
person could canvass or solicit orders for goods, paintings,
pictures, wares or merchandise cannot be made to apply to
members of Jehovah's Witnesses who went about from
door to door distributing literature and soliciting people to
"purchase" certain religious books and pamphlets, all
published by the Watch Tower Bible & Tract Society. The
"price" of the books was twenty-five cents each, the "price"
of the pamphlets five cents each. It was shown that in
making the solicitations there was a request for additional
"contribution" of twenty-five cents each for the books and
five cents each for the pamphlets. Lesser sum were
accepted, however, and books were even donated in case
interested persons were without funds.
On the above facts the Supreme Court held that it could
not be said that petitioners were engaged in commercial
rather than a religious venture. Their activities could not
be described as embraced in the occupation of selling books
and pamphlets. Then the Court continued:
"We do not mean to say that religious groups and the press
are free from all financial burdens of government.
See Grosjean vs. American Press Co., 297 U.S., 233, 250, 80
L. ed. 660, 668, 56 S. Ct. 444. We have here something
quite different, for example, from a tax on the income of
one who engages in religious activities or a tax on property
used or employed in connection with activities. It is one
thing to impose a tax on the income or property of a
preacher. It is quite another to exact a tax from him for the
privilege of delivering a sermon. The tax imposed by the
City of Jeannette is a flat license tax, payment of which is
a condition of the exercise of these constitutional
privileges. The power to tax the exercise of a privilege is
the power to control or suppress its enjoyment. . . . Those
who can tax the exercise of this religious practice can make
its exercise so costly as to deprive it of the resources
necessary for its maintenance. Those who can tax the
privilege of engaging in this form of missionary evangelism
can close all its doors to all those who do not have a full
purse. Spreading religious beliefs in this ancient and
honorable manner would thus be denied the needy. . . .
It is contended however that the fact that the license tax
can suppress or control this activity is unimportant if it
does not do so. But that is to disregard the nature of this
tax. It is a license tax a flat tax imposed on the exercise
of a privilege granted by the Bill of Rights . . . The power to
impose a license tax on the exercise of these freedom is
indeed as potent as the power of censorship which this
Court has repeatedly struck down. . . . It is not a nominal
fee imposed as a regulatory measure to defray the
expenses of policing the activities in question. It is in no
way apportioned. It is flat license tax levied and collected
as a condition to the pursuit of activities whose enjoyment
is guaranteed by the constitutional liberties of press and
religion and inevitably tends to suppress their exercise.
That is almost uniformly recognized as the inherent vice
and evil of this flat license tax."
Nor could dissemination of religious information be
conditioned upon the approval of an official or manager
even if the town were owned by a corporation as held in
the case of Marsh vs. State of Alabama (326 U.S. 501), or

by the United States itself as held in the case of Tucker vs.

Texas (326 U.S. 517). In the former case the Supreme
Court expressed the opinion that the right to enjoy
freedom of the press and religion occupies a preferred
position as against the constitutional right of property
owners.
"When we balance the constitutional rights of owners of
property against those of the people to enjoy freedom of
press and religion, as we must here, we remain mindful of
the fact that the latter occupy a preferred position. . . . In
our view the circumstance that the property rights to the
premises where the deprivation of property here involved,
took place, were held by others than the public, is not
sufficient to justify the State's permitting a corporation to
govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such
restraint by the application of a State statute." (Taada
and Fernando on the Constitution of the Philippines, Vol.
1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the
National Internal Revenue Code, provides:
SEC.
27.
EXEMPTIONS
FROM
TAX
ON
CORPORATIONS. The following organizations shall not
be taxed under this Title in respect to income received by
them as such
(e) Corporations or associations organized and operated
exclusively for religious, charitable, . . . or educational
purposes, . . .: Provided, however, That the income of
whatever kind and character from any of its properties,
real or personal, or from any activity conducted for profit,
regardless of the disposition made of such income, shall be
liable to the tax imposed under this Code;
Appellant's counsel claims that the Collector of Internal Revenue
has exempted the plaintiff from this tax and says that such
exemption clearly indicates that the act of distributing and selling
bibles, etc. is purely religious and does not fall under the above
legal provisions.
It may be true that in the case at bar the price asked for the bibles
and other religious pamphlets was in some instances a little bit
higher than the actual cost of the same but this cannot mean that
appellant was engaged in the business or occupation of selling said
"merchandise" for profit. For this reason We believe that the
provisions of City of Manila Ordinance No. 2529, as amended,
cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and worship
as well as its rights of dissemination of religious beliefs.
With respect to Ordinance No. 3000, as amended, which requires
the obtention the Mayor's permit before any person can engage in
any of the businesses, trades or occupations enumerated therein,
We do not find that it imposes any charge upon the enjoyment of a
right granted by the Constitution, nor tax the exercise of religious
practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427,
this point was elucidated as follows:
An ordinance by the City of Griffin, declaring that the
practice of distributing either by hand or otherwise,
circulars, handbooks, advertising, or literature of any kind,

whether said articles are being delivered free, or whether

same are being sold within the city limits of the City of
Griffin, without first obtaining written permission from the
city manager of the City of Griffin, shall be deemed a
nuisance and punishable as an offense against the City of
Griffin, does not deprive defendant of his constitutional
right of the free exercise and enjoyment of religious
profession and worship, even though it prohibits him from
introducing and carrying out a scheme or purpose which he
sees fit to claim as a part of his religious system.
It seems clear, therefore, that Ordinance No. 3000 cannot be
considered unconstitutional, even if applied to plaintiff Society. But
as Ordinance No. 2529 of the City of Manila, as amended, is not
applicable to plaintiff-appellant and defendant-appellee is
powerless to license or tax the business of plaintiff Society involved
herein for, as stated before, it would impair plaintiff's right to the
free exercise and enjoyment of its religious profession and worship,
as well as its rights of dissemination of religious beliefs, We find
that Ordinance No. 3000, as amended is also inapplicable to said
business, trade or occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We
hereby reverse the decision appealed from, sentencing defendant
return to plaintiff the sum of P5,891.45 unduly collected from it.
Without pronouncement as to costs. It is so ordered.
Bengzon, Padilla, Montemayor, Bautista
Concepcion and Endencia, JJ., concur.

Angelo,

Labrador,

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG, represented by
their parents MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father AMOS
TANTOG; JEMILOYAO & JOEL OYAO, represented by their
parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS &
JEREMIAS DIAMOS, represented by parents MR. & MRS.
GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA,
represented by their parents MR. & MRS. FAUTO OSTIA;
IRVIN SEQUINO & RENAN SEQUINO, represented by their
parents MR. & MRS. LYDIO SEQUINO; NAPTHALE
TANACAO, represented by his parents MR. & MRS.
MANUEL TANACAO; PRECILA PINO, represented by her
parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR,
RUWINA ALFAR, represented by their parents MR. & MRS.
HERMINIGILDO ALFAR; FREDESMINDA ALFAR &
GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR,
represented by their parents MR. & MRS. GENEROSO
ALFAR; MARTINO VILLAR, represented by his parents MR.
& MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. &
MRS. CESAR GUINITA; ALVIN DOOP, represented by his
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE,
represented by her parents MR. & MRS. RENE LAUDE;

LEOREMINDA MONARES, represented by her parents, MR.

& MRS. FLORENCIO MONARES; MERCY MONTECILLO,
represented by her parents MR. & MRS. MANUEL
MONTECILLO; ROBERTO TANGAHA, represented by his
parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA
TANGAHA, represented by their parents MR. & MRS.
ALBERTO TANGAHA; MAXIMO EBRALINAG, represented
by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA
CUMON, GIDEON CUMON & JONATHAN CUMON,
represented by their father RAFAEL CUMON; EVIE
LUMAKANG & JUNAR LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ
AMOR SARSOZO & IGNA MARIE SARSOZO, represented by
their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL
JOSEPH & HENRY JOSEPH, represented by parent ANNIE
JOSEPH;
EMERSON
TABLASON
&
MASTERLOU
TABLASON, represented by their parent EMERLITO
TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, respondent.
G.R. No. 95887 March 1, 1993
MAY AMOLO, represented by her parents MR. & MRS.
ISAIAS AMOLO; REDFORD ALSADO, JOEBERT ALSADO &
RUDYARD ALSADO, represented by their parents MR. &
MRS. ABELARDO ALSADO; NELIA ALSADO, REU ALSADO
& LILIBETH ALSADO, represented by their parents MR. &
MRS.
ROLANDO
ALSADO;
SUZETTE
NAPOLES,
represented by her parents ISMAILITO NAPOLES &
OPHELIA NAPOLES; JESICA CARMELOTES, represented
by her parents MR. & MRS. SERGIO CARMELOTES; BABY
JEAN MACAPAS, represented by her parents MR. & MRS.
TORIBIO MACAPAS; GERALDINE ALSADO, represented by
her parents MR. & MRS. JOEL ALSADO; RAQUEL
DEMOTOR & LEAH DEMOTOR, represented by their
parents MR. & MRS. LEONARDO DEMOTOR; JURELL
VILLA & MELONEY VILLA, represented by their parents
MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY,
MARY GRACE MAHINAY and MAGDALENE MAHINAY,
represented by their parents MR. & MRS. FELIX MAHINAY;
JONALYN ANTIOLA and JERWIN ANTIOLA, represented
by their parents FELIFE ANTIOLA and ANECITA ANTIOLA;
MARIA CONCEPCION CABUYAO, represented by her
parents WENIFREDO CABUYAO and ESTRELLITA
CABUYAO, NOEMI TURNO represented by her parents
MANUEL TURNO and VEVENCIA TURNO; SOLOMON
PALATULON, SALMERO PALATULON and ROSALINDA
PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU and ANTONIO A. SANGUTAN, respondents.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP; FUNDAMENTAL
RIGHT ENTITLED TO HIGHEST PRIORITY AND AMPLEST

PROTECTION: TWO-FOLD ASPECT THEREOF. 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 (Chief Justice
Enrique M. Fernandos separate opinion in German v. Barangan,
135 SCRA 514, 530-531). "The right to religious profession and
worship has a two-fold aspect, vis., freedom to believe and freedom
to act on ones belief. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to
regulation where the belief is translated into external acts that
affect the public welfare" (J. Cruz, Constitutional Law, 1991 Ed.,
pp. 176-177).
2. ID.; ID.; ID.; ID.; SOLE JUSTIFICATION FOR PRIOR
RESTRAINT OR LIMITATION ON EXERCISE OF RELIGIOUS
FREEDOM; CASE AT BAR. "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. . . . 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, science, 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 for 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 had 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 condusive to love of country or respect for duly
constituted authorities. As Mr. Justice Jackson remarked in West
Virginia v. Barneta, 319 U.S. 624 (1943): ". . . To believe that
patriotism will not flourish if patriotic ceremonies are voluntary
and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds.
. . . When they [diversity] are so harmless to others or to the State
as those we deal with here, the price is not too great. But freedom
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." "Furthermore, let it be noted that coerced unity and loyalty
even to the country, . . . 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 and cannot be promoted by prohibited means." (Meyer v.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.).
3. ID.; ID.; ID.; ID.; EMPLOYEES EXEMPTION FROM
COVERAGE OF CLOSED SHOP AGREEMENT ON ACCOUNT
OF RELIGIOUS BELIEFS VALID SIMILAR EXEMPTION
ACCORDED JEHOVAHS WITNESSES WITH REGARD TO
OBSERVANCE OF FLAG CEREMONY VALID. In Victoriano v.
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
labor group.." . . 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 interests intervenes." (Sherbert v.
Berner 374 U.S. Ct. 1790.) We hold that a similar exemptions 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.
Nevertheless, their right not to participate in the flag ceremony
does not give them a right to disrupt such patriotic exercises.
Paraphrasing the warning cited by this Court in Non. v. Dames II,
185 SCRA 523, 535, while the highest regard must be afforded their
right to the exercise of their religion, "this should not be taken to
mean that school authorities are powerless to discipline them" if
they should commit breaches of the peace by actions that offend the
sensibilities, both religious and patriotic, of other persons. If they
quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem
and recite the patriotic pledge, we do not see how such conduct may
possibly disturb the peace, or pose "a grave and present danger 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" (German v. Barangan, 135 SCRA 514, 517).
4. ID.; RIGHT TO FREE PUBLIC EDUCATION; EXPULSION OF
JEHOVAHS WITNESSES FROM SCHOOL FOR NONOBSERVANCE OF FLAG CEREMONY A VIOLATION THEREOF.
The expulsion of members of Jehovahs Witnesses from the
schools where they are enrolled will violate their right as Philippine
citizens, under the 1987 Constitution, to receive free education, for
it is the duty of the State to "protect and promote the right of all
citizens to quality education . . . and to make such education
accessible to all" (Sec. 1, Art. XIV).
CRUZ, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP; FREEDOM TO
BELIEVE; ABSOLUTE AS LONG AS BELIEFS NOT
EXTERNALIZED IN ACTS THAT OFFEND PUBLIC INTEREST.
It seems to me that every individual is entitled to choose for
himself whom or what to worship or whether to worship at all. This
is a personal decision he alone can make. The individual may
worship a spirit or a person or a beast or a tree (or a flag), and the
State cannot prevent him from doing so. For that matter, neither
can it compel him to do so. As long as his beliefs are not
externalized in acts that offend the public interest, he cannot be
prohibited from harboring them or punished for doing so.
In requiring the herein petitioners to participate in the flag
ceremony, the State has declared ex cathedra that they are not
violating the Bible by saluting the flag. This is to me an
unwarranted intrusion into their religious beliefs, which tell them
the opposite. The State cannot interpret the Bible for them; only
they can read it as they see fit. Right or wrong, the meaning they
derive from it cannot be revised or reversed except perhaps by their
own acknowledged superiors. But certainly not the State. It has no
competence in this matter. Religion is forbidden territory that the
State, for all its power and authority, cannot invade.
I am not unaware of Justice Frankfurters admonition that "the
constitutional protection of religious freedom terminated
disabilities, it did not create new privileges. It 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."cralaw virtua1aw library

2. ID.; ID.; FREEDOM OF SPEECH; INCLUDES RIGHT TO BE

SILENT; SALUTE AS FORM OF EXPRESSION CANNOT BE
COMPELLED OR PROHIBITED IN FACE OF VALID
RELIGIOUS OBJECTIONS. Freedom of speech includes the
right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind
also guarantees to him the liberty not to utter what is not in his
mind. The salutes is a symbolic manner of communication that
conveys its message as clearly as the written or spoken word. As a
valid form of expression, it cannot be compelled any more than it
can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny
them the right not to speak when their religion bids them to be
silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse
ideas, including the unconventional and even the bizarre or
eccentric. The will of the majority prevails, but it cannot regiment
thought by prescribing the recitation by rote of its opinions or
prescribing the assertion of unorthodox or unpopular views as in
this case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected
by the Constitution. The State cannot make the individual speak
when the soul within rebels.
PADILLA, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO
RELIGIOUS PROFESSION AND WORSHIP; HARMONIZED
WITH VALID EXERCISE OF THE STATES FUNDAMENTAL
AND LEGITIMATE AUTHORITY TO REQUIRE HOMAGE AND
HONOR TO THE FLAG. In fine, the flag ceremony is a
legitimate means to achieve legitimate (and noble) ends. For a
select few to be exempt from the flag ceremony and all that it
represents even if the exemption is predicated on respect for
religious scruples, could be divisive in its impact on the school
population or community. I would therefore submit that,
henceforth, teachers and students who because of religious scruples
or beliefs cannot actively participate in the flag ceremony conducted
in the school premises should be excluded beforehand from such
ceremony. Instead of allowing the religious objector to attend the
flag ceremony and display therein his inability to salute the flag,
sing the national anthem and recite the pledge of loyalty to the
Republic, he or she should remain in the classroom while honors to
the flag are conducted and manifested in the "quadrangle" or
equivalent place within school premises; or if the flag ceremony
must be held in a hall, the religious objector must take his or her
place at the rear of (or outside) the hall while those who actively
participate in the ceremony must take the front places. This
arrangement can, in my view, achieve an accommodation and, to a
certain extent, harmonization of a citizens constitutional right to
freedom of religion and a valid exercise of the States fundamental
and legitimate authority to require homage and honor to the flag as
the symbol of the Nation.

DECISION
GRIO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and
Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members or a religious
sect known as Jehovah's Witnesses may be expelled from school
(both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by

a band) or singing the Philippine national anthem, saluting the

Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division
Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu
District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan Cebu province. All minors,
they are assisted by their parents who belong to the religious group
known as Jehovah's Witnesses which claims some 100,000
"baptized publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent
of Schools of Cebu and Antonio A. Sangutan," the petitioners are 25
high school and grade school students enrolled in public schools in
Asturias, Cebu, whose parents are Jehovah's Witnesses. Both
petitions were prepared by the same counsel, Attorney Felino M.
Ganal.
All the petitioners in these two cases were expelled from their
classes by the public school authorities in Cebu for refusing to
salute the flag, sing the national anthem and recite the patriotic
pledge as required by Republic Act No. 1265 of July 11, 1955, and
by Department Order No. 8 dated July 21, 1955 of the Department
of Education, Culture and Sports (DECS) making the flag ceremony
compulsory in all educational institutions. Republic Act No. 1265
provides:
Sec. 1. All educational institutions shall
henceforth observe daily flag ceremony, which
shall be simple and dignified and shall include the
playing or singing of the Philippine National
anthem.
Sec. 2. The Secretary of Education is hereby
authorized and directed to issue or cause to be
issued rules and regulations for the proper
conduct of the flag ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag
ceremony provided by this Act and in accordance
with rules and regulations issued by the Secretary
of
Education,
after
proper
notice
and
hearing, shall subject the educational institution
concerned and its head to public censure as an
administrative punishment which shall be
published at least once in a newspaper of general
circulation.
In case of failure to observe for the second time the
flag-ceremony provided by this Act, the Secretary
of
Education,
after
proper
notice
and
hearing, shall cause the cancellation of the
recognition or permit of the private educational
institution responsible for such failure.
The implementing rules and regulations in Department Order No.
8 provide:
RULES
AND
REGULATIONS
FOR
CONDUCTING THE FLAG CEREMONY IN ALL
EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all

educational institutions, public and private, every
school day throughout the year. It shall be raised
at sunrise and lowered at sunset. The flag-staff
must be straight, slightly and gently tapering at
the end, and of such height as would give the Flag
a commanding position in front of the building or
within the compound.
2. Every public and private educational institution
shall hold a flag-raising ceremony every morning
except when it is raining, in which event the
ceremony may be conducted indoors in the best
way possible. A retreat shall be held in the
afternoon of the same day. The flag-raising
ceremony in the morning shall be conducted in the
following manner:
a.
Pupils
and
teachers or
students
and
faculty
members who are in school and
its premises shall assemble in
formation facing the flag. At
command, books shall be put
away or held in the left hand
and everybody shall come to
attention. Those with hats shall
uncover. No one shall enter or
leave the school grounds during
the ceremony.
b. The assembly shall sing the
Philippine
National
Anthem accompanied by
the
school band or without the
accompaniment if it has none; or
the anthem may be played by the
school band alone. At the first
note of the Anthem, the flag
shall be raised briskly. While the
flag is being raised, all persons
present shall stand at attention
and execute a salute. Boys and
men with hats shall salute by
placing the hat over the heart.
Those without hat may stand
with their arms and hands down
and straight at the sides. Those
in military or Boy Scout uniform
shall give the salute prescribed
by their regulations. The salute
shall be started as the Flag rises,
and completed upon last note of
the anthem.
c. Immediately following the
singing of the Anthem, the
assembly shall recite in unison
the
following
patriotic
pledge (English or vernacular
version), which may bring the
ceremony to a close. This is
required of all public schools and
of private schools which are
intended for Filipino students or

whose
population
predominantly Filipino.

is

English Version
I
love
the
Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to
be, strong, happy and useful.
In return, I will heed the counsel
of
my
parents;
I will obey the rules of my school;
I will perform the duties of a
patriotic, law-abiding citizen;
I will serve my country
unselfishly
and
faithfully;
I will be a true, Filipino in
thought, in word, in deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute
the flag, sing the national anthem, and recite the patriotic pledge
for they believe that those are "acts of worship" or "religious
devotion" (p. 10, Rollo) which they "cannot conscientiously give . . .
to anyone or anything except God" (p. 8, Rollo). They feel bound by
the
Bible's
command
to
"guard
ourselves
from
idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an
image or idol representing the State (p. 10, Rollo). They think the
action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on the State's power
and invades the sphere of the intellect and spirit which the
Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children
of Jehovah's Witnesses may be expelled from school for
disobedience of R.A. No. 1265 and Department Order No. 8, series
of 1955, has been raised before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of
Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs.
Secretary of Education, 110 Phil. 150 (1960). This Court in the
Gerona case upheld the expulsion of the students, thus:
The flag is not an image but a symbol of the
Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution
guarantee and protect. Under a system of
complete separation of church and state in the
government, the flag is utterly devoid of any
religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is
no more a religious ceremony than the taking of
an oath of office by a public official or by a
candidate for admission to the bar.
In requiring school pupils to participate in the flag
salute, the State thru the Secretary of Education
is not imposing a religion or religious belief or a
religious test on said students. It is merely
enforcing
a
non-discriminatory school regulation applicable to

all alike whether Christian, Moslem, Protestant or

Jehovah's Witness. The State is merely carrying
out the duty imposed upon it by the Constitution
which charges it with supervision over and
regulation of all educational institutions, to
establish and maintain a complete and adequate
system of public education, and see to it that all
schools aim to develop, among other things, civic
conscience and teach the duties of citizenship.
The children of Jehovah's Witnesses cannot be
exempted from participation in the flag ceremony.
They have no valid right to such exemption.
Moreover, exemption to the requirement will
disrupt school discipline and demoralize the rest
of the school population which by far constitutes
the great majority.
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption
from or non-compliance with reasonable and nondiscriminatory laws, rules and regulations
promulgated by competent authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized
by the Legislature thru Republic Act 1265 to
promulgate said Department Order, and its
provisions requiring the observance of the flag
salute, not being a religious ceremony but an act
and profession of love and allegiance and pledge of
loyalty to the fatherland which the flag stands for,
does not violate the constitutional provision on
freedom of religion. (Balbuna, et al. vs. Secretary
of Education, et al., 110 Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been
incorporated in Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive Order No. 292) which took
effect on September 21, 1988 (one year after its publication in the
Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph
5 of Section 28 gives legislative cachet to the ruling in Gerona, thus:
5. Any teacher or student or pupil who refuses to
join or participate in the flag ceremony may be
dismissed after due investigation.
However, the petitioners herein have not raised in issue the
constitutionality of the above provision of the new Administrative
Code of 1987. They have targeted only Republic Act No. 1265 and
the implementing orders of the DECS.
In 1989, the DECS Regional Office in Cebu received complaints
about teachers and pupils belonging to the Jehovah's Witnesses,
and enrolled in various public and private schools, who refused to
sing the Philippine national anthem, salute the Philippine flag and
recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty.
Marcelo M. Bacalso, Assistant Division Superintendent, recalling
this Court's decision in Gerona, issued Division Memorandum No.
108, dated November 17, 1989 (pp. 147-148, Rollo of G.R. No.
95770) directing District Supervisors, High School Principals and
Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there

are a number of teachers, pupils, students, and
school employees in public schools who refuse to
salute the Philippine flag or participate in the
daily flag ceremony because of some religious
belief.
2. Such refusal not only undermines Republic Act
No. 1265 and the DECS Department Order No. 8,
Series of 1955 (Implementing Rules and
Regulations) but also strikes at the heart of the
DECS sustained effort to inculcate patriotism and
nationalism.
3. Let it be stressed that any belief that considers
the flag as an image is not in any manner
whatever a justification for not saluting the
Philippine flag or not participating in flag
ceremony. Thus, the Supreme Court of the
Philippine says:
The flag is not an image but a
symbol of the Republic of the
Philippines, an emblem of
national sovereignty, of national
unity and cohesion and freedom
and liberty which it and the
Constitution
guarantee
and
protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)
4. As regards the claim for freedom of belief,
which an objectionist may advance, the Supreme
Court asserts:
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. (Gerona, et al.
vs. Sec. of Education, et al., 106
Phil. 11.)
5. Accordingly, teachers and school employees who
choose not to participate in the daily flag ceremony
or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be
considered removed from the service after due
process.
6. In strong language about pupils and students
who do the same the Supreme Court has this to
say:
If they choose not to obey the
flag salute regulation, they
merely lost the benefits of public
education being maintained at
the expense of their fellow
Citizens,
nothing
more.

According
to
a
popular
expression, they could take it or
leave it! Having elected not to
comply with the regulation about
the flag salute they forfeited
their right to attend public
schools. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to
this Office a report on those who choose not to
participate in flag ceremony or salute the
Philippine flag. (pp. 147-148, Rollo of G.R. No.
95770; Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade the
children of Jehovah's Witnesses to obey the memorandum. In the
Buenavista Elementary School, the children were asked to sign an
Agreement (Kasabutan) in the Cebuano dialect promising to sing
the national anthem, place their right hand on their breast until
the end of the song and recite the pledge of allegiance to the flag
(Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No.
95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of
G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge,
Antonio A. Sangutan, met with the Jehovah's Witnesses' parents,
as disclosed in his letter of October 17, 1990, excerpts from which
reveal the following:
After two (2) fruitless confrontation meetings with
the Jehovah's Witnesses' parents on October 2,
1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as
mandated by law specifically Republic Act No.
1265, this Office hereby orders the dropping from
the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I
up to Grade VI effective today.
xxx xxx xxx
This order is in compliance with Division
Memorandum No. 108 s. 1989 dated November 17,
1989 by virtue of Department Order No. 8 s. 1955
dated July 21, 1955 in accordance with Republic
Act No. 1265 and Supreme Court Decision of a
case "Genaro Gerona, et al., Petitioners and
Appellants vs. The Honorable Secretary of
Education, et al., Respondents and Appellees'
dated August 12, 1959 against their favor. (p.
149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F.
Biongcog, ordered the "dropping from the rolls" of students who
"opted to follow their religious belief which is against the Flag
Salute Law" on the theory that "they forfeited their right to attend
public schools." (p. 47, Rollo of G.R. No. 95770.)
1st
Indorsement
DAANBANTAYAN
DISTRICT
II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz,

School In Charge [sic], Agujo Elementary School
with the information that this office is sad to order
the dropping of Jeremias Diamos and Jeaneth
Diamos,
Grades
III
and
IV
pupils
respectively from the roll since they opted to follow
their religious belief which is against the Flag
Salute Law (R.A. 1265) and DECS Order No. 8,
series of 1955, having elected not to comply with
the regulation about the flag salute they forfeited
their right to attend public schools (Gerona, et al.
vs. Sec. of Education, et al., 106 Philippines 15).
However, should they change their mind to
respect and follow the Flag Salute Law they may
be re-accepted.
(Sgd.)
MANUEL
District Supervisor

F.

BIONGCOG

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students
of the Daanbantayan National High School, Agujo Elementary
School, Calape Barangay National High School, Pinamungajan
Provincial High School, Tabuelan Central School, Canasojan
Elementary School, Liboron Elementary School, Tagaytay Primary
School, San Juan Primary School and Northern Central
Elementary School of San Fernando, Cebu, upon order of then
Acting Division Superintendent Marcelo Bacalso, prompted some
Jehovah's Witnesses in Cebu to appeal to the Secretary of
Education Isidro Cario but the latter did not answer their letter.
(p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were
similarly expelled because Dr. Pablo Antopina, who succeeded
Susana Cabahug as Division Superintendent of Schools, would not
recall the expulsion orders of his predecessor. Instead, he verbally
caused the expulsion of some more children of Jehovah's Witnesses.
On October 31, 1990, the students and their parents filed these
special civil actions for Mandamus,Certiorari and Prohibition
alleging that the public respondents acted without or in excess of
their jurisdiction and with grave abuse of discretion (1) in
ordering their expulsion without prior notice and hearing, hence, in
violation of their right to due process, their right to free public
education, and their right to freedom of speech, religion and
worship (p. 23, Rollo). The petitioners pray that:
c. Judgment be rendered:
i. declaring null and void the
expulsion or dropping from the
rolls of herein petitioners from
their respective schools;

admit and order the readmission of petitioners to their

respective schools. (p. 41, Rollo.)
and that pending the determination of the merits of these cases, a
temporary restraining order be issued enjoining the respondents
from enforcing the expulsion of the petitioners and to re-admit
them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining
order and a writ of preliminary mandatory injunction commanding
the respondents to immediately re-admit the petitioners to their
respective classes until further orders from this Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu
District Supervisor Manuel F. Biongcog to be impleaded as
respondents in these cases.
On May 13, 1991, the Solicitor General filed a consolidated
comment to the petitions (p. 98, Rollo) defending the expulsion
orders issued by the public respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's
Witnesses produce rebellious and anti-social
school children and consequently disloyal and
mutant Filipino citizens.
2. There are no new and valid grounds to sustain
the charges of the Jehovah's Witnesses that the
DECS' rules and regulations on the flag salute
ceremonies are violative of their freedom of
religion and worship.
3. The flag salute is devoid of any religious
significance; instead, it inculcates respect and love
of country, for which the flag stands.
4. The State's compelling interests being pursued
by the DECS' lawful regulations in question do
not warrant exemption of the school children of
the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived
religious convictions.
5. The issue is not freedom of speech but
enforcement of law and jurisprudence.
6. State's power to regulate repressive and
unlawful religious practices justified, besides
having scriptural basis.
7. The penalty of expulsion is legal and valid,
more so with the enactment of Executive Order
No. 292 (The Administrative Code of 1987).

ii. prohibiting and enjoining

respondent from further barring
the petitioners from their classes
or otherwise implementing the
expulsion ordered on petitioners;
and

Our task here is extremely difficult, for the 30-year old decision of
this court in Gerona upholding the flag salute law and approving
the expulsion of students who refuse to obey it, is not lightly to be
trifled with.

iii. compelling the respondent

and all persons acting for him to

It is somewhat ironic however, that after the Gerona ruling had

received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that the

time has come to re-examine it. The idea that one may be compelled
to salute the flag, sing the national anthem, and recite the patriotic
pledge, during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, 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 (Sec. 5, Article III,
1987 Constitution; Article IV, Section 8, 1973 Constitution; Article
III, Section 1[7], 1935 Constitution).
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 (Chief Justice
Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).
The right to religious profession and worship has
a two-fold aspect, vis., freedom to believe and
freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm
of thought. The second is subject to regulation
where the belief is translated into external acts
that affect the public welfare (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts" or
behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag
ceremony. They quietly stand at attention during the flag ceremony
to show their respect for the right of those who choose to participate
in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50
and Rollo of G.R. No. 95770, p. 48). Since they do not engage in
disruptive behavior, there is no warrant for their expulsion.
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
vs. 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.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past
or perhaps conducted with very few participants,
and the time will come when we would have
citizens untaught and uninculcated in and not
imbued with reverence for the flag and love of
country, admiration for national heroes, and
patriotism a pathetic, even tragic situation, and
all because a small portion of the school
population imposed its will, demanded and was
granted an exemption. (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the
Jehovah's 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 vs. Sec. of Education, 106 Phil. 2, 24). 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 of profession and be taught
the virtues of "patriotism, respect for human rights, appreciation
for 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 had 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 dully constituted authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319
U.S. 624 (1943):
. . . To believe that patriotism will not flourish if
patriotic
ceremonies
are
voluntary
and
spontaneous instead of a compulsory routine is to
make an unflattering estimate of the appeal of our
institutions to free minds. . . . When they
[diversity] are so harmless to others or to the
State as those we deal with here, the price is not
too great. But freedom 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.
Furthermore, let it be noted that coerced unity
and loyalty even to the country, . . . 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.)
Moreover, the expulsion of members of Jehovah's Witnesses from
the schools where they are enrolled will violate their right as
Philippine citizens, under the 1987 Constitution, to receive free
education, for it is the duty of the State to "protect and promote the
right of all citizens to quality education . . . and to make such
education accessible to all (Sec. 1, Art. XIV).
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 labor group:
. . . 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 interests" intervenes.
(Sherbert vs. Berner, 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 Jehovah's

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. Nevertheless, their right not to participate in
the flag ceremony does not give them a right to disrupt such
patriotic exercises. Paraphrasing the warning cited by this Court
inNon vs. Dames II, 185 SCRA 523, 535, while the highest regard
must be afforded their right to the free exercise of their religion,
"this should not be taken to mean that school authorities are
powerless to discipline them" if they should commit breaches of the
peace by actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at attention during
the flag ceremony while their classmates and teachers salute the
flag, sing the national anthem and recite the patriotic pledge, we do
not see how such conduct may possibly disturb the peace, or pose "a
grave and present danger 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 (German vs. Barangan,
135 SCRA 514, 517).
Before we close this decision, it is appropriate to recall the
Japanese occupation of our country in 1942-1944 when every
Filipino, regardless of religious persuasion, in fear of the invader,
saluted the Japanese flag and bowed before every Japanese soldier.
Perhaps, if petitioners had lived through that dark period of our
history, they would not quibble now about saluting the Philippine
flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that
made our hearts pound with pride and joy over the newly-regained
freedom and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right
under our Constitution to refuse to salute the Philippine flag on
account of their religious beliefs, we hope, nevertheless, that
another foreign invasion of our country will not be necessary in
order for our countrymen to appreciate and cherish the Philippine
flag.
WHEREFORE, the petition for certiorari and prohibition is
GRANTED. The expulsion orders issued by the public respondents
against the petitioners are hereby ANNULLED AND SET ASIDE.
The temporary restraining order which was issued by this Court is
hereby made permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., is on leave.

WISCONSIN V. YODER, 406 U.S. 205 (1972), is the case in

which the United States Supreme Court found that Amish children
could not be placed undercompulsory education past 8th grade. The
parents' fundamental right tofreedom of religion outweighed the
state's interest in educating its children. The case is often cited as a
basis for parents' right to educate their childrenoutside of
traditional private or public schools.

Background of the case

Three Amish students from three different families stopped
attending New Glarus High School in the New Glarus,
Wisconsin school district at the end of the eighth grade, all due to
their parents' religious beliefs. The three families were represented
by Jonas Yoder (one of the fathers involved in the case) when the
case went to trial. They were convicted in the Green County Court.
Each defendant was fined the sum of five dollars. Thereafter
the Wisconsin Supreme Court found in Yoder's favor. At this
point Wisconsin appealed that ruling in the U.S. Supreme Court.
The Amish did not believe in going to court to settle disputes but
instead follow the biblical command to "turn the other cheek."
Thus, the Amish are at a disadvantage when it comes to defending
themselves in courts or before legislative committees. However, a
Lutheran minister, Reverend William C. Lindholm, took an interest
in Amish legal difficulties from a religious freedom perspective and
founded The National Committee for Amish Religious Freedom
(partly as a result of this case) and then provided them with legal
counsel.
Under Amish church standards, higher education was deemed not
only unnecessary for their simple way of life, but also endangering
to their salvation.[1] These men appealed for exemption from
compulsory education under the basis of these religious convictions.
They sincerely held to the belief that the values their children
would learn at home would surpass the worldly knowledge taught
in school.[2]
The court's decision[edit]
The U.S. Supreme Court ruled in favor of Yoder in a unanimous
decision. Justice William O. Douglas filed a partial dissent, but
voted with the court regarding Yoder's case. Justices Lewis F.
Powell, Jr. and William H. Rehnquist took no part in the
consideration or decision of the case.
The Wisconsin Supreme Court "sustained respondents' claim that
application of the compulsory school-attendance law to them
violated their rights under the Free Exercise Clause of the First
Amendment, made applicable to the States by theFourteenth
Amendment."[1]
The U.S. Supreme Court held as follows:[2]
1. States cannot force individuals to attend school when it
infringes on their First Amendment rights. In this case,
the state of Wisconsin interfered with the practice of a
legitimate religious belief.
2. Not all beliefs rise to the demands of the religious clause of
the First Amendment. There needs to be evidence of true
and objective religious practices, instead of an individual
making his or her standards on such matters. The Amish
way of life is one of deep religious convictions that stems
from the Bible. It is determined by their religion, which
involves their rejection of worldly goods and their living in
the Biblical simplicity. The modern compulsory secondary
education is in sharp conflict with their way of life.
3. With respect to the State of Wisconsins argument that
additional modern education beyond 8th grade is
necessary to prepare citizens to participate effectively and
productively in Americas political system, the Court
disagreed. It argued that the State provided no evidence
showing any great benefit to having two extra years in the
public schools. Furthermore, the Court contended that the
Amish community was a very successful social unit in
American society, a self-sufficient, law-abiding member of

society, which paid all of the required taxes and rejected

any type of public welfare. The Amish children, upon
leaving the public school system, continued their
education in the form of vocational training.
4. The Court found no evidence that by leaving the Amish
community without two additional years of schooling,
young Amish children would become burdens on society.
To the contrary, the Court argued that they had good
vocational background to rely upon. It was the States
mistaken assumption that Amish children were ignorant.
Compulsory education after elementary school was a
recent movement that developed in the early 20th century
in order to prevent child labor and keep children of certain
ages in school. The State of Wisconsins arguments about
compelling the school attendance were therefore less
substantial.
5. Responding to Justice Douglas's dissent, the Court argued
that the question before it was about the interests of the
parents to exercise free religion, and did not relate to the
child's First Amendment's rights. As such, the argument
pertaining to the child's right to exercise free religion was
irrelevant in this case.
The dissenting opinion

their children to public elementary schools even after Wisconsin v.

Yoder. In most places tensions eased considerably after the
Supreme Court ruling, although certain difficulties remained for
those Amish living in Nebraska."[3]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-34854 November 20, 1978
FORTUNATO R. PAMIL, petitioner-appellant,
vs.
HONORABLE VICTORINO C. TELERON, as Judge of the
Court of First Instance of Bohol, Branch III, and REV. FR.
MARGARITO R. GONZAGA, respondents-appellees.
Urbano H. Lagunay for petitioner.

Justice William O. Douglas, who dissented in part, wrote:

"I agree with the Court that the religious scruples of the Amish are
opposed to the education of their children beyond the grade schools,
yet I disagree with the Court's conclusion that the matter is within
the dispensation of parents alone. The Court's analysis assumes
that the only interests at stake in the case are those of the Amish
parents on the one hand, and those of the State on the other. The
difficulty with this approach is that, despite the Court's claim, the
parents are seeking to vindicate not only their own free exercise
claims, but also those of their high-school-age children....
On this important and vital matter of education, I think the
children should be entitled to be heard. While the parents, absent
dissent, normally speak for the entire family, the education of the
child is a matter on which the child will often have decided views.
He may want to be a pianist or an astronaut or an oceanographer.
To do so he will have to break from the Amish tradition.
It is the future of the students, not the future of the parents, that is
imperiled by today's decision. If a parent keeps his child out of
school beyond the grade school, then the child will be forever barred
from entry into the new and amazing world of diversity that we
have today. The child may decide that that is the preferred course,
or he may rebel. It is the student's judgment, not his parents', that
is essential if we are to give full meaning to what we have said
about the Bill of Rights and of the right of students to be masters of
their own destiny. If he is harnessed to the Amish way of life by
those in authority over him and if his education is truncated, his
entire life may be stunted and deformed. The child, therefore,
should be given an opportunity to be heard before the State gives
the exemption which we honor today."
Legacy of the Court's decision
The ruling is cited as a basis for allowing people to be educated
outside traditional private or public schools, such as
withhomeschooling.[citation needed]
Regarding the consequences for the Amish:
"Since Wisconsin v. Yoder, all states must grant the Old Order
Amish the right to establish their own schools (should they choose)
or to withdraw from public institutions after completing eighth
grade. In some communities Amish parents have continued to send

Cristeto O. Cimagala for respondents.

FERNANDO, J.:
The novel question raised in this certiorari proceeding concerns the
eligibility of an ecclesiastic to an elective municipal position.
Private respondent, Father Margarito R. Gonzaga, was, in 1971,
elected to the position of municipal mayor of Alburquerque,
Bohol. 1 Therefore, he was duly proclaimed. A suit for quo
warranto was then filed by petitioner, himself an aspirant for the
office, for his disqualification 2 based on this Administrative Code
provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons
receiving salaries or compensation from provincial or national
funds, or contractors for public works of the municipality." 3 The
suit did not prosper, respondent Judge sustaining the right of
Father Gonzaga to the office of municipal mayor. He ruled that
such statutory ineligibility was impliedly repealed by the Election
Code of 1971. The matter was then elevated to this Tribunal by
petitioner. It is his contention that there was no such implied
repeal, that it is still in full force and effect. Thus was the specific
question raised.
There is no clear-cut answer from this Tribunal. After a lengthy
and protracted deliberation, the Court is divided on the issue.
Seven members of the Court are of the view that the judgment
should be affirmed as the challenged provision is no longer
operative either because it was superseded by the 1935
Constitution or repealed. Outside of the writer of this opinion, six
other Justices are of this mind They are Justices Teehankee,
Muoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero.
For them, the overriding principle of the supremacy of the
Constitution or, at the very least, the repeal of such provision bars
a reversal. 4 The remaining five members of this Court, Chief
Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino,
on the other hand, hold the position that such a prohibition against

an ecclesiastic running for elective office is not tainted with any

constitutional infirmity.
The vote is thus indecisive. While five members of the Court
constitute a minority, the vote of the remaining seven does not
suffice to render the challenged provision ineffective. Section 2175
of the Revised Administrative Code, as far as ecclesiastics are
concerned, must be accorded respect. The presumption of validity
calls for its application. Under the circumstances, certiorari lies.
That is the conclusion arrived at by the writer of this opinion,
joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero.
They have no choice then but to vote for the reversal of the lower
court decision and declare ineligible respondent Father Margarito
R. Gonzaga for the office of municipal mayor. With the aforesaid
five other members, led by the Chief Justice, entertaining no doubt
as to his lack of eligibility, this petition for certiorari must be
granted.
Except for the dispositive part announcing the judgment of the
Court, the remainder of this opinion sets forth the reasons why
there are constitutional objections to the continuing force and
effectivity of Section 2175 as far as ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the
1935 Constitution, as it is now under the present Charter, it is
explicitly declared: "No religious test shall be required for the
exercise of civil or political rights." 5 The principle of the paramount
character of the fundamental law 6 thus comes into play. There are
previous rulings to that effect.6 The ban imposed by the
Administrative Code cannot survive. So the writer of this opinion
would hold.
2. This is to conform to this provision of the 1935 Charter: "All laws
of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the
Congress of the Philippines, and all references in such laws to the
government or officials of the Philippines shall be construed, in so
far as applicable, to refer to the Government and corresponding
officials under this Constitution." 7 It was first applied in People v.
Linsangan, 8 decided in December, 1935, barely a month after that
Constitution took effect. This Court held that Section 2718 of the
Revised Administrative Code that would allow the prosecution of a
person who remains delinquent in the payment of cedula tax, 9 was
no longer in force. As stated by the then Justice, later Chief Justice,
Abad Santos, after setting forth that the Constitution prohibits the
imprisonment for debt or non-payment of poll tax: 10 "It seems too
clear to require demonstration that section 2718 of the Revised
Administrative Code is inconsistent with section 1, clause 12, of
Article Ill of the Constitution in that, while the former authorizes
imprisonment for non-payment of the poll or cedula tax, the latter
forbids it. It follows that upon the inauguration of the Government
of the Commonwealth, said section 2718 of the Revised
Administrative Code became inoperative, and no judgment of
conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the
Revised Administrative Code, could remove at pleasure any of the
appointive officials under the Charter of the City of
Baguio. 13 Relying on such a provision, the then President Quirino
removed petitioner De los Santos, who was appointed City Engineer
of Baguio on July 16, 1946, and chose in his place respondent Gil R.
Mallare. Why such a power could not pass the test of validity under
the 1935 Constitution was pointed out by Justice Tuason thus: "So,

unlike legislation that is passed in defiance of the Constitution,

assertive and menacing, the questioned part of section 2545 of the
Revised Administrative Code does not need a positive declaration of
nullity by the court to put it out of the way. To all intents and
purposes, it is non-existent, outlawed and eliminated from the
statute book by the Constitution itself by express mandate before
the petitioner was appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the
light of the cited provision of the 1935 Constitution, as
authoritatively construed, Article 145 of the Revised Penal Code
was found to be inoperative. As therein provided, the penalty
of prision correccional is imposed on any public officer or employee
who, while the Congress was in regular or special session, would
arrest or search a member thereof, except in case he had committed
a crime punishable by a penalty higher than prision mayor. This
Court ruled that the Revised Penal Code extended unduly the
legislative privilege of freedom from arrest as ordained in the
Constitution. 16 Such a provision then was contrary to and in
defiance of the clear expression of the will of the Constitutional
Convention of 1934 that such immunity was never intended to
exempt members of a legislative body from an arrest for a criminal
offense, the phrase treason, felony and breach of the peace being
all-inclusive. Reference was likewise made to the prevailing
American doctrine to that effect as enunciated by Williamson v.
United States. 17
3. It would be an unjustified departure from a settled principle of
the applicable construction of the provision on what laws remain
operative after 1935 if the plea of petitioner in this case were to be
heeded. 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. To so exclude them is to
impose a religious test. Torcaso v. Watkins 18 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 appellant's freedom of belief and
religion and therefore cannot be enforced against him." 19
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. It is not a valid argument against
this conclusion to assert that under the Philippine Autonomy Act of
1916, there was such a prohibition against a religious test, and yet
such a ban on holding a municipal position had not been nullified.
It suffices to answer that no question was raised as to its validity.
In Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was
assumed that there was no conflict with the fundamental law.

4. This is the first case then where this Court has to face squarely
such an issue. This excerpt from the opinion of Justice Moreland in
the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a
force unimpaired by the passage of time: "Relative to the theory
that Act No. 1627 has stood so long and been silently acquiesced in
for so great a length of time that it should not be disturbed, it may
be said that the fact that certain individuals have, by ignorance or
neglect, failed to claim their fundamental rights, furnishes no
reason why another individual, alert to his rights and their proper
enforcement, should be prevented from asserting and sustaining
those rights. The fact that Smith and Jones have failed to demand
their constitutional rights furnishes no basis for the refusal to
consider and uphold the constitutional rights of Richard Roe In the
case of Sadler v. Langham (34 Ala. 311), this same question was
under consideration and the court in resolving it said: 'It may be
urged, that these statutes have stood, and been silently acquiesced
in for so great a length of time, they should not now be disturbed.
We are sensible of the force of this argument. It will be observed,
however, that in Tennessee, the decision which declared the private
road law unconstitutional was pronounced forty years after the
enact. judgment of the statute; and in New York, after seventy
years had elapsed. It is, perhaps, never too late to re- establish
constitutional rights, the observance of which had been silently
neglected." 22 To support such a conclusion, no less than the great
Chief Justice Marshall, speaking for this Court in United States v.
More, in disposing of a contention by one of the parties as to
appellate jurisdiction having been previously exercised and
therefore beyond dispute was likewise relied upon. Thus: "No
question was made in that case as to the jurisdiction petition. It
passed sub silentio, and the court does not consider itself bound by
that case. 23 So it should be in this litigation. As set forth at the
outset, it is not even necessary to annul the challenged
Administrative Code provision. It is merely declared inoperative by
virtue of the mandate of the 1935 Constitution, similarly found in
the present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight
votes needed to give it binding force. The attack on the continuing
effectivity of Section 2175 having failed, it must be, as noted at the
outset, given full force and application.
WHEREFORE, the petition for certiorari is granted. The
judgment a quo is reversed and set aside. Respondent Gonzaga is
hereby ordered immediately to vacate the mayoralty of the
municipality of Albuquerque, Bohol, there being a failure to elect.
No pronouncement as to costs.
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Another argument was the issue of the separation of church and

state - it was feared that should a clergy member take public office,
he (at the time, they were always male) might try to impose his
religious views on citizens. At the very least, clergy would have a
conflict of interest between what their religious oaths demanded
and what the secular interests of government required.
But even early on there were those who did not agree with this - for
example, James Madison argued that such prohibitions punished a
religious profession with the denial of a basic civil right. Over time,
more people were convinced with this argument and came to
believe that the separation of church and state was strong enough
to protect against any violations. Such laws were gradually
eliminated until, by 1977, Tennessee was the only one left bringing us to this case.
McDaniel was an ordained Baptist minister who was barred from
serving in Tennessee's constitutional convention even though he
had been duly elected because Tennessee law prevented "Ministers
of the Gospel, or priest[s] of any denomination whatever" from
holding such publicly elected positions. McDaniel argued that this
violated his First Amendment rights.
Court Decision
In a unanimous decision (in which Justice Blackmun did not take
part) written by Chief Justice Burger, the Supreme Court found
that Tennessee's law forced citizens to choose between exercising
two fundamental rights and that the Free Exercise clause did not
permit this. As Burger wrote:
The right to the free exercise of religion unquestionably
encompasses the right to preach, porselyte, and perform other
similar religios functions, or, in other words, to be a minister of the
type McDaniel was found to be. ...Tennessee has encroached on
McDaniels' right to the free exercise of religion. "[T]o condition the
availability of benefits [including access to the ballot] upon this
appellants' willingness to violate a cardinal principle of [his]
relgious faith [by surrendering his religiously impelled ministry]
effectively penalizes the free exercise of [his] constitutional
liberties."
While Tennessee may have originally had a legitimate interest in
keeping clergy from participation, this interest has not been shown
to exist any longer. Safeguards exist to ensure that, if elected,
clergy will not create too close an alliance between church and
state. The Court noted that there was no record anywhere in
America of a clergyperson being less observant of the separation of
church and state while holding public office than any secular
colleagues.

MCDANIEL V. PATY (1978)

Significance
Background Information
Early in American history, laws were enacted in seven of the
original states and six other early additions to prevent clergy from
holding any public office. One reason given was that they were
involved otherwise engaged in an exalted activity and hence should
not be involved in the messy world of politics.

The Supreme Court accepted that original exclusion of clergy from

public office may have justifiable, but that this was no longer true thus, it argued that the fact that a practice goes back to the colonial
period is not sufficient to allow it today. This principle is not,
however, followed consistently - for example legislative chaplains
were found permissible almost entirely on the basis of their
traditional place.

Significance

GOLDMAN V. WEINBERGER (1986)

Background Information
S. Simcha Goldman was an Orthodox Jew and ordained rabbi
serving as an officer in the U.S. Air Force and working as a clinical
psychologist at his base's mental health clinic. Orthodox Jewish
doctrines mandate that males cover their heads in the presence of
God as a sign of respect. Many Jews argue that God is everywhere
and, hence, they are always in his presence - thus they wear a
skullcap, or yarmulke, all the time.

The purpose of the military and its need to foster cohesiveness were
regarded as appropriate justifications to restrict the religious rights
of individuals. The Court did not try to evaluate the merit of
military's claims about the importance of regulating the appearance
of its members, deciding that the military should be left to make
such final decisions rather than the courts.
This was one of the first cases decided by the "Reagan Court" - that
is to say, a court made up mostly by justice appointed by President
Ronald Reagan. This court consistently refused to apply the
"compelling interest" test in questions of religious freedom and thus
consistently found in favor of the government infringing upon the
liberty of religious minorities based upon weaker justifications.

Military regulations, however, prohibited him from wearing his

yarmulke indoors because headgear could not be worn inside
"except by armed security police in the performance of their duties."
When outside Goldman wore his yarmulke underneath his service
cap, but he was told that he would be subject to disciplinary action
if he was found wearing a yarmulke inside. Goldman disobeyed
orders and continued to wear his yarmulke while in uniform and
while indoors. He was therefore disciplined and threatened with a
court marshal.
Goldman then sued, claiming that this rights under the Free
Exercise clause of the First Amendment superseded Air Force
regulations.
Court Decision
With the majority decision written by Justice Renhquist, the
Supreme Court upheld the military rules 5-4. In his majority
decision, Justice Rhenquist wrote:
Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of
similar laws or regulations designed for civilian society. ...[W]hen
evaluating whether military needs justify a particular restriction
on religiously-motivated conduct, courts must give great deference
to the professional judgment of military authorities concerning the
relative importance of a particular military interest.
Military officials were not constitutionally required to condition
their professional decisions to the Constitution because the military
was found to be a "specialized society separate from civilian society"
and "to accomplish its mission the military must foster instinctive
obedience, unity, commitment, and esprit de corps."
Things like obedience, unity, commitment, and esprit de corps are,
in turn, fostered by a sense of cohesivenes and common purpose
among its members. An important means by which cohesiveness is
created by the military is through strict regulation and
commonality of the uniforms worn. Members are expected to
subordinate their own desires and beliefs to the larger needs and
objectives of the service. Thus, headgear worn for personal reasons
could not be permitted.

LEE V. WEISMAN (1992)

How far can a school go when it comes to accommodating the
religious beliefs of students and parents? Many schools have
traditionally had someone offer prayers at important school events
like graduations, but critics argue that such prayers violate the
separation of church and state because they mean that the
government is endorsing particular religious beliefs.
Background Information
Nathan Bishop Middle School in Providence, RI, traditionally
invited clergy to offer prayers at graduation ceremonies. Deborah
Weisman and her father, Daniel, both of whom are Jewish,
challenged the policy and filed suit in court, arguing that the school
had turned itself into a house of worship after a rabbis benediction.
At the disputed graduation, the rabbi thanked God for:
...the legacy of America where diversity is celebrated...O God, we
are grateful for the learning which we have celebrated on this
joyous commencement...we give thanks to you, Lord, for keeping
us alive, sustaining us and allowing us to reach this special,
happy occasion.
With help from the Bush administration, the school board argued
that the prayer was not an endorsement of religion or of any
religious doctrines. The Weismans were supported by the ACLU
and other groups interested in religious freedom.
Both the district and appellate courts agreed with the Weismans
and found the practice of offering prayers unconstitutional. The
case was appealed to the Supreme Court where the administration
asked it to overturn the three-prong test created in Lemon v.
Kurtzman.
Court Decision
Arguments were made on November 6th, 1991. On June 24th 1992,
the Supreme Court ruled 5-4 that prayers during school graduation
violate the Establishment Clause.

Writing for the majority, Justice Kennedy found that officially

sanctioned prayers in public schools were so clearly a violation that
the case could be decided without relying upon the Courts earlier
church/separation precedents, avoiding the Lemon Test.

CHURCH OF THE LUKUMI BABALU AYE

According to Kennedy, the governments involvement in religious

exercises at graduation is pervasive and unavoidable. The state
creates both public and peer pressure on students to rise for and
remain silent during prayers. State officials not only determine
that an invocation and benediction should be given, but also select
the religious participant and provide guidelines for the content of
the nonsectarian prayers.

Background Information

The Court viewed this state participation as coercive in the

elementary and secondary school settings. The state in effect
required participation in a religious exercise, since the option of
not attending one of lifes most significant occasions was no real
choice. At a minimum, the Court concluded, the Establishment
Clause guarantees that government may not coerce anyone to
support or participate in religion or its exercise.
What to most believers may seem nothing more than a reasonable
request that the nonbeliever respect their religious practices, in a
school context may appear to the nonbeliever or dissenter to be an
attempt to employ the machinery of the State to enforce a
religious orthodoxy.
Although a person could stand for the prayer merely as a sign of
respect for others, such an action could justifiably be interpreted as
accepting the message. The control held by teachers and principals
over the students actions forces those graduating to submit to the
standards of behavior. This is sometimes referred to as the
Coercion Test. Graduation prayers fail this test because they put
impermissible pressure on students to participate in, or at least
show respect for, the prayer.
In a dictum, Justice Kennedy wrote about the importance of the
separating church and state:
The First Amendments Religion Clauses mean that religious
beliefs and religious expression are too precious to be either
proscribed or prescribed by the State. The design of the
Constitution is that preservation and transmission of religious
beliefs and worship is a responsibility ad a choice committed to
the private sphere, which itself is promised freedom to pursue
that mission. [...] A state-created orthodoxy puts at grave risk
that freedom of belief and conscience which are the sole assurance
that religious faith is real, not imposed.
In a sarcastic and scathing dissent, Justice Scalia said that prayer
is a common and accepted practice of bringing people together and
the government should be allowed to promote it. The fact that
prayers can cause division for those who disagree with or are even
offended by the content simply isnt relevant.
Significance
This decision failed to reverse the standards established by the
Court in Lemon. Instead, this ruling extended the prohibition
of school prayer to graduation ceremonies and refused to accept the
idea that a student would not be harmed by standing during the
prayer without sharing the message contained in the prayer.

V. CITY OF HIALEAH (1993)

The Church of the Lukumi Babalu Aye was leasing land in

Hialeah, Florida and planning to establish a church, school,
cultural center, and musuem there.
Their religion was Santeria, which originated in Cuba in the
19th century and includes the ritual sacrifice of animals. In
Santeria, ritual animal sacrifice is practiced at birth, marriage,
and death rites. It is also used for curing the sick and other
annual ceremonies.
In response to their plans to bring their religious ceremonies
out into the open, the city of Hialeah passed several
ordinances at an emergency public session on June 9, 1987
specifically prohibiting animal sacrifice of any sort. The
Church saw these laws as a blatant attempt to violate their
First Amendment rights to freely exercise their religion.
Court Decision
In 1993, the Court unanimously invalidated city ordinances
outlawing animal sacrifices. In his majority opinion, Justice
Kennedy noted that to avoid having to meet the compelling
interest requirement, a law must be both neutral and
generally applicable:
Official action that targets religious conduct for distinctive treatment
cannot be shielded by mere compliance with the requirement of facial
neutrality. The Free Exercise Clause protects against governmental
hostility which is masked as well as overt.
But Kennedy found that the laws in question were not of
general applicability:
Although the practice of animal sacrifice may seem abhorrent to some,
'religious beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment
protection.'
That the laws were designed for the express purpose of
suppressing Santeria was demonstrated by the use of terms
such as "ritual" and "sacrifice" in the statute. Furthermore, a
resolution was also passed by the city which spoke openly
against "practices which are inconsistent with public morals,
peace and safety," and "reiterated" the city's commitment to
prohibit "any and all [such] acts of any and all religious
groups."
The city tried to claim that they had two secular interests in
passing the legislation: protecting the public health and
preventing cruelty to animals. Unfortunately, the laws that
were passed did not do very much to meet those goals. For
example, they limited the laws to cover just the types of

practices that would (coincidentally?) occur during Santeria

practices.
Significance
This decision suported the constitutional standard created
in Smith to determine whether a law violates the freedom of
individuals' to exercise their religions. In order to not have to
pass the compelling interest test, a law must be generally
applicable and neutral. In particular, the government cannot
pass laws which unfairly burden a minority religion, religious
group, or religious doctrine.

LAMB'S CHAPEL
V. CENTER MORICHES UNION FREE SCHOOL DISTRICT
Lamb's Chapel v. Center Moriches Union Free School
District, 508 U.S. 384 (1993), was a decision by the Supreme Court
of the United Statesconcerning whether Free Speech Clause of
the First Amendment was offended by a school district that refused
to allow a church access to school premises to show films dealing
with family and child-rearing issues faced by parents. In a
unanimous decision,[1] the court concluded that it was.
In disputes over the question of separation of church and state, the
use of school facilities by religious groups has been an issue
numerous times. The landmark case of Lambs Chapel v. Center
Moriches Union Free School District (1993) set a broad precedent
for the use of public school facilities by outside groups, including
religious organizations. In a rare unanimous decision, the U.S.
Supreme Court ruled that a school boards denial of school facility
use to a religious group violated the groups First Amendment
guarantee to free speech.
Facts of the Case
Lambs Chapel arose where a New York state law allowed school
boards to permit a wide variety of groups to use their facilities and
property for a wide array of outside purposes, including social, civic,
and recreational meetings and entertainment. However, the law did
not include the use of meetings for religious purposes.
A local church twice requested to use school facilities at Center
Moriches Union Free School District, outside of school hours, to
show a 6-hour video series dealing with parenting issues that
centered on Christian family values. Board officials denied the
churchs request on both occasions, claiming that the film was
church related.
When the church and its pastor sued the board for violating the
Free Speech Clause of the First Amendment of the U.S.
Constitution, a federal trial court granted its motion for summary
judgment. The court maintained that since the schools facilities
were only a limited public forum, the boards denials of the groups
request to use them for religious activities were, in fact, viewpoint
neutral. The Second Circuit affirmed in favor of the board.
The Courts Ruling
On further review, the U.S. Supreme Court reversed in favor of the
religious organization, on the basis that the boards denial of its
request to use school facilities solely because the group planned to
show a film with a religious basis did, indeed, violate the churchs
free speech rights as protected by the First Amendment. The Court
explained that since the facilities were used by other non-school-

related groups for functions during nonschool hours, the board had
in effect established a limited public forum.
The Court added that since there was no apparent threat of
violence or disruption for allowing the group to use school facilities,
the request to use district facilities should likely have been granted.
The Court thus found that insofar as the only reason the board
rejected the organizations request was solely that the group was of
a religious nature, denying it access for this reason was a violation
of the viewpoint neutrality standard that requires state agencies
to exhibit neither a positive nor negative attitude toward religion.
By allowing school facilities to be used by civic and social groups,
such as the Boy Scouts or Girl Scouts, the Supreme Court was of
the opinion that school boards such as the one in Center Moriches
establish a limited public forum and cannot then deny similar
access or facility use to religious groups or organizations. The Court
reasoned that opening school doors for some groups but not
specifically for religious groups violates both the notion of viewpoint
neutrality and their rights to free speech as protected by the First
Amendment, even if this speech has its basis in religion or is made
for religious purposes.
Likewise, the Court observed that allowing a group to use school
facilities for religious purposes does not imply that school or board
officials promote or establish religion. In fact, the Court pointed out
that the use of facilities does not imply that a meeting (or movie, as
in the case at bar) is a school-sponsored or schoolendorsed event,
because while such a gathering is not necessarily closed to the
public, there is nothing to suggest that the board has established an
open forum for the use of its facilities.
As the Supreme Court noted in Lambs Chapel, and reiterated
almost a decade later in Good News Club v. Milford Central School
(2001), if the message being delivered by the use of school facilities
is appropriate (which the movie on child rearing and family values
was), then a government-sponsored agency such as a school board
cannot discriminate solely on the basis of the religious nature of the
messenger.

[G.R. No. 119673. July 26, 1996]

IGLESIA
NI
CRISTO
(INC.), petitioner,
vs.
THE
HONORABLE COURT OF APPEALS, BOARD OF
REVIEW
FOR
MOTION
PICTURES
AND
TELEVISION and HONORABLE HENRIETTA S.
MENDEZ, respondents.
DECISION
PUNO, J.:
This is a petition for review of the Decision dated March 24,
1995 of the respondent Court of Appeals affirming the action of the
respondent Board of Review for Motion Pictures and Television
which x-rated the TV Program Ang Iglesia ni Cristo.
Petitioner Iglesia ni Cristo, a duly organized religious
organization, has a television program entitled Ang Iglesia ni
Cristo aired on Channel 2 every Saturday and on Channel 13
every Sunday. The program presents and propagates petitioners
religious beliefs, doctrines and practices often times in comparative
studies with other religions.
Sometime in the months of September, October and November
1992, petitioner submitted to the respondent Board of Review for
Motion Pictures and Television the VTR tapes of its TV program

Series Nos. 116, 119, 121 and 128. The Board classified the series
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.
Petitioner pursued two (2) courses of action against the
respondent Board. On November 28, 1992, it appealed to the Office
of the President the classification of its TV Series No. 128. It
succeeded in its appeal for on December 18, 1992, the Office of the
President
reversed
the
decision
of
the
respondent
Board. Forthwith, the Board allowed Series No. 128 to be publicly
telecast.
On December 14, 1992, petitioner also filed against the
respondent Board Civil Case No. Q-92-14280, with the RTC, NCR,
Quezon City.[1]Petitioner alleged that the respondent Board acted
without jurisdiction or with grave abuse of discretion in requiring
petitioner to submit the VTR tapes of its TV program and in xrating them. It cited its TV Program Series Nos. 115, 119, 121 and
128. In their Answer, respondent Board invoked its power under
P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on
petitioners prayer for a writ of preliminary injunction. The parties
orally
argued
and
then
marked
their
documentary
evidence. Petitioner submitted the following as its exhibits, viz.:
(1)

Exhibit A, respondent Boards Voting Slip

for Television showing its September 9, 1992 action
on petitioners Series No. 115 as follows:[2]

REMARKS:
There are some inconsistencies in the particular program as it is
very surprising for this program to show series of Catholic
ceremonies and also some religious sects and using it in their
discussion about the bible. There are remarks which are direct
criticism which affect other religions.

This is intolerance and robs off all sects of freedom of choice,

worship and decision.
(4)

REMARKS:
I refuse to approve the telecast of this episode for reasons of the
attacks, they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that
they are right and the rest are wrong, which they clearly present in
this episode.
(5)

Exhibit A-1, respondent Boards Voting Slip

for Television showing its September 11, 1992
subsequent action on petitioners Series No. 115 as
follows:[3]

REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own
faith and beliefs and avoid attacks on other faith.
(3)

Exhibit B, respondent Boards Voting Slip

for Television showing its October 9, 1992 action on
petitioners Series No. 119, as follows:[4]

REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible
and says that our (Catholic) veneration of the Virgin Mary is not to
be condoned because nowhere it is found in the bible that we should
do so.

Exhibit D, respondent Boards Voting Slip

for Television showing its November 20, 1992 action
on petitioners Series No. 128 as follows:[6]

REMARKS:
The episode presented criticizes the religious beliefs of the Catholic
and Protestants beliefs.
We suggest a second review.
(6)

Exhibits E, E-1, petitioners block time

contract with ABS-CBN Broadcasting Corporation
dated September 1, 1992.[7]

(7)

Exhibit F, petitioners Airtime Contract with

Island Broadcasting Corporation.[8]

(8)

Exhibit G, letter dated December 18, 1992 of

former Executive Secretary Edelmiro A. Amante, Sr.,
addressed to Henrietta S. Mendez reversing the
decision of the respondent Board which x-rated the
showing of petitioners Series No. 129. The letter
reads in part:

Need more opinions for this particular program. Please subject to

more opinions.
(2)

Exhibit C, respondent Boards Voting Slip

for Television showing its October 20, 1992 action on
petitioners Series No. 121 as follows:[5]

xxx

xxx

xxx

The television episode in question is protected by the constitutional

guarantee of free speech and expression under Article III, Section 4
of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well
as studied the passages found by MTRCB to be objectionable and
we find no indication that the episode poses any clear and present
danger sufficient to limit the said constitutional guarantee.
(9)

Exhibits H, H-1, letter dated November 26,

1992 of Teofilo C. Ramos, Sr., addressed to President
Fidel V. Ramos appealing the action of the
respondent Board x-rating petitioners Series No. 128.

On its part, respondent Board submitted the following

exhibits, viz.:
(1) Exhibit 1, Permit Certificate for Television
Exhibition No. 15181 dated December 18, 1992
allowing the showing of Series No. 128 under
parental guidance.

(2) Exhibit 2, which is Exhibit G of petitioner.

(3) Exhibit 3, letter dated October 12, 1992 of Henrietta
S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
xxx
In the matter of your television show Ang Iglesia ni Cristo Series
No. 119, please be informed that the Board was constrained to deny
your show a permit to exhibit. The material involved constitute an
attack against another religion which is expressly prohibited by
law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court
issued a writ of preliminary injunction on petitioners bond of
P10,000.00.
The trial court set the pre-trial of the case and the parties
submitted their pre-trial briefs.[9] The pre-trial briefs show that the
parties evidence is basically the evidence they submitted in the
hearing of the issue of preliminary injunction. The trial of the case
was set and reset several times as the parties tried to reach an
amicable accord. Their efforts failed and the records show that
after submission of memoranda, the trial court rendered a
Judgment,[10] on December 15, 1993, the dispositive portion of
which reads:

board has jurisdiction and power to review the TV program Ang

Iglesia ni Cristo, and (2) the respondent Board did not act with
grave abuse of discretion when it denied permit for the exhibition
on TV of the three series of Ang Iglesia ni Cristo on the ground
that the materials constitute an attack against another religion. It
also found the series indecent, contrary to law and contrary to good
customs.
In this petition for review on certiorari under Rule 45,
petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT ANG IGLESIA NI CRISTO
PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A
FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF
RELIGIOUS FREEDOM, THE ANG IGLESIA NI CRISTO
PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A
CLEAR AND PRESENT DANGER.
III

x x x
WHEREFORE, judgment is hereby rendered ordering respondent
Board of Review for Motion Pictures and Television (BRMPT) to
grant petitioner Iglesia ni Cristo the necessary permit for all the
series of Ang Iglesia ni Cristo program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from
offending and attacking other existing religions in showing Ang
Iglesia ni Cristo program.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS

ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH
THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT THE ANG IGLESIA NI CRISTO, A
PURELY RELIGIOUS PROGRAM IS INDECENT AND
CONTRARY TO LAW AND GOOD CUSTOMS.

SO ORDERED.
Petitioner moved for reconsideration[11] praying: (a) for the
deletion of the second paragraph of the dispositive portion of the
Decision, and (b) for the Board to be perpetually enjoined from
requiring petitioner to submit for review the tapes of its
program. The respondent Board opposed the motion.[12] On March
7, 1993, the trial court granted petitioners Motion for
Reconsideration. It ordered:[13]

The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioners TV program
Ang Iglesia ni Cristo, and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the
airing of petitioners religious program, series Nos. 115, 119 and
121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good
customs.

x x x

The first issue can be resolved by examining the powers of the

Board under P.D. No. 1986. Its Section 3 pertinently provides:

WHEREFORE, the Motion for Reconsideration is granted. The

second portion of the Courts Order dated December 15, 1993,
directing petitioner to refrain from offending and attacking other
existing religions in showing Ang Iglesia ni Cristo program is
hereby deleted and set aside. Respondents are further prohibited
from requiring petitioner Iglesia ni Cristo to submit for review VTR
tapes of its religious program Ang Iglesia ni Cristo.
Respondent Board appealed to the Court of Appeals after its
motion for reconsideration was denied.[14]
On
March
5,
1995,
the
respondent
Court
of
Appeals[15] reversed the trial court. It ruled that: (1) the respondent

Sec. 3 Powers and Functions. The BOARD shall have the

following functions, powers and duties:
xxx

xxx

xxx

b) To screen, review and examine all motion pictures as herein

defined, television programs, including publicity materials such
as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical
distribution for television broadcast or for general viewing,
imported or produced in the Philippines and in the latter case,
whether they be for local viewing or for export.

c) To approve, delete objectionable portion from

and/or prohibit the importation, exportation, production, copying,
distribution, sale, lease, exhibition and/or television
broadcast of the motion pictures, television programs and
publicity materials, subject of the preceding paragraph, which, in
the judgment of the BOARD applying contemporary Filipino
cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission
of violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or
sedition against the State, or otherwise threaten the economic
and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for
violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasijudicial tribunal, or pertain to matters which are sub-judice in
nature (emphasis ours).
The law gives the Board the power to screen, review and
examine all television programs. By the clear terms of the law,
the Board has the power to approve, delete x x x and/or prohibit
the x x x exhibition and/or television broadcast of x x x television
programs x x x. The law also directs the Board to apply
contemporary Filipino cultural values as standard to determine
those which are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or
crime.
Petitioner contends that the term television program should
not include religious programs like its program Ang Iglesia ni
Cristo. A contrary interpretation, it is urged, will contravene
Section 5, Article III of the Constitution which guarantees that 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.
We reject petitioners submission which need not set us adrift
in a constitutional voyage towards an uncharted sea. Freedom of
religion has been accorded a preferred status by the framers of
our fundamental laws, past and present. We have 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.[16] We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right

to religious profession and worship. To quote the summation of Mr.

Justice Isagani Cruz, our well-known constitutionalist:[17]
Religious Profession and Worship
The right to religious profession and worship has a two-fold
aspect, viz., freedom to believe and freedom to act on ones
beliefs. The first is absolute as long as the belief is confined within
the realm of thought. The second is subject to regulation
where the belief is translated into external acts that affect
the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about
life and death; worship any god he chooses, or none at all; embrace
or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the
immortality of his soul in fact, cherish any religious conviction as
he and he alone sees fit. However absurd his beliefs may be to
others, even if they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do
so. Religion, after all, is a matter of faith. Men may believe what
they cannot prove. Every one has a right to his beliefs and he may
not be called to account because he cannot prove what he believes.
(2) Freedom to Act on Ones Beliefs
But where the individual externalizes his beliefs in acts or
omissions that affect the public, his freedom to do so
becomes subject to the authority of the State. As great as this
liberty may be, religious freedom, like all the other rights
guaranteed in the Constitution, can be enjoyed only with a proper
regard for the rights of others. It is error to think that the mere
invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The
inherent police power can be exercised to prevent religious practices
inimical to society. And this is true even if such practices are
pursued out of sincere religious conviction and not merely for the
purpose of evading the reasonable requirements or prohibitions of
the law.
Justice Frankfurter put it succinctly: The 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.
Accordingly, while one has full freedom to believe in Satan, he
may not offer the object of his piety a human sacrifice, as this would
be murder. Those who literally interpret the Biblical command to
go forth and multiply are nevertheless not allowed to contract
plural marriages in violation of the laws against bigamy. A person
cannot refuse to pay taxes on the ground that it would be against
his religious tenets to recognize any authority except that of God
alone. An atheist cannot express his disbelief in acts of derision
that wound the feelings of the faithful. The police power can be
validly asserted against the Indian practice of the suttee born of
deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.

We thus reject petitioners postulate that its religious program

is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom
of internal belief. Television is a medium that reaches even the
eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it
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. A laissez faire policy on the exercise of
religion can be seductive to the liberal mind but history counsels
the Court against its blind adoption as religion is and continues to
be a volatile area of concern in our country today. Across the sea
and in our shore, the bloodiest and bitterest wars fought by men
were caused by irreconcilable religious differences. Our country is
still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with
which some of us cling and claw to these beliefs. Even now, we
have yet to settle the near century old strife in Mindanao, the roots
of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and
sisters. The bewildering rise of weird religious cults espousing
violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For
sure, we shall continue to subject any act pinching the
space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the
irrationality of man. For when religion divides and its
exercise destroys, the State should not stand still.
It is also petitioners submission that the respondent appellate
court gravely erred when it affirmed the ruling of the respondent
Board x-rating its TV Program Series Nos. 115, 119, 121 and
128. The records show that the respondent Board disallowed the
program series for attacking other religions. Thus, Exhibits A,
A-1, (respondent Boards Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for x x x criticizing different
religions, based on their own interpretation of the Bible. They
suggested that the program should only explain petitioners x x x
own faith and beliefs and avoid attacks on other faiths. Exhibit
B shows that Series No. 119 was x-rated because the Iglesia ni
Cristo insists on the literal translation of the bible and says that
our Catholic veneration of the Virgin Mary is not to be condoned
because nowhere it is found in the bible that we should do so. This
is intolerance x x x. Exhibit C shows that Series No. 121 was xrated x x x for reasons of the attacks, they do on, specifically, the
Catholic religion. x x x (T)hey can not tell, dictate any other
religion that they are right and the rest are wrong x x x. Exhibit
D also shows that Series No. 128 was not favorably recommended
because it x x x outrages Catholic and Protestants beliefs. On
second review, it was x-rated because of its unbalanced
interpretations of some parts of the Bible.[18] In sum, the
respondent Board x-rated petitioners TV program series Nos. 115,
119, 121 and 128 because of petitioners controversial biblical
interpretations and its attacks against contrary religious
beliefs. The respondent appellate court agreed and even held that
the said attacks are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its
hostility against all prior restraints on speech, including religious
speech. Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed
brows.[19] It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of
censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board xrated petitioners TV series for attacking other religions, especially
the Catholic church. An examination of the evidence, especially
Exhibits A, A-1, B, C, and D will show that the so-called
attacks are mere criticismsof some of the deeply held dogmas
and tenets of other religions. The videotapes were not viewed by
the respondent court as they were not presented as evidence. Yet
they were considered by the respondent court as indecent, contrary
to law and good customs, hence, can be prohibited from public
viewing under Section 3(c) of PD 1986. This ruling clearly
suppresses petitioners freedom of speech and interferes with its
right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v.
Connecticut,[20] viz.:
xxx

xxx

xxx

In the realm of religious faith, and in that of political belief, sharp

differences arise. In both fields, the tenets of one man may seem
the rankest error to his neighbor. To persuade others to his own
point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are
prominent in church or state or even to false statements. But the
people of this nation have ordained in the light of history that
inspite 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 the citizens of democracy.
The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such
criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious
dogmas and beliefs are often at war and to preserve peace among
their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet
of options. Neutrality alone is its fixed and immovable stance. In
fine, respondent board cannot squelch the speech of petitioner Iglesia
ni Cristo simply because it attacks other religions, even if said
religion happens to be the most numerous church in our country. In
a State where there ought to be no difference between the appearance
and the reality of freedom of religion, the remedy against bad
theology is better theology. The bedrock of freedom of religion is
freedom of thought and it is best served by encouraging the
marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more
speech for it is the spark of opposite speech, the heat of colliding
ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground
attacks against another religion in x-rating the religious program
of petitioner. Even a sideglance at Section 3 of PD 1986 will reveal
that it is not among the grounds to justify an order prohibiting the
broadcast of petitioners television program. The ground attack
against another religion was merely added by the respondent
Board in its Rules.[21] This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize attack
against any religion as a ground allegedly x x x because Section 3
(c) of PD 1986 prohibits the showing of motion pictures, television
programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone
who exhibits shows which offend any race or religion. We
respectfully disagree for it is plain that the word attack is not

synonymous with the word offend. Moreover, Article 201 (2) (b) (3)
of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any
religion. It cannot be utilized to justify prior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD
1986, included attack against any religion as a ground for
censorship. The ground was not, however, carried over by PD
1986. Its deletion is a decree to disuse it. There can be no other
intent. Indeed, even the Executive Department espouses this
view. Thus, in an Opinion dated November 28, 1985 then Minister
of Justice, now President of the Senate, Neptali Gonzales
explained:
x x x
However, the question whether the BRMPT (now MTRCB) may
preview and censor the subject television program of INC should be
viewed in the light of the provision of Section 3, paragraph (c) of PD
1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines
or its people or with dangerous tendency to encourage the
commission of violence, or of a wrong as determined by the Board,
applying contemporary Filipino cultural values as standard. As
stated, the intention of the Board to subject the INCs television
program to previewing and censorship is prompted by the fact that
its religious program makes mention of beliefs and practices of
other religion. On the face of the law itself, there can conceivably be
no basis for censorship of said program by the Board as much as the
alleged reason cited by the Board does not appear to be within the
contemplation of the standards of censorship set by law. (Italics
supplied)
Fourth. In x-rating the TV program of the petitioner,
the respondents failed to apply the clear and present danger
rule. In American Bible Society v. City of Manila,[22] this Court
held: The constitutional guaranty of free exercise and enjoyment of
religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can
be justified like other restraints on freedom of expression on the
ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent.
In Victorianovs. Elizalde Rope Workers Union,[23] we further ruled
that x x x it is only where it is 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 to avoid
the danger.
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.
It is suggested that we re-examine the application of clear and
present danger rule to the case at bar. In the United States, it is
true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test
in Schenck v. US,[24] as follows: x x x the question in every case is

whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to
prevent. Admittedly, the test was originally designed to determine
the latitude which should be given to speech that espouses antigovernment action. Bannered by Justices Holmes and Brandeis,
the test attained its full flowering in the decade of the forties, when
its umbrella was used to protect speech other than subversive
speech.[25] Thus, for instance, the test was applied to annul a total
ban on labor picketing.[26] The use of the test took a downswing in
the 1950s when the US Supreme Court decided Dennis v. United
States involving
communist
conspiracy.[27] In Dennis,
the
components of the test were altered as the High Court adopted
Judge Learned Hands formulation that x x x in each case [courts]
must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary
to avoid the danger. The imminence requirement of the test was
thus diminished and to that extent, the protection of the rule was
weakened. In 1969, however, the strength of the test was
reinstated inBrandenburg v. Ohio,[28] when the High Court restored
in the test the imminence requirement, and even added an intent
requirement which according to a noted commentator ensured that
only speech directed at inciting lawlessness could be
punished.[29] Presently in the United States, the clear and present
danger test is not applied to protect low value speeches such as
obscene speech, commercial speech and defamation. Be that as it
may, 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.[30] Hence, even following 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.
It is also opined that it is inappropriate to apply the clear and
present danger test to the case at bar because the issue involves
the contentof speech and not the time, place or manner of
speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech
and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that
are pre-taped and hence, their speech content is known and not an
X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the
substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x
the determination of the question as to whether or not such
vilification, exaggeration or fabrication falls within or lies outside
the boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administrative body
such as a Board of Censors. He submits that a system of prior
restraint may only be validly administered by judges and not left
to administrative agencies. The same submission is made by Mr.
Justice Mendoza.
This thoughtful thesis is an attempt to transplant another
American rule in our jurisdiction. Its seedbed was laid down by Mr.
Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day.[31] By 1965, the US Supreme Court
in Freedman v. Maryland[32] was ready to hold that the teaching of
cases is that, because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom

of expression, only a procedure requiring a judicial determination

suffices to impose a valid final restraint.[33]
While the thesis has a lot to commend itself, we are not ready
to hold that it is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up
in Sotto vs. Ruiz,[34] viz.:
The use of the mails by private persons is in the nature of a
privilege which can be regulated in order to avoid its
abuse. Persons possess no absolute right to put into the mail
anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power, is
extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of
the law, since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be
subject to revision by the courts in case he had abused his
discretion or exceeded his authority. (Ex-parte Jackson [1878],
96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S.,
497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of
determining whether a publication contains printed matter
of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every
intendment of the law is in favor of the correctness of his
action. The rule is (and we go only to those cases coming from the
United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the
decision of the Director of Posts unless clearly of opinion that it was
wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith
vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs.
Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103
Fed., 909, announcing a somewhat different doctrine and relied
upon by the Attorney-General).
To be sure, legal scholars in the United States are still
debating the proposition whether or not courts alone are
competent to decide whether speech is constitutionally
protected.[35] The
issue
involves
highly
arguable
policy
considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court
of Appeals dated March 24, 1995 is affirmed insofar as it sustained
the jurisdiction of the respondent MTRCB to review petitioners TV
program entitled Ang Iglesia ni Cristo, and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB xrating petitioners TV Program Series Nos. 115, 119, and 121. No
costs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Francisco, and Torres, Jr.,
JJ., concur.
Padilla, Melo, and Kapunan,
JJ., see
concurring
and
dissenting opinion.
Hermosisima, Jr., J., joins the concurring and dissenting
opinion of J. Kapunan.

Panganiban, JJ., see separate concurring opinion.

Vitug, and Mendoza, JJ., see separate opinion.
Narvasa, C.J., in the result.
Bellosillo, J., on leave.

A petition for certiorari, prohibition and injunction, the case was raffled to
Br. 104, then presided by Judge, now Associate Justice of the Court of
Appeals Maximiano Asuncion.
[2] Original Records, p. 24.
[3] Original Records, p. 25.
[4] Original Records, p. 27.
[5] Original Records, p. 28.
[6] Original Records, p. 29. The second review shows the following action of
the respondent Board:
REMARKS:
An unbalanced interpretation of some parts of the bible regarding
Christmas. They (The Iglesia ni Kristo) tackle/discuss only their own
interpretations (and) while the sides of the Protestants and the Catholics
who they pick on in this episode are not heard of.
We feel that this topic of the Iglesia ni Kristo which is (?) of
attacking other religious beliefs does not merit public telecast.
(Original Records, p. 30)
[7] Original Records, pp. 21-22.
[8] Original Records, p. 23.
[9] Original Records, pp. 121-120; pp. 144-149.
[10] Original Records, pp. 219-220.
[11] Original Records, pp. 223-230.
[12] Original Records, pp. 233-242.
[13] Original Records, pp. 245-250.
[14] Original Records, pp. 379-381.
[15] Tenth Division with Associate Justice Antonio P. Solano (ponente),
Associate Justice Alfredo Benipayo (chairman) and Associate Justice
Ricardo Galvez (member).
[16] Victoriano v. Elizalde Rope Worker Union,
L-25246, September 12,
1974 per Mr. Justice Calixto Zaldivar.
[17] Cruz, Constitutional Law, 1991 ed., pp. 176-178.
[18] Original Records, p. 30.
[19] Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan,
372 US 58 (1963); New York Times v. United States, 403 US 713 (1971).
[20] 310 US 296.
[21] Sec. 4. Governing Standard. a) the Board shall judge the motion
pictures and television programs and publicity materials submitted to it for
review, using as standard contemporary Filipino cultural values, to abate
what are legally objectionable for being immoral, indecent, contrary to law,
and good customs x x x such as but not limited:
xxx
xxx
xxx
vii. Those which clearly constitute an attack against any race, creed, or
religion as distinguished from individual members thereof.
[22] 101 Phil. 386.
[23] 59 SCRA 54, 58.
[24] 249 US 47,63 Led 470 (1919).
[25] Bridges v. California, 314 US 252, 262 where J. Black observed that the
test has afforded a practical guidance in a variety of cases in which the
scope of constitutional protections of freedom of expression was an issue.
[26] Thornhill v. Alabama, 310 US 88 (1940).
[27] 341 US 494 (1951).
[28] Id., at p. 510.
[29] Gunther, Learned Hand and the Origins of Modern First Amendment
Doctrine, Some Fragments of History, 27 Stan L. Rev. 719 (1975).
[30] Hentoff, Speech, Harm and Self Government: Understanding the Ambit
of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453
(1991).
[31] 370 US 478 (1962).
[32] 380 US 51 (1965).
[33] Id., at p. 58.
[34] 41 Phil. 468 (1921) per Justice Malcolm.
[35] See Hunter, Toward a Better Understanding of the Prior Restraint
Doctrine, A Reply to Prof. Mayton, 67 Cornell L. Rev, 283 (1982) for the
view that courts are no better than administrative agencies in protecting
First Amendment rights.
[1]

[A.M. NO. P-02-1651. AUGUST 4, 2003]

ALEJANDRO
ESTRADA, COMPLAINANT, VS.
ESCRITOR, RESPONDENT.

SOLEDAD

S.

DECISION
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 28th 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 preChristian 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 13th 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 17th 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 19th 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 16th and
17thcentury 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 mid18th 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 postrevolutionary 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-todoor 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 nonreligious 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] Atwopart 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 thetwopart 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 religiouslyaffiliated 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, 65354 [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 19th 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 religionspecific 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

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.

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

This was followed by the Philippine Independence Law or TydingsMcDuffie 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, 4th 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 antiadministration 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. 560561).[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 AntiBases 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 xrating 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]

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 nonestablishment 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

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

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:

IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence

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)

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]

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]

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 selfdenying 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 fellowmen 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.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga,
JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban,
Carpio-Morales, and Callejo,
Sr.,
JJ., joins
the
dissenting opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber,

P., Equal Separation (1990), p. 17.
[2] Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p.
668.
[3] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, pp. 149-150.
[4] Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398,
p. 416 (1963).
[5] Rollo, pp. 5-6.
[6] Id. at 8.
[7] Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
[8] Id. at 101.
[9] Id. at 100; Exhibit 3, Certificate of Death.
[10] Id. at 10; Exhibit 1.
[11] Id. at 11; Exhibit 2.
[12] Id. at 27-33.
[13] Id. at 37.
[14] Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
[15] Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
[16] Citing biblical passages, this article addresses the question, Does the
validity of a marriage depend entirely upon its recognition by civil
authorities and does their validation determine how Jehovah God,
the author of marriage, views the union? It traces the origins of
marriage to the time of the Hebrews when marriage was a family
or tribal affair. With the forming of Israel as a nation, God gave a
law containing provisions on marriage, but there was no
requirement for a license to be obtained from the priesthood nor
that a priest or a representative from government be present in
[1]

the marriage to validate it. Instead, as long as Gods law was

adhered to, the marriage was valid and honorable within the
community where the couple lived. In later Bible times,
marriages came to be registered, but only after the marriage had
been officiated, thereby making the government only a recordkeeper of the fact of marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was likewise
chiefly a family affair and there was no requirement of license
from the religious or civil authority to make it valid and
honorable. It was conformity to Gods law that was necessary for
the marriage to be viewed as honorable within the
congregation. Later, however, the civil authorities came to have
more prominence in determining the validity of a marriage while
the role of the congregation waned. Christians cannot turn their
back on this reality in desiring to make their marriage honorable
among all, i.e., in the sight of God and men. However, the view
of civil authorities regarding the validity of marriage is relative
and sometimes even contradictory to the standards set by the
Bible. For example, in some lands, polygamy is approved while
the Bible says that a man should only have one wife. Likewise,
some countries allow divorce for the slightest reasons while others
do not allow divorce. The Bible, on the other hand, states that
there is only one ground for divorce, namely, fornication, and
those divorcing for this reason become free to marry.
To obtain a balanced view of civil authority (or Caesars authority in Biblical
terms) regarding marriage, it is well to understand the interest of
civil governments in marriage. The government is concerned with
the practical aspects of marriage such as property rights and
weakening genetic effects on children born to blood relatives, and
not with the religious or moral aspects of marriage. Caesars
authority is to provide legal recognition and accompanying
protection of marital rights in court systems, thus a Christian
desiring this recognition and rights must adhere to Caesars
requirements. However, God is not bound by Caesars decisions
and the Christian should rightly give conscientious consideration
to Caesars marriage and divorce provisions but will always give
greatest consideration to the Supreme Authority, Jehovah God
(Acts 4:19; Rom. 13:105). . . Thus the Christian appreciates that,
even though Caesars rulings of themselves are not what finally
determine the validity of his marriage in Gods eyes, this does not
thereby exempt him from the Scriptural injunction: Let marriage
be honorable among all. (Heb. 13:4) He is obligated to do
conscientiously whatever is within the power to see that his
marriage is accorded such honor by all. Those who wish to be
baptized members of the Christian congregation but do not have
legal recognition of their marital union should do all that is
possible to obtain such recognition, thereby removing any doubt as
to the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition. For
instance, in countries where divorce is not allowed even on the
Scriptural ground of fornication, either because of the dominance
of one religion or other reasons, a man might have left his
unfaithful wife and lives with another woman with whom he has a
family. He may later learn the truth of Gods Word and desire to
be baptized as a disciple of Gods Son, but he cannot obtain divorce
and remarry as the national laws do not allow these. He might go
to a land which permits divorce and remarry under the laws of
that land and add honor to his union, but upon returning to his
homeland, the law therein might not recognize the union. If this
option is not available to that man, he should obtain a legal
separation from his estranged mate or resort to other legal
remedies, then make a written statement to the local
congregation pledging faithfulness to his present mate and
declaring his agreement to obtain a legal marriage certificate if
the estranged legal wife should die or if other circumstances
should make possible the obtaining of such registration. If his
present mate likewise seeks baptism, she would also make such a
signed statement. (p. 182) In some cases, a person might have
initiated the process of divorce where the law allows it, but it may
take a long period to finally obtain it. If upon learning Bible
truth, the person wants to be baptized, his baptism should not be
delayed by the pending divorce proceedings that would make his
present union honorable for Bible examples indicate that
unnecessary delay in taking the step of baptism is not advisable
(Acts 2:37-41; 8:34-38; 16:30-34; 22:16). Such person should then

provide the congregation with a statement pledging faithfulness,

thereby establishing his determination to maintain his current
union in honor while he exerts effort to obtain legal recognition of
the union. Similarly, in the case of an already baptized Christian
whose spouse proves unfaithful and whose national laws do not
recognize the God-given right to divorce an adulterous mate and
remarry, he should submit clear evidence to the elders of the
congregation of the mates infidelity. If in the future he decides to
take another mate, he can do this in an honorable way by signing
declarations pledging faithfulness where they also promise to seek
legal recognition of their union where it is feasible. This
declaration will be viewed by the congregation as a putting of
oneself on record before God and man that the signer will be just
as faithful to his or her existing marital relationship as he or she
would be if the union were one validated by civil authorities. Such
declaration is viewed as no less binding than one made before a
marriage officer representing a Caesar government of the world. .
. It could contain a statement such as the following:
I, __________, do here declare that I have accepted __________ 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 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 makes this possible I promise to legalize
this union.
The declaration is signed by the declarant and by two others as witnesses
and the date of declaration is indicated therein. A copy of the
declaration is kept by the persons involved, by the congregation to
which they belong, and by the branch office of the Watch Tower
Society in that area. It is also beneficial to announce to the
congregation that a declaration was made for their awareness that
conscientious steps are being undertaken to uphold the
honorableness of the marriage relationship. It must be realized,
however, that if the declarant is unable to obtain recognition from
the civil authorities, even if he makes that declaration, whatever
consequences result to him as far as the world outside is
concerned are his sole responsibility and must be faced by him.
(p. 184) For instance, should there be inheritance or property
issues arising from an earlier marriage, he cannot seek legal
protection with regard to his new, unrecognized union.
Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp.
12-32.
[18] Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6.
[19] Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
[20] Rollo, pp. 239-240; Respondents Memorandum, pp. 1-2; Rollo, pp. 109110, Maintaining Marriage Before God and Men, pp. 184-185.
[21] Rollo, p, 240; Respondents Memorandum, p. 2.
[22] Report and Recommendation of Executive Judge Bonifacio Sanz Maceda,
p. 3.
[23] Id. at 4.
[24] Memorandum by Deputy Court Administrator Christopher Lock dated
August 28, 2002, p. 6.
[25] A.M. No. P-96-1231, February 12, 1997.
[26] Memorandum by Deputy Court Administrator Christopher Lock dated
August 28, 2002, p. 7.
[27] Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
[28] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry Nelson, and Horton, Walter M., The Growth of Religion
(1938), p. 22.
[29] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry Nelson, and Horton, Walter M., The Growth of Religion
(1938), p. 29.
[30] Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and
Evolution of Religion (1923), pp. 68, 206.
[31] Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512528.
[32] Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p.
47.
[33] Pfeffer, L., supra, p. 4.
[17]

Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in
Complete Works of Josephus, p. 500.
[35] Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
[36] It may also be said that Moses actually used the concept of a single allpowerful God as a means of unifying the Hebrews and
establishing them as a nation, rather than vice versa. What is
important to note, however, is that the monotheism which served
as foundation of Christianity of western civilization with its
consequences in church-state relations was established by Moses
of the Bible, not the Moses of history. Pfeffer, L., supra, p. 5.
[37] Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949),
p. 24.
[38] Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[39] Pfeffer, L., supra, p. 7.
[40] Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions
(1934), p. 108.
[41] Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[42] Pfeffer, L., supra, p. 13.
[43] Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian
Church (1940), p. 108.
[44] Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45] Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the
Great, 14th ed., V, p. 258.
[46] Pfeffer, L., supra, p. 22.
[47] Pfeffer, L., supra, p. 23.
[48] Greene, E., Religion and the State (1941), p. 8.
[49] Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luthers
Primary Works (1885), pp. 194-185.
[50] Pfeffer,
L., supra, p. 23, citing Acton, History of Freedom in
Chrisitianity, in Essays on Freedom and Power (1949), p. 103.
[51] Pfeffer, L., supra, pp. 24-25.
[52] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[53] Greene, E., supra, p. 9.
[54] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
[55] Pfeffer, L., supra, p. 26.
[56] Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church
and State in England (1950), p. 93.
[57] Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949), pp.
674-675 and Garbett, C., pp. 61-62.
[58] Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents,
130-135.
[59] Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p.
243.
[60] Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[61] Everson v.Board of Education of the Township of Ewing, et al., 330 U.S.
1 (1947), pp. 8-9.
[62] Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
[63] Pfeffer, L., supra, p. 30.
[64] Beth, L., American Theory of Church and State (1958), p. 3.
[65] Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[67] Pfeffer, L., supra, pp. 92-93.
[68] Pfeffer, L., supra, p. 96.
[69] Pfeffer, L., supra, p. 95
[70] Another estimate of church membership in 1775 is that in none of the
colonies was membership in excess of 35 percent of the population.
(Beth, L., American Theory of Church and State [1958], p. 73.)
[71] Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy
Making, Second Edition (1980), p. 1276.
[72] Pfeffer, L., supra, pp. 96.
[73] Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[74] Pfeffer, L., supra, p. 93.
[75] Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb,
S.H., The Rise of Religious Liberty in America (1902), p. 485.
[76] Pfeffer, L., supra, p. 85.
[77] Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
[78] Pfeffer, L., supra, p. 87.
[79] Pfeffer, L., supra, p. 86.
[80] Pfeffer, L., supra, pp. 88-89.
[81] Pfeffer, L., supra, p. 101.
[82] Pfeffer, L., supra, p. 99.
[83] Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
Government (edited by C.B: Macpherson), pp. 8-10.
[34]

Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and

Religion in America, 1774-1789 (1924), pp. 368-369.
[85] Pfeffer, L., supra, p. 103.
[86] Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[87] Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of
American Civilization, I (1947), p. 449.
[88] Drakeman, D., supra, p. 55.
[89] Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy
(1948), p. 267.
[90] Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in
Establishing Religious Liberty as a Foundation of the American
Government, Papers of the American Historical Association, II, p.
26.
[91] Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92] Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American
Tradition in Religion and Education (1950), pp. 46-47.
[93] Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and
Religion in America, 1774-1789 (1924), p. 379.
[94] Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[95] Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode,
N.J., The Separation of Church and State in Virginia (1910), p. 86.
[96] Beth, L., supra, p. 63.
[97] Id. at 81-82.
[98] Id. at 74-75.
[99] Beth, L., supra, p. 63.
[100] Id at 63-65.
[101] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 160.
[102] Id. at 63-65.
[103] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 160.
[104] Beth, L., supra, pp. 63-65.
[105] Id. at 69.
[106] Drakeman, D., supra, p. 59.
[107] Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer,
L., supra, p. 92, 125, citing Kohler, M.J., The Fathers of the
Republic and Constitutional Establishment of Religious Liberty
(1930), pp. 692-693.
[108] Beth, L., supra, p. 71.
[109] Berman, H., Religious Freedom and the Challenge of the Modern
State, Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp.
151-152.
[110] Monsma, S., The Neutrality Principle and a Pluralist Concept of
Accommodation in Weber, P., Equal Separation (1990), p. 74.
[111] Berman, H., supra, pp. 151-152.
[112] McCoy, T., A Coherent Methodology for First Amendment Speech and
Religion Clause Cases, Vanderbilt Law Review, vol. 48(5),
October 1995, p. 1335, 1340.
[113] Weber, P., Neutrality and first Amendment Interpretation in Equal
Separation (1990), pp. 5-7. See also Kauper, P., Religion and the
Constitution (1964), p. 99.
[114] Monsma, S., supra, p. 73.
[115] See Carter, S., The Resurrection of Religious Freedom, Harvard Law
Review (1993), vol. 107(1), p. 118, 128-129.
[116] Emanuel, S., Constitutional Law (1992), p. 633.
[117] Carter, S., supra, p. 118, 140.
[118] Sullivan, K., Religion and Liberal Democracy, The University of
Chicago Law Review (1992), vol. 59(1), p. 195, 214-215.
[119] Kauper, P., Religion and the Constitution (1964), pp, 24-25.
[120] 133 U.S. 333 (1890).
[121] 133 U.S. 333 (1890), p. 342.
[122] 322 U.S. 78 (1944).
[123] United States v. Ballard, 322 U.S. 78 (1944), p. 86.
[124] Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law,
Second Edition (1999), pp. 522-523.
[125] 367 U.S. 488 (1961).
[126] 380 U.S. 163 (1965).
[127] Stephens, Jr., supra, p. 645.
[128] Id. at 524.
[129] Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of
Employment Security, 489 U.S. 829 (1989).
[84]

McCoy, T., A Coherent Methodology for First Amendment Speech and

Religion Clause Cases, Vanderbilt Law Review, vol. 48(5),
October 1995, p. 1335, 1336-1337.
[131] Kelley, D. Strict Neutrality and the Free Exercise of Religion in
Weber, P., Equal Separation (1990), p. 20.
[132] Kauper, P., supra, p, 13.
[133] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[134] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 168.
[135] McCoy, T., supra, p. 1335, 1336-1337.
[136] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[137] Monsma, S., supra, p. 88, citing Neuhaus, R., Contending for the
Future: Overcoming the Pfefferian Inversion, in The First
Amendment Religion Liberty Clauses and American Public Life,
p. 183.
[138] Carter, S., supra, p. 118, 134-135.
[139] Lupu, I., The Religion Clauses and Justice Brennan in Full, California
Law Review (1999), vol. 87(5), p. 1105, 1114.
[140] Everson v. Board of Education, 330 US 1 (1946), p. 15.
[141] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[142] See McCoy, T., supra, p. 1335, 1336.
[143] 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious
Liberty (1980), p. 49; Drakeman, Church-State Constitutional
Issues (1991), p. 2.
[144] Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
[145] Id. at 163.
[146] 98 U.S. 145, 166.
[147] McCoy, T., supra, p. 1335, 1344-45.
[148] Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed.
(1986), p. 1069.
[149] 136 U.S. 1 (1890).
[150] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[151] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[152] 367 U.S. 488 (1961).
[153] 322 U.S. 78, 86 (1944).
[154] 310 U.S. 296 (1940).
[155] Id. at 310.
[156] Id at 303-304.
[157] 319 U.S. 157 (1943).
[158] 340 U.S. 268 (1951).
[159] 452 U.S. 640 (1981).
[160] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
[161] 133 U.S. 333, 345.
[162] McCoy, T., supra, p. 1335, 1344-45.
[163] 310 U.S. 586 (1940).
[164] 319 U.S. 624 (1943).
[165] Id. at 634.
[166] Id. at 639.
[167] McCoy, T., supra, p. 1335, 1345-46.
[168] See Bloostein,
M., The Core-Periphery Dichotomy in First
Amendment Free Exercise Clause Doctrine: Goldman v.
Weinberger, Bowen v. Roy, and OLone v. Estate of Shabbaz,z
Cornell Law Review, vol. 72 (4), p. 827, 828.
[169] 366 U.S. 599 (1961).
[170] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[171] 374 U.S. 398 (1963).
[172] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[173] Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
[174] Id. at 406.
[175] Lupu, I., supra, p. 1105, 1110.
[176] McCoy, T., supra, p. 1335, 1346-1347.
[177] 450 U.S. 707 (1981).
[178] 480 U.S. 136 (1987).
[179] 455 U.S. 252 (1982).
[180] United States v. Lee, 455 U.S. 252 (1982), p. 260.
[181] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
[182] 406 U.S. 205 (1972).
[183] Id. at 214-215, 219-220.
[184] 494 U.S. 872 (1990).
[185] McConnell, M., supra, p. 685, 726.
[186] McCoy, T., supra, p. 1335, 1350-1351.
[187] Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and
1191. See also Sullivan, K., Religion and Liberal Democracy,
[130]

The University of Chicago Law Review (1992), vol. 59(1), p. 195,

216.
[188] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 139.
[189] Sullivan, K., Religion and Liberal Democracy, The University of
Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[190] Carter, S., supra, p. 118.
[191] Rosenzweig, S., Restoring Religious Freedom to the Workplace: Title
VII, RFRA and Religious Accommodation, University of
Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516.
[192] 138 L.Ed. 2d 624 (1994).
[193] 508 U.S. 520 (1993).
[194] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
[195] 330 U.S. 1 (1946).
[196] Drakeman, D., supra, p. 4-6.
[197] Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.
[198] 98 U.S. 164 (1878).
[199] Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
[200] Id. at 164.
[201] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
[202] Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
[203] Id. at 18.
[204] 403 U.S. 602 (1971).
[205] Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
[206] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[207] 370 U.S. 421 (1962).
[208] 374 U.S. 203 (1963).
[209] Id.
[210] Id. at 222.
[211] Witt, E. (ed.), supra, p. 93.
[212] 472 U.S. 38 (1985).
[213] 333 U.S. 203 (1948).
[214] 343 U.S. 306 (1952).
[215] Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[216] 366 U.S. 420 (1961).
[217] Id. at 451-452.
[218] 463 U.S. 783 (1983).
[219] Marsh v. Chambers, 463 US 783 (1983).
[220] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
[221] 465 U.S. 668 (1984).
[222] 397 U.S. 664 (1970).
[223] Id. at 673.
[224] Id.
[225] Id. at 676.
[226] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 119-120.
[227] Drakeman, D., supra, p. 51.
[228] Id. at 53.
[229] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
[230] Drakeman, supra, p. 52, citing Cord, R., Separation of Church and
State: Historical Fact and Current Fiction. p. 50.
[231] Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds.,
The Debates and Proceedings in the Congress of the United
States, Compiled from Authentic Materials (Annala), vol. 1, pp.
949-950.
[232] Beth, L., supra, p. 74.
[233] Drakeman, supra, pp. 57, 82.
[234] Buzzard, L., Ericsson, S., supra, p. 46.
[235] Beth, L., supra, p. 72.
[236] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[237] Beth, L., supra, p. 71.
[238] The Constitution and Religion, p. 1541.
[239] Id. at 1539.
[240] Weber, P., Neutrality and First Amendment Interpretation in Equal
Separation (1990), p. 3.
[241] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 120.
[242] Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
[243] The Constitution and Religion, p. 1541, citing Kurland, Of Church and
State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[244] Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion
and the Law (1962), p. 18.
[245] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 186.

Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
Buzzard, L., Ericsson, S., supra, p. 60.
[248] Kelley, D., supra, p. 1189.
[249] Monsma, S., supra, p. 74.
[250] Id. at 75.
[251] Smith, S., supra, p. 149, 159.
[252] Drakeman, supra, p. 54.
[253] Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254] Smith, S., supra, p. 149, 159.
[255] Id. at 149, 159-160.
[256] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257] Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and Roemer:
From Separation to Dtente in Church-State Relations, 55 North
Carolina Law Review (April 1977), 563-75.
[258] Buzzard, L., Ericsson, S., supra, p. 51.
[259] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[260] Buzzard, L., Ericsson, S., supra, p. 61.
[261] Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262] Kelley, D., supra, p. 34.
[263] Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion
(1970), p. 21.
[264] Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
Religion (1963), pp. xxvii, xxviii.
[265] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
[266] Berman, H., supra, p. 162.
[267] The Constitution and Religion, p. 1569.
[268] McCoy, T., supra, p. 1335, 1338-1339.
[269] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 688.
[270] Id.
[271] Id. at 689.
[272] Id. at 690-694, 715.
[273] Id. at 686.
[274] Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663,
679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S.
668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).
[275] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 139, 184.
[276] Id. at 174.
[277] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 631.
[278] Buzzard, L., Ericsson, S., supra, pp. 61-62.
[279] Emanuel,
S., supra, pp. 633-634, citing Tribe, L., American
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp.
1067-1069.
[280] Id. at 633.
[281] Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[282] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 715.
[283] Buzzard, L., Ericsson, S., supra, pp. 61-63.
[284] McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, Harvard Law Review , vol. 103 (1990), p. 1410, 14167.
[285] Buzzard, L., Ericsson, S., supra, p. 70.
[286] McConnell, M., Accommodation of Religion: An Update and a Response
to the Critics, The George Washington Law Review (1992), vol. 60
(3), p. 685, 735.
[287] Buzzard, L., Ericsson, S., supra, pp. 68-71.
[288] Lupu, I., supra, p. 743, 775.
[289] Id. at 775.
[290] Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[291] Buzzard, L., Ericsson, S., supra, p. 68.
[292] Lupu, I., supra, p. 743, 776.
[293] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
[294] Martinez, H., The High and Impregnable Wall of Separation Between
Church and State, Philippine Law Journal (1962), vol. 37(5), p.
748, 766.
[295] Article II.
[296] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), p. 284.
[246]
[247]

Coquia, J., Church and State Law and Relations, p. 52, citing Article X
of the Treaty of Paris. The territories referred to were Cuba,
Puerto Rico, Guam, the West Indies and the Philippine Islands.
[298] Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la
Republica Filipina promulgada el dia 22 de Enero de 1899
(Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
[299] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 13, 148.
[300] Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With
Philippine Organic Laws 10.
[301] 25 Phil. 273 (1913).
[302] Id. at 276.
[303] Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a),
73rd Congress (1934).
[304] Laurel, S., Proceedings of the Philippine Constitutional Convention, vol.
III (1966), pp. 654-655.
[305] Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p.
164.
[306] Id. at 150.
[307] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
[308] Baddiri, E., Islam and the 1987 Constitution: An Issue on the Practice
of Religion, 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed
Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978).
[309] Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310] 64 Phil 201 (1937).
[311] 101 Phil. 386 (1957).
[312] Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[313] 106 Phil. 2 (1959).
[314] Id. at 9-10.
[315] Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 225, Footnote 38.
[316] 319 U.S. 103.
[317] 234 SCRA 630 (1994).
[318] 493 U.S. 378 (1990).
[319] 106 Phil. 2 (1959).
[320] 106 Phil. 2 (1959), p. 10.
[321] Id. at 11-12.
[322] Id. at 14.
[323] Id. at 25.
[324] Id. at 24-25.
[325] 110 Phil 150.
[326] 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93
(1974); Gonzalez v. Central Azucarera de Tarlac Labor Union, 139
SCRA (1985).
[327] Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54
(1974), p. 72.
[328] Id. at 73.
[329] 64 Phil 201.
[330] 392 US 236.
[331] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332] Id. at 75.
[333] Id.
[334] 61 SCRA 93 (1974).
[335] 80 SCRA 350 (1977).
[336] 139 SCRA 30 (1985).
[337] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing
Cantwell v. Connecticut, 310 U.S. 296.
[338] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
[339] German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[340] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting
Opinion of Justice Teehankee.
[341] 219 SCRA 256 (1993), March 1, 1993.
[342] Id. at 270-271.
[343] Id. at 271-272.
[344] Id. at 272.
[345] Id. at 272-273.
[346] Id. at 270.
[347] Id. at 269.
[348] 259 SCRA 529 (1996).
[349] Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[350] Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[351] Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff,
Speech, Harm and Self-Government: Understanding the Ambit of
the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p.
1453 (1991).
[297]

Id.
Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354] This argument was a central theme in John Lockes A Letter Concerning
Toleration, which strongly influenced the thinking of many
Americans, including Jefferson and Madison. (Smith, S., The Rise
and Fall of Religious Freedom in Constitutional Discourse,
University of Pennsylvania Law Review, vol. 140[1], November
1991, p. 149, 155).
[355] Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 233.
[356] Id. at 234.
[357] 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the
Philippines: A Commentary (1987), p. 234.
[358] An Act Appropriating the Sum of Sixty Thousand Pesos and Making the
Same Available out of any Funds in the Insular Treasury not
otherwise Appropriated for the Cost of Plates and Printing of
Postage Stamps with New Designs, and for other Purposes.
[359] Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360] Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361] 104 SCRA 510 (1981).
[362] 86 SCRA 413 (1978).
[363] 367 U.S. 488 (1961).
[364] Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365] 96 Phil. 417 (1955).
[366] 45 Am. Jur. 77.
[367] 96 Phil 417 (1955), p. 426.
[368] Id. at 441, citing American authorities.
[369] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370] Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371] Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372] Walz v. Tax Commission, supra, p. 668.
[373] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
[374] Drakeman, D., supra, p. 127.
[375] Buzzard, L. and Ericsson, S., supra, p. 75.
[376] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), pp. 288-289.
[377] Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378] Martin, Statutory Construction (1979), p. 210.
[379] Aruego, J., supra, pp. 331-337.
[380] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 154-155, citing Francisco (ed.), Journal of the
Constitutional Convention of the Philippines, vol. 4, pp. 1550,
1552.
[381] Aruego, J., supra, p. 337.
[382] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), p. 153.
[383] Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, p. 1539.
[384] Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
[385] Aruego, J., supra, pp. 340-345.
[386] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
Convention Record, vol. 10 (1967), p. 29.
[387] Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp.
627-629.
[388] Martin, supra, p. 218.
[389] Aglipay v. Ruiz, supra, p. 206.
[390] Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1
(1952), pp. 269-270.
[391] Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems
of the Committee on Church and State of the 1971 Constitutional
Convention, p. 18.
[392] Bernas, J., Background paper for reconsideration of the religion
provisions of the constitution (1971), pp. 41-43.
[393] Tingson, J., Report of the Committee on Church and State of the 1971
Constitutional Convention Report, p. 5.
[394] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406,
citing Records of the Constitutional Commission, vol. II, pp. 193194.
[395] Records of the Constitutional Commission, vol. 4, p. 362.
[396] Id. at 358.
[397] Id. at 359.
[398] Id. at 973.
[399] Records of the Constitutional Commission, vol. 1, p. 102.
[352]
[353]

Bernas, Constitutional Rights and Social Demands, Part II (1991), p.

268.
[401] Cruz, I., Constitutional Law (1995), p. 167.
[402] Martinez, H., supra, p. 768-772.
[403] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 169.
[404] Martinez, H., supra, p. 773.
[405] Neuhaus, R., supra, p. 630.
[406] Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the
University of Virginia, in The Complete Jefferson (Saul K.
Padover ed., 1969), p. 957, 958.
[407] Neuhaus, R., supra, p. 630.
[408] Carter, S., supra, pp. 140-142.
[409] Cruz, I., Constitutional Law (1995), p. 178.
[410] Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v.
Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339 SCRA 709
(2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997); Nalupta v.
Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil. 49
(1985).
[411] 68 SCRA 354 (1975).
[412] 305 SCRA 469 (1999).
[413] Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
[414] Devlin, P., The Enforcement of Morals (1965), p. 10.
[415] Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
[416] Devlin, P., supra, 13.
[417] Neuhaus, R., supra, pp. 621, 624-625.
[418] McConnell, M., Religious Freedom at a Crossroads, The University of
Chicago Law Review (1992), vol. 59(1), p. 115, 139.
[419] Neuhaus, R., supra, pp. 624-625.
[420] Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The
Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).
[421] Id. at 247.
[422] Greenwalt, K., supra, p. 272.
[423] Buzzard, L. and Ericsson, S., supra, p. 31.
[424] Devlin, P., supra, pp. 19-20.
[425] Id. at 247.
[426] 210 SCRA 471 (1992).
[427] Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing
Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12,
citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also
Justice Pablos view in People v. Piosca and Peremne, 86 Phil. 31.
[428] Devlin, P., supra, pp. 6-7.
[429] Id. at 19.
[430] Article 334 of the Revised Penal Code provides, viz:
Art. 334. Concubinage. Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or
shall cohabit with her in any other place, shall be punished
by prision correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro.
[431] Article 266-A of the Revised Penal Code.
[432] Rule 110 of the Revised Rules of Criminal Procedure, as amended
provides in relevant part, viz:
The crime of adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse. The offended party
cannot institute criminal prosecution without including the guilty
parties, if both are alive, nor, in any case, if the offended party has
consented to the offense or pardoned the offenders.
[433] Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186
(1956), pp. 202-203, citing Report of the Code Commission on the
Proposed Civil Code of the Philippines, pp. 40-41.
[434] Carter, S., supra, p. 138.
[435] Sullivan, K., supra, pp. 197-198.
[436] Rule 1.01 of the Code of Professional Responsibility provides that, (a)
lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
[437] Title Six of the Revised Penal Code is entitled Crimes against Public
Morals and includes therein provisions on gambling and betting.
(emphasis supplied)
[438] The New Civil Code provides, viz:
Article 6. Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs or prejudicial
to a third person with a right recognized by law.
[400]

Article 21. Any person who wilfully 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.
Article 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient,
provided that are not contrary to law,morals, good customs,
public order, or public policy.
Article 1409. The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy; x x x (emphasis supplied)
[439] Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as
part of the curricula.
They shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the
rights and duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and
technological
knowledge,
and
promote
vocational
efficiency. (emphasis supplied)
[440] To illustrate the distinction between public or secular morality and
religious morality, we take the example of a judge. If the public
morality of a society deems that the death penalty is necessary to
keep society together and thus crystallizes this morality into law,
a judge might find himself in a conflict between public morality
and his religious morality. He might discern that after weighing
all considerations, his religious beliefs compel him not to impose
the death penalty as to do so would be immoral. If the judge
refuses to impose the death penalty where the crime warrants it,
he will be made accountable to the state which is the authority in
the realm of public morality and be held administratively liable
for failing to perform his duty to the state. If he refuses to act
according to the public morality because he finds more compelling
his religious morality where he is answerable to an authority he
deems higher than the state, then his choice is to get out of the
public morality realm where he has the duty to enforce the public
morality or continue to face the sanctions of the state for his
failure to perform his duty. See Griffin, L., The Relevance of
Religion to a Lawyers Work: Legal Ethics, Fordham Law Review
(1998), vol. 66(4), p. 1253 for a discussion of a similar dilemma
involving lawyers.
[441] Sullivan, K., supra, p. 196.
[442] Smith, S., supra, pp. 184-185. For a defense of this view, see William P.
Marshall, We Know It When We See It: The Supreme Court and
Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended
criticism of this position, see Steven D. Smith, Symbols,
Perceptions, and Doctrinal Illusions: Establishment Neutrality
and the No Establishment Test, 86 Mich. L. Rev. 266 (1987).
[443] Ostrom, V., Religion and the Constitution of the American Political
System, Emory Law Journal, vol. 39(1), p. 165, citing 1 A.
Tocqueville, Democracy in America (1945), p. 305.
[444] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[445] Devlin, P., supra, p. 22.
[446] 329 U.S. 14 (1946).
[447] Cleveland v. United States, 329 U.S. 14, p. 16.
[448] Reynolds v. United States, supra, p. 164.
[449] Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[450] Id.
[451] 226 SCRA 193 (1993).
[452] Id. at 199.
[453] Annexes A and B of the Report and Recommendation of Executive
Judge Bonifacio Sanz Maceda.
[454] Cruz, I., supra, p. 176.

EN BANC
RE: REQUEST OF MUSLIM

A.M. No. 02-2-10-SC

EMPLOYEES IN THE
DIFFERENT COURTS IN
ILIGAN CITY (RE: OFFICE
HOURS)

Present:
DAVIDE, JR., C.J.,
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,

b.

Eid-ul-Adha (Hariraya Haj) - which falls on

the 10th day of the 12th Lunar month of Zul
Hajj;

c.

Mauledan Nabi - Birthday of Prophet

Mohammad (P.B.U.H), which falls on the
12th day of the 3rd Lunar month of RabbiolAwwal;

d.

Lailatul Isra Wal Miraj - (Ascension) which

falls on the 27th day of the 8th Lunar month
of Rajjab;

e.

Muharram (Ashura) - which falls on the

10th Lunar month of Muharram; and

f.

Amon Jaded (New Year) - which falls on the

1st day of the 1st Lunar month of Muharram.

CORONA,
CARPIO
MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
Promulgated:
December 14, 2005
x------------------------------------ --------------x

RESOLUTION
CALLEJO, SR., J.:
In their Letter dated November 19, 2001 addressed to
Executive Judge Valerio M. Salazar, Regional Trial Court of Iligan
City, several Muslim employees in the different courts in the said
city request that they be allowed to enjoy the following privileges:
1.

to hold office hours from 7:30 a.m. to 3:30 p.m.

without lunch break or coffee breaks during
the month of Ramadan;

2.

to be excused from work from 10:00 a.m. to

2:00 p.m. every Friday (Muslim Prayer Day)
during the entire calendar year.

Judge Salazar forwarded the said letter-request to the Office of the

Court Administrator (OCA). Judge Salazar expressed his
conformity with the first request, i.e., allowing them to hold office
from 7:30 a.m. to 3:30 p.m. without any break during the month
ofRamadan. However, he expressed some misgivings about the
second request, i.e., excusing them from work from 10:00 a.m. to
2:00 p.m. every Friday during the entire calendar year.
In support of their requests, the Muslim employees invoke
Presidential Decree (P.D.) No. 291[1] as amended by P.D. No.
322[2] enacted by then President Ferdinand E. Marcos. The avowed
purpose of P.D. No. 291 was to reinforce national unity by
recognizing Muslim holidays and making them part of our national
holidays. Section 2 thereof, as amended by P.D. No. 322, provides
that the following are recognized Muslim holidays:
a.

Eid-ul-Fitr (Hariraya Puasa) - which falls on

the 1st day of the lunar month of Shawwal
commemorating the end of the fasting
season;

Muslims employees in the government are

excused from reporting to office during these holidays in
order that they may be able to properly observe them.
Section 3 of the same law, as amended by P.D. No. 322,
further provides that:
Sec. 3. (a) During the fasting season on the
month of Ramadan, all Muslim employees in the
national government, government-owned or
controlled
corporations,
provinces,
cities,
municipalities and other instrumentalities shall
observe office hours from seven-thirty in the
morning (7:30 a.m.) to three-thirty in the
afternoon (3:30 p.m.) without lunch break or coffee
breaks, and that there shall be no diminution of
salary or wages, provided, that the employee who
is not fasting is not entitled to the benefit of this
provision.
(b) Regulations for the implementation of this
section shall be issued together with the
implementing directives on Muslim holidays.
Pursuant thereto, the Civil Service Commission (CSC)
promulgated Resolution No. 81-1277 dated November 13, 1981
which states in part:
2.

During Ramadan the Fasting month (30

days) of the Muslims, the Civil Service
official time of 8 oclock to 12 oclock and 1
oclock to 5 oclock is hereby modified to 7:30
A.M. to 3:30 P.M. without noon break and
the difference of 2 hours is not counted as
undertime;

3.

During Friday, the Muslim pray day, Muslims

are excused from work from 10 oclock in the
morning to 2 oclock in the afternoon.

Moreover, in its Resolution No. 00-0227 dated January 26,

2000, the CSC clarified that the term Friday in the above
resolution is not limited to the Fridays during the month
of Ramadan, but refers to all Fridays of the calendar year.
However, in order not to run afoul of Section 5, [3] Rule XVII of the
Omnibus Rules Implementing Book V of Executive Order (E.O.) No.
292[4] which enjoins civil servants to render public service not less
than eight hours a day or forty (40) hours a week, the CSC

prescribes the adoption of a flexible working schedule to

accommodate the Muslims Friday Prayer Day subject to certain
conditions, e.g., the flexible working hours shall not start earlier
than 7:00 a.m. and end not later than 7:00 p.m.[5]
In the Resolution dated October 1, 2002, the Court
required the Court Administrator to study the matter. In
compliance therewith, Court Administrator Presbitero J. Velasco,
Jr. recommends that the Muslim employees in the Judiciary be
allowed to hold flexible office hours from 7:30 a.m. to 3:30 p.m.
without break during the month of Ramadan. Further, that they
be excused from work from 10:00 a.m. to 2:00 p.m. every Friday to
allow them to attend the Muslim Prayer Day. However, to
compensate for the lost hours, they should be required to observe
flexible working schedule which should start from 7:00 a.m. to
10:00 a.m. and from 2:00 p.m. to 7:00 p.m. every Friday. In that
way, the working hours mandated by the civil service rules is
complied with.
The recommendation of the Court Administrator with
respect to the matter of allowing the Muslim employees in the
Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m.
without break during the month of Ramadan is well taken. The
same has statutory basis in Section 3 (a) of P.D. No. 291, as
amended by P.D. No. 322, which categorically states that [d]uring
the fasting season in the month of Ramadan, all Muslim employees
in the national government, government-owned or controlled
corporations, provinces, cities, municipalities and other
instrumentalities shall observe office hours from seven-thirty in the
morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.)
without lunch break or coffee breaks, and that there shall be no
diminution of salary or wages ...

absolute as long as the belief is confined within

the realm of thought. The second is subject to
regulation where the belief is translated into
external acts that affect the public welfare.[6]
Justice Isagani A. Cruz explained these two concepts in this
wise:
(1) Freedom to Believe

The individual is free to believe (or

disbelieve) as he pleases concerning the hereafter.
He may indulge his own theories about life and
death; worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the
divinity of God or of any being that appeals to his
reverence; recognize or deny the immortality of
his soul in fact, cherish any religious conviction
as he and he alone sees fit. However absurd his
beliefs may be to others, even if they be hostile
and heretical to the majority, he has full freedom
to believe as he pleases. He may not be required
to prove his beliefs. He may not be punished for
his inability to do so. Religion, after all, is a
matter of faith. Men may believe what they
cannot prove. Every one has a right to his beliefs
and he may not be called to account because he
cannot prove what he believes.
(2) Freedom to Act on Ones Beliefs

The Court is not unmindful that the subject requests are

grounded on Section 5, Article III of the Constitution:

But where the individual externalizes his

beliefs in acts or omissions that affect the public,
his freedom to do so becomes subject to the
authority of the State. As great as this liberty
may be, religious freedom, like all other rights
guaranteed in the Constitution, can be enjoyed
only with a proper regard for the rights of others.
It is error to think that the mere invocation of
religious freedom will stalemate the State and
render it impotent in protecting the general
welfare. The inherent police power can be
exercised to prevent religious practices inimical to
society. And this is true even if such practices are
pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable
requirements or prohibitions of the law.

No law shall be made respecting an

establishment of religion, or prohibiting the free
exercise thereof. The 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 and political rights.

Justice Frankfurter put it succinctly: The

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.[7]

This provision contains two aspects: (1) the nonestablishment clause; and (2) the free exercise clause. The subject
requests are based on the latter and in interpreting this clause (the
free exercise clause) embodied in the Constitution, the Court has
consistently adhered to the doctrine that:

The Court recognizes that the observance of Ramadan and

the Friday Muslim Prayer Day is integral to the Islamic faith.
However, while the observance of Ramadan and allowing the
Muslim employees in the Judiciary to hold flexible office hours from
7:30 a.m. to 3:30 p.m. without any break during the month
of Ramadan finds support in Section 3 (a) of P.D. No. 291, as
amended by P.D. No. 322, there is no such basis to excuse them
from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim
Prayer Day, during the entire calendar year.

The Court, however, is constrained to deny for lack of

statutory basis the request of the Muslim employees to be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday to allow them
to attend the Muslim Prayer Day. As correctly observed by Atty.
Edna Dio, Chief, Office of the Court Attorney, in her Report dated
May 13, 2005, the CSC exceeded its authority insofar as it declared
in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim
employees are excused from work from 10:00 a.m. to 2:00
p.m. every Friday subject to certain conditions. CSC Resolution No.
81-1277 was purportedly issued pursuant to Sections 2 and 5 of
P.D. No. 291, as amended by P.D. No 322, but neither of the two
decrees mention Friday, the Muslim Prayer Day as one of the
recognized holidays.

The right to religious profession and worship

has a two-fold aspect, viz., freedom to believe and
freedom to act on ones beliefs. The first is

public is still assured of the core working hours of eight oclock in the
morning to five oclock in the afternoon;

On the other hand, the need of the State to prescribe

government office hours as well as to enforce them uniformly to all
civil servants, Christians and Muslims alike, cannot be
disregarded. Underlying Section 5,[8] Rule XVII of the Omnibus
Rules Implementing Book V of E.O. No. 292 is the interest of the
general public to be assured of continuous government service
during office hours every Monday through Friday. The said rule
enjoins all civil servants, of whatever religious denomination, to
render public service of no less than eight hours a day or forty (40)
hours a week.
To allow the Muslim employees in the Judiciary to be
excused from work from 10:00 a.m. to 2:00 p.m. every Friday
(Muslim Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then,
they would be rendering service twelve (12) hours less than that
required by the civil service rules for each month. Further, this
would encourage other religious denominations to request for
similar treatment.
The performance of religious practices, whether by the
Muslim employees or those belonging to other religious
denominations, should not prejudice the courts and the public.
Indeed, the exercise of religious freedom does not exempt anyone
from compliance with reasonable requirements of the law, including
civil service laws.
In fine, the remedy of the Muslim employees, with respect
to their request to be excused from work from 10:00 a.m. to 2:00
p.m. every Friday during the entire calendar year, is legislative,
which is to ask Congress to enact a legislation expressly exempting
them from compliance with the prescribed government working
hours.

3)

The public must be assured of a continuous service during the period of

12:00 noon to 1:00 oclock in the afternoon;

4)

The Flexible Working Hours adopted by the official or employee shall

thereafter be his regular working hours which cannot be occasionally or
periodically changed at his convenience;

5)

In the exigency of the service, working days may also be altered to

include Saturdays and Sundays, provided that employees who work on
such days may choose compensatory days-off during the weekdays,
provided that the Saturday and Sunday are regular workdays and not
cases of overtime;
Such working day may be applicable to offices with frontline services
such as Consular offices abroad, Bureau of Internal Revenue, Bureau of
Customs, Social Security System, Government Service Insurance
System, and other offices that issue licenses, permits, clearances, or
which process documents needed to have access to other services.

6)

A report of flexible working hours adopted by the department, office or

agency shall be submitted to the Civil Service Commission within
thirty (30) days of its implementation;

7)

Habitual absenteeism and tardiness shall hereafter be considered as

grave offenses.

ISAGANI A. CRUZ, CONSTITUTIONAL LAW 174 (1995), citing Cantwell v.

Connecticut, 310 U.S. 296 (1940). Also cited in Iglesia Ni Cristo v. Court of
Appeals, 259 SCRA 529 (1996); Ebralinag v. Division Superintendent of Schools of
Cebu, supra.
[7] Id. at 174-175.
[8] Supra.
[6]

ACCORDINGLY, the Court resolved to:

1. GRANT the request to allow the Muslim employees in
the Judiciary to hold office hours from 7:30 a.m. to 3:30 p.m.
without break during the month of Ramadan pursuant to Section 3
(a) of Presidential Decree No. 291, as amended by Presidential
Decree No. 322; and
2.
DENY for lack of legal basis the request that the
Muslim employees in the Judiciary be excused from work from
10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day,
during the entire calendar year.

LIBERTY OF ABODE AND OF TRAVEL

SO ORDERED.
[1] Recognizing Muslim Holidays and Providing for the Implementation, September
12, 1973.

Amending Section 2 of Presidential Decree No. 291 and Inserting a New Section on
the Regulation of Office Hours in the Month of Ramadan thereby Changing the
Numbers of All Subsequent Sections, October 28, 1973.
[3] The provision reads:
Sec. 5. Officers and employees of all departments and agencies except
those covered by special laws shall render not less than eight hours of work a
day for five days a week or a total of forty hours a week, exclusive of time for
lunch. As a general rule, such hours shall be from eight oclock in the morning
to twelve oclock noon and from one oclock to five oclock in the afternoon on
all days except Saturdays, Sundays and Holidays.
[4] Administrative Code of 1987.
[5] Civil Service Commission Resolution No. 00-0227, supra. These conditions are:
1)
Heads of departments, offices and agencies shall have the authority to
approve office working hours, provided that in such working hours,
officials and employees shall render not less than eight hours a day for
five days a week for a total of forty hours;
[2]

2)

The flexible working hours shall not start earlier than 7:00 oclock in the
morning and end later that 7:00 oclock in the evening; hence, the

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE
M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA,
PACIFICO E. MARCOS, NICANOR YIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.

HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,

SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO,
FIDEL RAMOS, RENATO DE VILLA, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary
of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff,
respectively, respondents.

PADILLA, J., dissenting:

SYLLABUS

CRUZ, J.,

dissenting:

chanro b1es

vi rtua l

1aw

libra ry

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO

TRAVEL AND RETURN TO ONES COUNTRY; GRANT THEREOF
STILL HOLDS. The death of Marcos has not plunged the
nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing
interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is
only an unpleasant memory, not a bolt of lightning to whip
the blood. This only shows that if he was at all a threat to the
national security when he was already moribund, that feeble
threat has died with him. As the government stresses, he has
been reduced to a non-person (which makes me wonder why
it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical
followers. It is only a dead body waiting to be interred in this
country. This is a tempest in a teapot. We have more
important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let
it be brought home and, buried deep and let us be done with
it forever.
PARAS, J., dissenting:

our governments act of mercy. As Shakespeare once wrote

"the quality of mercy is not strained." Surely, compassion is
the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the
question will no longer be what is right, but what is left.

chanro b1es vi rtua l 1aw li bra ry

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO

TRAVEL AND TO RETURN TO ONES COUNTRY; CITIZEN
THOUGH ALREADY DEAD STILL ENTITLED TO CERTAIN
RIGHTS. The former President, although already dead, is
still entitled to certain rights. It is not correct to say that a
dead man, since he is no longer a human being, has ceased
to have rights. For instance, our Revised Penal Code prohibits
the commission of libel against a deceased individual. And
even if we were to assume the non-existence anymore of his
human rights what about the human rights of his widow and
the other members of his family?
2. ID.; ID.; ID.; PETITION TO RETURN; REASONS FOR THE
REFUSAL TO GRANT IT REMAINED UNPROVED. Up to now,
the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces
can easily control any possible uprising or political and
military destabilization. In fact, the converse appears to be
nearer the truth, that is, if we do not allow the remains to
come, more trouble may be expected.
3. ID.; ID.; RECONCILIATION WOULD BE ACCELERATED IF
THE PETITION TO RETURN IS GRANTED. Reconciliation can
proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of
resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition
may well soften the hearts of the oppositionists; paving the
way for a united citizenry. The entire world will surely applaud

chan rob1e s virtual 1aw l ib rary

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO

TRAVEL AND TO RETURN TO ONES COUNTRY; RIGHT OF A
CITIZEN TO BE BURIED IN HIS HOMELAND. The first
cogent and decisive proposition in this case is that "Mr.
Marcos is a Filipino and, as such, entitled to return to, die and
be buried in this country." Respondents have succeeded in
denying Mr. Marcos the first two (2) rights, i.e. to return to
and die in this country. The remaining right of this Filipino
that cries out for vindication at this late hour is the right to be
buried in this country. Will the respondents be allowed to
complete the circle of denying the constitutional and human
right of Mr. Marcos to travel which, as stated in my dissenting
opinion, includes the right to return to, die and be buried in
this country? The answer should be in the negative if the
Constitution is to still prevail; the answer should be in the
negative if we are to avoid the completely indefensible act of
denying a Filipino the last right to blend his mortal remains
with a few square feet of earth in the treasured land of his
birth.
2. ID.; ID.; ID.; ID.; A CONSTITUTIONAL RIGHT. The
constitutional and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos, because he
was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we
believe) that the Constitution and all its guarantees apply to
all Filipinos, whether dictator or pauper, learned or ignorant,
religious or agnostic, as long as he is a Filipino. If a live
Marcos returning to this country did not pose a serious threat
to national security, the situation cannot be any worse with a
dead Marcos returning.
3. ID.; ID.; ID.; ID.; DENIAL OF RIGHT A THREAT TO
NATIONAL SECURITY POSED BY SUPPORTERS. It is said
that, while a dead Marcos has been rendered impotent to
threaten national security, his supporters would pose that
threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos supporters pose a greater
threat to peace and order, with Marcos deprived of his right
to burial in this country. On the other hand, if the remains of
Mr. Marcos are brought to the country and allowed the burial
to which he is constitutionally and humanly entitled, Marcos
supporters would be deprived of an otherwise potent
argument so conducive to mass protests and even violence
that their idol has been cruelly denied the right to be
buried in his homeland.
4. ID.; ID.; ID.; ID.; RIGHT TRANSCENDS DAY OF BIRTH
UNTIL DAY OF BURIAL. It is also said that Mr. Marcos, in
cadaver form, has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In the first place,
one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the
first time after his death. It was vigorously asserted long
before his death. But, more importantly, the right of every

Filipino to be buried in his country, is part of a continuing

right that starts from birth and ends only on the day he is
finally laid to rest in his country. The majority resolution, in
effect, bans Mr. Marcos burial in this country now. Without in
any way affecting my respect and regard for my brethren and
sisters in the majority, I am deeply concerned and greatly
disturbed that, with their decision banning a dead Marcos
from burial in this country, they have passed an opportunity
to defuse a constitutional crisis that, in my humble
assessment, threatens to ignite an already divided nation.
Regrettably, they have ignored the constitutional dimension
of the problem rooted in the ageless and finest tradition of
our people for respect and deference to the dead. What
predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations.
God save this country.
5. ID.; ID.; ID.; ID.; IMMEDIATE RETURN AND BURIAL IN
THE PHILIPPINES OF FORMER PRESIDENT FERDINAND E.
MARCOS, ENJOINED. The writers vote is for this Court to
ORDER the respondents to allow the immediate return and
burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the
Philippine government may impose in the interest of peace
and order.
SARMIENTO, J., dissenting:

chan rob1es v irt ual 1aw li bra ry

1. CONSTITUTIONAL LAW; EXECUTIVE POWER; LIMITATIONS

ON THE SPECIFIC POWERS, CARRIES WITH IT DIMINUTION
OF EXECUTIVE POWER. If the Constitution has imposed
limitations on specific powers of the President, it has, a
fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a
court order; or (2) by fiat of law. Had the fundamental law
intended a presidential imprimatur, it would have said so. It
would have also completed the symmetry: judicial,
congressional, and executive restraints on the right. No
amount of presumed residual executive power can amend the
Charter.
2. ID.; BILL OF RIGHTS; NOT ONLY A LIMITATION AGAINST
LEGISLATIVE ENCROACHMENT IN INDIVIDUAL LIBERTIES
BUT MORE SO, AGAINST PRESIDENTIAL INTRUSIONS. It is
well to note that the Bill of Rights stands primarily, a
limitation not only against legislative encroachments on
individual liberties, but more so, against presidential
intrusions. And especially so, because the President is the
caretaker of the military establishment that has, several
times over, been unkind to part of the population it has also
sworn to protect.
3. ID.; ID.; RIGHT TO TRAVEL; RIGHT OF A CITIZEN TO BE
BURIED IN HIS OWN COUNTRY. The military has shown no
hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed . . .") That
Mrs. Marcos has referred to President Corazon Aquino as an
illegitimate President, does not, so I submit, reinforce alleged
fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not
capable of successful destabilization effort. And only this
morning (October 27, 1989), media reported the assurances
given to foreign investors by no less than the President, of
the political and economic stability of the nation, as well as
the Governments capability to quell forces that menace the

gains of EDSA. The President has no power to deny requests

of Marcos relatives to bury Marcos in his homeland. As for the
former, let them get their just deserts here too. And let the
matter rest.

RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their
return to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino
said:
In the interest of the safety of those who will take
the death of Mr. Marcos in widely and
passionately conflicting ways, and for the
tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be
allowed to be brought to our country until such
time as the government, be it under this
administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p.
1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection of
the Constitution and all of the rights guaranteed to Filipinos under
the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R.
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc
and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar
the return of the remains of Mr. Marcos, and the other petitioners,
to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label
'right to return', including the label 'return of Marcos' remains, is in
reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion
for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration,
the burden is upon the movants, petitioner herein, to show that
there are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed
to provide a catalytic effect, have not been shown to have ceased.
On the contrary, instead of erasing fears as to the destabilization
that will be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not
Mrs. Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts of the
world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in
the Constitution is nothing new. This is recognized under the U.S.
Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The
Executive Power shall be vested in a President of
the United States of America." In Alexander
Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific
executive authorizations that follow it in [sections]
2 and 3. Hamilton stressed the difference between
the sweeping language of article II, section 1, and
the conditional language of article I, [section] 1:
"All legislative Powers herein granted shall be
vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore
to be considered, as intended merely to specify the
principal articles implied in the definition of
execution power; leaving the rest to flow from the
general grant of that power, interpreted in
confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court
accepted Hamilton's proposition, concluding that

the federal executive, unlike the Congress, could

exercise power from sources not enumerated, so
long as not forbidden by the constitutional text:
the executive power was given in general terms,
strengthened by specific terms where emphasis
was regarded as appropriate, and was limited by
direct expressions where limitation was needed. .
." The language of Chief Justice Taft in Myers
makes clear that the constitutional concept of
inherent power is not a synonym for power
without limit; rather, the concept suggests only
that not all powers granted in the Constitution
are
themselves
exhausted
by
internal
enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is
implied unless there or elsewhere expressly
limited.
[TRIBE,
AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the
President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President
under the 1973 Constitution to legislate pursuant to Amendment
No. 6 which provides:
Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act
adequately on any matter for any reason that in
his judgment requires immediate action, he may,
in order to meet the exigency, issue the necessary
decrees, orders, or letters of instruction, which
shall form part of the law of the land,
There is no similarity between the residual powers of the President
under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President
of thespecific power of legislation.
4. Among the duties of the President under the Constitution, in
compliance with his (or her) oath of office, is to protect and promote
the interest and welfare of the people. Her decision to bar the
return of the Marcoses and subsequently, the remains of Mr.
Marcos at the present time and under present circumstances is in
compliance with this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or with grave abuse
of discretion in arriving at this decision, the Court will not enjoin
the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the
petition. The death of Marcos has not plunged the nation into paroxysms of
grief as the so-called "loyalists" had hoped. By and large, it has been met
with only passing interest if not outright indifference from the people.
Clearly, the discredited dictator is in death no El Cid. Marcos dead is only
an unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when
he was already moribund that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only
a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done
with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already
expressed.
Firstly, the former President, although already dead, is still entitled to
certain rights. It is not correct to say that a dead man, since he is no longer
a human being, has ceased to have rights. For instance, our Revised Penal
Code prohibits the commission of libel against a deceased individual. And
even if we were to assume the non- existence anymore of his human rights
what about the human rights of his widow and the other members of his
family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily
control any possible uprising or political and military destabilization. In
fact, the converse appears to be nearer the truth, that is, if we do not allow
the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for
the return is granted. To refuse the request can mean a hardening of
resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy.
As Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buried in this country." I have only to add a
few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights,
i.e. to return to and die in this country, The remaining right of this Filipino
that cries out for vindication at this late hour is the right to be buried in this
country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated
in my dissenting opinion, includes the right to return to, die and be buried
in this country? The answer should be in the negative if the Constitution is

to still prevail; the answer should be in the negative if we are to avoid the
completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his
birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right
to be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is
built on the fundamental assumption (so we believe) that the Constitution
and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country
would pose a serious threat to national security and public safety. What
threat? As pointed out in my dissenting opinion, the second cogent and
decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we
have are general conclusions of national security and public safety' in
avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth,
where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity
of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests
and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the
first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to
be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the
right of every Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is finally laid to rest
in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country,
but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country
now. Without in any way affecting my respect and regard for my brethren
and sisters in the majority, I am deeply concerned and greatly disturbed
that, with their decision banning a dead Marcos from burial in this country,
they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation,
Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God
save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President

Ferdinand E. Marcos, subject to such conditions as the Philippine

government may impose in the interest of peace and order.

Separate Opinions
CRUZ, J., dissenting:

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the exPresident's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by
direct grant or by implication, the President's supposed "residual" power to
forbid citizens from entering the motherland reiterated in the resolution of
the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that
the President, upon whom executive power is vested, has
unstated residual powers which are implied from the
grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The
powers of the President are not limited to what are
expressly enumerated in the article on the Executive
Department and in scattered provisions of the
Constitution. This, notwithstanding the avowed intent of
the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so.
It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.

Nothing important has happened to change my vote for granting the

petition. The death of Marcos has not plunged the nation into paroxysms of
grief as the so-called "loyalists" had hoped. By and large, it has been met
with only passing interest if not outright indifference from the people.
Clearly, the discredited dictator is in death no El Cid. Marcos dead is only
an unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when
he was already moribund that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only
a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done
with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already
expressed.
Firstly, the former President, although already dead, is still entitled to
certain rights. It is not correct to say that a dead man, since he is no longer
a human being, has ceased to have rights. For instance, our Revised Penal
Code prohibits the commission of libel against a deceased individual. And
even if we were to assume the non- existence anymore of his human rights
what about the human rights of his widow and the other members of his
family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily
control any possible uprising or political and military destabilization. In
fact, the converse appears to be nearer the truth, that is, if we do not allow
the remains to come, more trouble may be expected.

It is well to note that the Bill of Rights stands primarily, a limitation not
only against legislative encroachments on individual liberties, but more so,
against presidential intrusions. And especially so, because the President is
the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.

Thirdly, reconciliation can proceed at a much faster pace if the petition for
the return is granted. To refuse the request can mean a hardening of
resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

That "[t]he threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").

Finally, the entire world will surely applaud our government's act of mercy.
As Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.

That Mrs. Marcos has referred to President Corazon Aquino as an

illegitimate President, does not, so I submit, reinforce alleged fears of a
massive destabilization awaiting the nation. The military has said over and
over that Marcos followers are not capable of successful destabilization
effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the
political and economic stability of the nation, as well as the Government's
capability to quell forces that menace the gains of EDSA.

PADILLA, J., dissenting:

I have no eulogies to say on the passing of Mr. Marcos. My personal

impressions, however, are beside the point. I reiterate that the President
has no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let
the matter rest.

The death of former President Ferdinand E. Marcos, which supervened after

decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buried in this country." I have only to add a
few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights,
i.e. to return to and die in this country, The remaining right of this Filipino
that cries out for vindication at this late hour is the right to be buried in this
country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated

in my dissenting opinion, includes the right to return to, die and be buried
in this country? The answer should be in the negative if the Constitution is
to still prevail; the answer should be in the negative if we are to avoid the
completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his
birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right
to be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is
built on the fundamental assumption (so we believe) that the Constitution
and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country
would pose a serious threat to national security and public safety. What
threat? As pointed out in my dissenting opinion, the second cogent and
decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we
have are general conclusions of national security and public safety' in
avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm
the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth,
where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity
of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests
and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the
first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to
be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the
right of every Filipino to be buried in his country, is part of a continuing
right that starts from birth and ends only on the day he is finally laid to rest
in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country,
but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country
NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country
now. Without in any way affecting my respect and regard for my brethren
and sisters in the majority, I am deeply concerned and greatly disturbed
that, with their decision banning a dead Marcos from burial in this country,
they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation,
Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife,
among our people, of unending hatred, recriminations and retaliations. God
save this country!

My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the exPresident's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by
direct grant or by implication, the President's supposed "residual" power to
forbid citizens from entering the motherland reiterated in the resolution of
the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that
the President, upon whom executive power is vested, has
unstated residual powers which are implied from the
grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The
powers of the President are not limited to what are
expressly enumerated in the article on the Executive
Department and in scattered provisions of the
Constitution. This, notwithstanding the avowed intent of
the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so.
It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not
only against legislative encroachments on individual liberties, but more so,
against presidential intrusions. And especially so, because the President is
the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an
illegitimate President, does not, so I submit, reinforce alleged fears of a
massive destabilization awaiting the nation. The military has said over and
over that Marcos followers are not capable of successful destabilization
effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the
political and economic stability of the nation, as well as the Government's
capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President
has no power to deny requests of Marcos relatives to bury Marcos in his

homeland. As for the former, let them get their just deserts here too. And let
the matter rest.

REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC
G.R. Nos. 99289-90 January 27, 1993
MIRIAM DEFENSOR-SANTIAGO, petitioner,
vs.
CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE
LA LLANA, Special Prosecutor; SANDIGANBAYAN and
REGIONAL TRIAL COURT OF MANILA, respondents.
Marciano P. Defensor for petitioner.
Nestor P. Ifurong for Maria S. Tatoy.
Danilo C. Cunanan for respondents.
SYLLABUS
1.
REMEDIAL
LAW;
JURISDICTION;
VOLUNTARY
APPEARANCE OF ACCUSED WHEREBY COURT ACQUIRES
JURISDICTION; INSTANCES. It has been held that where
after the filing of the complaint or information a warrant for the
arrest of the accused is issued by the trial court and the accused
either voluntarily submitted himself to the court or was duly
arrested, the court thereby acquires jurisdiction over the person of
the accused. The voluntary appearance of the accused, whereby the
court acquires jurisdiction over his person, is accomplished either
by his pleading to the merits (such as by filing a motion to quash or
other pleadings requiring the exercise of the courts jurisdiction
thereover, appearing for arraignment, entering trial) or by filing
bail.
2. ID.; ID.; ID.; BAIL CANNOT BE POSTED BEFORE CUSTODY
OF ACCUSED EITHER BY ARREST OR VOLUNTARY
SURRENDER. On the matter of bail, since the same is intended
to obtain the provisional liberty of the accused, as a rule the same
cannot be posted before custody of the accused has been acquired by
the judicial authorities either by his arrest or voluntary surrender.
3. ID.; ID.; ID.; PETITIONER ESTOPPED FROM ASSERTING
SHE WAS DENIED DUE PROCESS AFTER SHE RECOGNIZED
THE COURTS JURISDICTION. We find and so hold that
petitioner is deemed to have voluntarily submitted herself to the
jurisdiction of respondent court upon the filing of her aforequoted
"Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and
in behalf of Dr. Miriam Defensor-Santiago" wherein she expressly
sought leave "that she be considered as having placed herself under
the jurisdiction of (the Sandiganbayan) for purposes of the required
trial and other proceedings," and categorically prayed "that the bail
bond she is posting in the amount of P15,000.00 be duly accepted"
and that by said motion "she be considered as having placed herself
under the custody" of said court. Petitioner cannot now be heard to
claim otherwise for, by her own representations, she is effectively
estopped from asserting the contrary after she had earlier
recognized the jurisdiction of the court and caused it to exercise
that jurisdiction over the aforestated pleadings she filed therein.
4. ID.; ID.; ID.; ID.; FILING OF MOTIONS IN INSTANT CASE,
AN
ADMISSION
OF
ACQUIESCENCE
AND

ACKNOWLEDGMENT OF PROPRIETY OF CASH BOND. It

cannot be denied that petitioner has posted a cash bail bond of
P15,000.00 for her provisional release as evidenced by Official
Receipt No. 4292925 dated May 15, 1991 and which is even
attached as Annex C-2 to her own motion now under consideration.
This is further buttressed by the fact that petitioner thereafter also
filed a motion for the cancellation of said cash bond and for the
court to allow her provisional liberty upon the security of a
recognizance. With the filing of the foregoing motions, petitioner
should accordingly and necessarily admit her acquiescence to and
acknowledgment of the propriety of the cash bond she posted,
instead of adopting a stance which ignores the injunction for candor
and sincerity in dealing with the courts of justice.
5. ID.; EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENT;
TEMPORARY
INJUNCTION
TERMINATES
AUTOMATICALLY UPON DISMISSAL OF ACTION. Section 4,
Rule 39 of the Rules of Court provides that, unless otherwise
ordered by the court, a judgment in an action for injunction shall
not be stayed after its rendition and before an appeal is taken or
during the pendency of an appeal. And, the rule is that the
execution of a judgment decreeing the dissolution of a writ of
preliminary injunction shall not be stayed before an appeal is taken
or during the pendency of an appeal, and we see no reason why the
foregoing considerations should not apply to a temporary
restraining order. The rationale therefor is that even in cases where
an appeal is taken from a judgment dismissing an action on the
merits, the appeal does not suspend the judgment, hence the
general rule applies that a temporary injunction terminates
automatically on the dismissal of the action.
6. ID.; ID.; ID.; ID.; SPECIAL ORDER OF COURT NECESSARY
FOR REINSTATEMENT OF AN INJUNCTION. It has similarly
been held that an order of dissolution of an injunction may be
immediately effective, even though it is not final. A dismissal,
discontinuance, or non-suit of an action in which a restraining
order or temporary injunction has been granted operates as a
dissolution of the restraining order or temporary injunction and no
formal order of dissolution is necessary to effect such dissolution.
Consequently, a special order of the court is necessary for the
reinstatement of an injunction. There must be a new exercise of
judicial power.
7. ID.; ORIGINAL AND CIVIL ACTION FILED BEFORE
SUPREME COURT; DOES NOT INTERRUPT PROCEEDINGS
BEFORE A LOWER COURT ABSENT A WRIT OF INJUNCTION.
The original and special civil action filed with this Court is, for
all intents and purposes, an invocation for the exercise of its
supervisory powers over the lower courts. It does not have the effect
of divesting the inferior courts of jurisdiction validly acquired over
the case pending before them. It is elementary that the mere
pendency of a special civil action for certiorari, commenced in
relation to a case pending before a lower court, does not even
interrupt the course of the latter when there is no writ of injunction
restraining it. The inevitable conclusion is that for as long as no
writ of injunction or restraining order is issued in the special civil
action for certiorari, no impediment exists and there is nothing to
prevent the lower court from exercising its jurisdiction and
proceeding with the case pending before it. And, even if such
injunctive writ or order is issued, the lower court nevertheless
continues to retain its jurisdiction over the principal action.
8. ID.; COURTS; HAVE INHERENT POWERS IMPLIED FROM A
GENERAL GRANT OF JURISDICTION. Courts possess certain
inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on

them. These inherent powers are such powers as are necessary for
the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient
and suitable to the execution of their granted powers; and include
the power to maintain the courts jurisdiction and render it effective
in behalf of the litigants.
9. ID.; ID.; ID.; JURISDICTION IN AID OF ITS AUTHORITY
OVER MUNICIPAL MATTER. While a court may be expressly
granted the incidental powers necessary to effectuate its
jurisdiction, a grant of jurisdiction, in the absence of prohibitive
legislation, implies the necessary and usual incidental powers
essential to effectuate it, and, subject to existing laws and
constitutional provisions, every regularly constituted court has the
power to do all things that are reasonably necessary for the
administration of justice within the scope of its jurisdiction. Hence,
demands, matters, or questions ancillary or incidental to, or
growing out of, the main action, and coming within the above
principles, may be taken cognizance of by the court and determined,
since such jurisdiction is in aid of its authority over the principal
matter, even though the court may thus be called on to consider
and decide matters which, as original causes of action, would not be
within its cognizance.
10. ID.; ID.; ID.; PARTY LITIGANTS WHOSE ACTS RENDER
COURTS JURISDICTION INEFFECTIVE MAY BE SUBJECTED
TO COERCIVE MEASURES. A court has the inherent power to
make interlocutory orders necessary to protect its jurisdiction. Such
being the case, with more reason may a party litigant be subjected
to proper coercive measures where he disobeys a proper order, or
commits a fraud on the court or the opposing party, the result of
which is that the jurisdiction of the court would be ineffectual.
What ought to be done depends upon the particular circumstances.
11. ID.; ID.; ID.; CASE AT BAR. Turning now to the case at bar,
petitioner does not deny and, as a matter of fact, even made a
public statement that she had every intention of leaving the
country allegedly to pursue higher studies abroad. We uphold the
course of action adopted by the Sandiganbayan in taking judicial
notice of such fact of petitioners plan to go abroad and in thereafter
issuing sua sponte the hold departure order, in justified consonance
with our preceding disquisition. To reiterate, the hold departure
order is but an exercise of respondent courts inherent power to
preserve and to maintain the effectiveness of its jurisdiction over
the case and the person of the accused.
12. ID.; BAIL; A PERSON ADMITTED TO BAIL MAY BE
PROHIBITED FROM LEAVING THE COUNTRY. It will be
recalled that petitioner has posted bail which we have declared
legally valid and complete despite the absence of petitioner at the
time of filing thereof, by reason of the peculiar circumstances and
grounds hereinbefore enunciated and which warrant a relaxation of
the aforecited doctrine in Feliciano. Perforce, since under the
obligations assumed by petitioner in her bail bond she holds herself
amenable at all times to the orders and processes of the court, she
may legally be prohibited from leaving the country during the
pendency of the case.
13. ID.; CIVIL PROCEDURE; SUPREME COURT WILL NOT
ENTERTAIN DIRECT RESORT TO IT WHERE RELIEF IS
AVAILABLE IN LOWER COURTS. We discern in the
proceedings in this case a propensity on the part of petitioner, and,
for that matter, the same may be said of a number of litigants who
initiate recourses before us, to disregard the hierarchy of courts in
our judicial system by seeking relief directly from this Court

despite the fact that the same is available in the lower courts in the
exercise of their original or concurrent jurisdiction, or is even
mandated by law to be sought therein. This practice must be
stopped, not only because of the imposition upon the precious time
of this Court but also because of the inevitable and resultant delay,
intended or otherwise, in the adjudication of the case which often
has to be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to resolve
the issues since this Court is not a trier of facts. We, therefore,
reiterate the judicial policy that this Court will not entertain direct
resort to it unless the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for
the exercise of our primary jurisdiction.
14. ID.; ID.; ID.; CASE AT BAR. Where, as in the present case, a
hold departure order has been issued ex parte or motu proprio by
said court, the party concerned must first exhaust the appropriate
remedies therein, through a motion for reconsideration or other
proper submissions, or by the filing of the requisite application for
travel abroad. Only where all the conditions and requirements for
the issuance of the extraordinary writs of certiorari, prohibition or
mandamus indubitably obtain against a disposition of the lower
courts may our power of supervision over said tribunals be invoked
through the appropriate petition assailing on jurisdictional or
clearly valid grounds their actuations therein.

RESOLUTION
REGALADO, J.:
Filed directly with the Court, ostensibly as an incident in the
present special civil action, is petitioner's so-called "Motion to
Restrain the Sandiganbayan from Enforcing its Hold Departure
Order with Prayer for the Issuance of a Temporary Restraining
Order and/or Preliminary Injunction, with Motion to Set Pending
Incident for Hearing." Despite the impropriety of the mode adopted
in elevating the issue to us, as will hereinafter be discussed, we will
disregard the procedural gaffe in the interest of an early resolution
hereof.
The chronology of events preceding the instant motion is best
summarized to readily provide a clear understanding and
perspective of our disposition of this matter, thus:
1. On May 13, 1991, an information dated May 9, 1991 and
docketed as Criminal Case No. 16698 was filed against petitioner
with the Sandiganbayan for alleged violation of Section 3(e),
Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act.
2. On May 14, 1991, an order of arrest was issued in said case
against herein petitioner by Presiding Justice Francis E.
Garchitorena of the Sandiganbayan, with bail for the release of the
accused fixed at P15,000.00. 1
3. On even date, petitioner filed an "Urgent Ex-parte Motion for
Acceptance of Cash Bail Bond for and in Behalf of Dr. Miriam
Defensor-Santiago," 2 which pertinently states in part:
xxx xxx xxx
3. As a result of the vehicular collision, she
suffered extensive physical injuries which

required surgical intervention. As of this time, her

injuries, specifically in the jaw or gum area of the
mouth, prevents her to speak (sic) because of
extreme pain. Further, she cannot for an extended
period be on her feet because she is still in
physical pain. . . . .
4. On the other hand, the accused Miriam
Defensor Santiago seeks leave of this Honorable
Court that she be considered as having placed
herself under the jurisdiction of this Honorable
Court, for purposes of the required trial and other
proceedings and further seeks leave of this
Honorable Court that the recommended bail bond
of P15,000.00 that she is posting in cash be
accepted.
xxx xxx xxx
WHEREFORE, it is respectfully prayed of this
Honorable Court that the bail bond she is posting
in the amount of P15,000.00 be duly accepted, and
that by this motion, she be considered as having
placed herself under the custody of this Honorable
Court and dispensing of her personal appearance
for now until such time she will (sic) have
recovered sufficiently from her recent near fatal
accident.
Further, on the above basis, it is also respectfully
prayed that the warrant for her arrest be
immediately recalled.
xxx xxx xxx
4. Also on the same day, the Sandiganbayan issued a
resolution 3 authorizing petitioner to post a cash bond for her
provisional liberty without need for her physical appearance until
June 5, 1991 at the latest, unless by that time her condition does
not yet permit her physical appearance before said court. On May
15, 1991, petitioner filed a cash bond in the amount of P15,000.00,
aside from the other legal fees. 4
5. On May 21, 1991, respondent Ombudsman Conrado M. Vasquez
filed with the Sandiganbayan a manifestation "that accused Miriam
Defensor-Santiago appeared in his office in the second floor of the
Old NAWASA Building located in Arroceros Street, Ermita, Manila
at around 3:30 o'clock in the afternoon of May 20, 1991. She was
accompanied by a brother who represented himself to be Atty.
Arthur Defensor and a lady who is said to be a physician. She came
and left unaided, after staying for about fifteen minutes. 5
6. Acting on said manifestation, the Sandiganbayan issued a
resolution also on May 21, 1991, setting the arraignment of the
accused for May 27, 1991, and setting aside the court's resolution of
May 14, 1991 which ordered her appearance before the deputy clerk
of the First Division of said court on or before June 5, 1991. 6
7. In a motion dated May 22, 1991, petitioner asked that her cash
bond be cancelled and that she be allowed provisional liberty upon
a recognizance. She contended that for her to continue remaining
under bail bond may imply to other people that she has intentions
of fleeing, an intention she would like to prove as baseless. 7

8. Likewise on May 24, 1991, petitioner filed with this Court a

petition for certiorari and prohibition with preliminary injunction,
and a subsequent addendum thereto, seeking to enjoin the
Sandiganbayan and the Regional Trial Court of Manila from
proceeding with Criminal Cases Nos. 12298 (for violation of Section
3[e] of Republic Act No. 3019), 91-94555 (violation of Presidential
Decree No. 46), and 91-94897 (for libel), respectively. Consequently,
a temporary restraining order was issued by this Court on May 24,
1991, enjoining the Sandiganbayan and the Regional Trial Court of
Manila, Branch 3, from proceeding with the criminal cases pending
before them. This Court, in issuing said order, took into
consideration the fact that according to petitioner, her arraignment,
originally set for June 5, 1991, was inexplicably advanced to May
27, 1991, hence the advisability of conserving and affording her the
opportunity to avail herself of any remedial right to meet said
contingency.
9. On May 27, 1991, the Sandiganbayan issued an order deferring:
(a) the arraignment of petitioner until further advice from the
Supreme Court; and (b) the consideration of herein petitioner's
motion to cancel her cash bond until further initiative from her
through counsel. 8
10. On January 18, 1992, this Court rendered a decision dismissing
the petition for certiorari and lifting and setting aside the
temporary restraining order previously issued. 9 The motion for
reconsideration filed by petitioner was eventually denied with
finality in this Court's resolution dated September 10, 1992.
11. Meanwhile, in a resolution adopted on July 6, 1992, the
Sandiganbayan issued a hold departure order against petitioner
which reads as follows:
Considering the information in media to the effect
that accused Santiago intends to leave the country
soon for an extended stay abroad for study
purposes, considering the recent decision of the
Supreme
Court
dismissing
her
petition
promulgated on January 13, 1992, although the
same is still subject of a Motion for
Reconsideration from the accused, considering
that the accused has not yet been arraigned, nor
that she has not (sic) even posted bail the same
having been by reason of her earlier claim of being
seriously indisposed, all of which were overtaken
by a restraining order issued by the Supreme
Court in G.R. No. 99289 and No. 99290 dated May
24, 1991, the accused is ordered not to leave the
country and the Commission on Immigration and
Deportation is ordered not to allow the departure
of the accused unless authorized from (sic) this
Court. 10
The hold departure order was issued by reason of the
announcement made by petitioner, which was widely publicized in
both print and broadcast media, that she would be leaving for the
United States to accept a fellowship supposedly offered by the John
F. Kennedy School of Government at Harvard University.
Petitioner likewise disclosed that she would be addressing Filipino
communities in the United States in line with her crusade against
election fraud and other aspects of graft and corruption.
In the instant motion submitted for our resolution, petitioner
argues that:

1. The Sandiganbayan acted without or in excess

of jurisdiction and with grave abuse of discretion
in issuing the hold departure order considering
that it had not acquired jurisdiction over the
person of the petitioner.
2. The Sandiganbayan blatantly disregarded basic
principles of judicial comity and due deference
owing to a superior tribunal when it issued the
hold departure order despite the pendency of
petitioner's motion for reconsideration with this
Honorable Court.
3. The right to due process of law, the right to
travel and the right to freedom of speech are
preferred, pre-eminent rights enshrined not only
in the Constitution but also in the Universal
Declaration of Human Rights which can be validly
impaired only under stringent criteria which do
not obtain in the instant case.
4. The hold departure order in the instant case
was issued under disturbing circumstances which
suggest political harassment and persecution.
5. On the basis of petitioner's creditable career in
the bench and bar and her characteristic
transparency and candor, there is no reasonable
ground to fear that petitioner will surreptitiously
flee the country to evade judicial processes. 11
I. Petitioner initially postulates that respondent court never
acquired jurisdiction over her person considering that she has
neither been arrested nor has she voluntarily surrendered, aside
from the fact that she has not validly posted bail since she never
personally appeared before said court. We reject her thesis for being
factually and legally untenable.
It has been held that where after the filing of the complaint or
information a warrant for the arrest of the accused is issued by the
trial court and the accused either voluntarily submitted himself to
the court or was duly arrested, the court thereby acquires
jurisdiction over the person of the accused. 12 The voluntary
appearance of the accused, whereby the court acquires jurisdiction
over his person, is accomplished either by his pleading to the merits
(such as by filing a motion to quash or other pleadings requiring the
exercise of the court's jurisdiction thereover, appearing for
arraignment, entering trial) or by filing bail. On the matter of bail,
since the same is intended to obtain the provisional liberty of the
accused, as a rule the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his
arrest or voluntary surrender. 13
In the case at bar, it becomes essential, therefore, to determine
whether respondent court acquired jurisdiction over the person of
herein petitioner and, correlatively, whether there was a valid
posting of bail bond.
We find and so hold that petitioner is deemed to have voluntarily
submitted herself to the jurisdiction of respondent court upon the
filing of her aforequoted "Urgent Ex-parte Motion for Acceptance of
Cash Bail Bond for and in behalf of Dr. Miriam Defensor-Santiago"
wherein she expressly sought leave "that she be considered as
having placed herself under the jurisdiction of (the Sandiganbayan)

for purposes of the required trial and other proceedings," and

categorically prayed "that the bail bond she is posting in the
amount of P15,000.00 be duly accepted" and that by said motion
"she be considered as having placed herself under the custody" of
said court. Petitioner cannot now be heard to claim otherwise for,
by her own representations, she is effectively estopped from
asserting the contrary after she had earlier recognized the
jurisdiction of the court and caused it to exercise that jurisdiction
over the aforestated pleadings she filed therein.
It cannot be denied that petitioner has posted a cash bail bond of
P15,000.00 for her provisional release as evidenced by Official
Receipt No. 4292925 dated May 15, 1991 and which is even
attached as Annex C-2 to her own motion now under consideration.
This is further buttressed by the fact that petitioner thereafter also
filed a motion for the cancellation of said cash bond and for the
court to allow her provisional liberty upon the security of a
recognizance. With the filing of the foregoing motions, petitioner
should accordingly and necessarily admit her acquiescence to and
acknowledgment of the propriety of the cash bond she posted,
instead of adopting a stance which ignores the injunction for candor
and sincerity in dealing with the courts of justice.
Petitioner would also like to make capital of the fact that she did
not personally appear before respondent court to file her cash bond,
thereby rendering the same ineffectual. Suffice it to say that in this
case, it was petitioner herself, in her motion for the acceptance of
the cash bond, who requested respondent court to dispense with her
personal appearance until she shall have recovered sufficiently
from her vehicular accident. It is distressing that petitioner should
now turn around and fault respondent court for taking a
compassionate stand on the matter and accommodating her own
request for acceptance of the cash bond posted in her absence.
II. Petitioner argues that the Sandiganbayan disregarded the rule
of judicial comity when it issued the hold departure order despite
the pendency of her motion for reconsideration of the decision of
this Court which dismissed her petition. She claims that if the
principle of judicial comity applies to prevent a court from
interfering with the proceedings undertaken by a coordinate court,
with more reason should it operate to prevent an inferior court,
such as the Sandiganbayan, from interfering with the instant case
where a motion for reconsideration was still pending before this
Court. She contends further that the hold departure order
contravenes the temporary restraining order previously issued by
this court enjoining the Sandiganbayan from proceeding with the
criminal case pending before it.
It will be remembered that the Court rendered a decision in the
present case on January 18, 1992 dismissing the petition
for certiorari filed in this case and lifting and setting aside the
temporary restraining order it previously issued. It is petitioner's
submission that the filing of her motion for reconsideration stayed
the lifting of the temporary restraining order, hence respondent
court continued to be enjoined from acting on and proceeding with
the case during the pendency of the motion for reconsideration. We
likewise reject this contention which is bereft of merit.
Section 4, Rule 39 of the Rules of Court provides that, unless
otherwise ordered by the court, a judgment in an action for
injunction shall not be stayed after its rendition and before an
appeal is taken or during the pendency of an appeal. And, the rule
is that the execution of a judgment decreeing the dissolution of a
writ of preliminary injunction shall not be stayed before an appeal
is taken or during the pendency of an appeal, 14 and we see no

reason why the foregoing considerations should not apply to a

temporary restraining order. The rationale therefor is that even in
cases where an appeal is taken from a judgment dismissing an
action on the merits, the appeal does not suspend the judgment,
hence the general rule applies that a temporary injunction
terminates automatically on the dismissal of the action. 15
It has similarly been held that an order of dissolution of an
injunction may be immediately effective, even though it is not
final. 16 A dismissal, discontinuance, or non-suit of an action in
which a restraining order or temporary injunction has been granted
operates as a dissolution of the restraining order or temporary
injunction 17 and no formal order of dissolution is necessary to effect
such dissolution. 18 Consequently, a special order of the court is
necessary for the reinstatement of an injunction. 19 There must be a
new exercise of .judicial power. 20
The reason advanced in support of the general rule has long since
been duly explained, to wit:
. . . The court of this State, relying upon the last of
the two clauses quoted, held that an appeal from
an order dissolving an injunction continued the
injunction in force. The evils which would result
from such a holding are forcibly pointed out by
Judge Mitchell in a dissenting opinion. He said:
"Although a plaintiff's papers are so insufficient
on their face or so false in their allegations that if
he should apply on notice for an injunction, any
court would, on a hearing, promptly refuse to
grant one, yet, if he can find anywhere in the
State a judge or court commissioner who will
improvidently grant one ex parte, which the court
on the first and only hearing ever had dissolves,
he can, by appealing and filing a bond, make
the ex parte injunction impervious to all judicial
interference until the appeal is determined in this
court." . . . Such a result is so unjust and so utterly
inconsistent with all known rules of equity
practice that no court should adopt such a
construction unless absolutely shut up to it by the
clear and unequivocal language of the statute. . . .
. 21
This ruling has remained undisturbed over the decades and was
reiterated in a case squarely in point and of more recent vintage:
The SEC's orders dated June 27, 1989 and July
21, 1989 (directing the secretary of UDMC to call
a stockholders' meeting, etc.) are not premature,
despite the petitioners then pending motion for
reconsideration of the decision of the Court of
Appeals. The lifting by the Court of Appeals of its
writ of preliminary injunction in C.A.-G.R. SP No.
17435 cleared the way for the implementation by
the SEC's en banc resolution in SEC EB Case No.
191. The SEC need not wait for the Court of
Appeals to resolve the petitioner's motion for
reconsideration for a judgment decreeing the
dissolution of a preliminary injunction is
immediately executory. It shall not be stayed after
its rendition and before an appeal is taken or
during the pendency of an appeal. . . . . 22

On the bases of the foregoing pronouncements, there is no question

that with the dismissal of the petition forcertiorari and the lifting of
the restraining order, nothing stood to hinder the Sandiganbayan
from acting on and proceeding with the criminal cases filed against
herein petitioner. At any rate, as we have earlier mentioned, the
motion for reconsideration filed by petitioner was denied with
finality in our resolution dated September 10, 1992.
Petitioner further posits, however, that the filing of the instant
special civil action for certiorari divested the Sandiganbayan of its
jurisdiction over the case therein. Whether generated by
misconception or design, we shall address this proposition which, in
the first place, had no reason for being and should not hereafter be
advanced under like or similar procedural scenarios.
The original and special civil action filed with this Court is, for all
intents and purposes, an invocation for the exercise of its
supervisory powers over the lower courts. It does not have the effect
of divesting the inferior courts of jurisdiction validly acquired over
the case pending before them. It is elementary that the mere
pendency of a special civil action for certiorari, commenced in
relation to a case pending before a lower court, does not even
interrupt the course of the latter when there is no writ of injunction
restraining it. 23 The inevitable conclusion is that for as long as no
writ of injunction or restraining order is issued in the special civil
action for certiorari, no impediment exists and there is nothing to
prevent the lower court from exercising its jurisdiction and
proceeding with the case pending before it. And, even if such
injunctive writ or order is issued, the lower court nevertheless
continues to retain its jurisdiction over the principal action.
III. It is further submitted by petitioner that the hold departure
order violates her right to due process, right to travel and freedom
of speech.
First, it is averred that the hold departure order was issued
without notice and hearing. Much is made by petitioner of the fact
that there was no showing that a motion to issue a hold departure
order was filed by the prosecution and, instead, the same was
issued ex mero motu by the Sandiganbayan. Petitioner is in error.
Courts possess certain inherent powers which may be said to be
implied from a general grant of jurisdiction, in addition to those
expressly conferred on them. 24 These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of
jurisdiction; 25 or essential to the existence, dignity and functions of
the courts, 26 as well as to the due administration of justice; 27 or are
directly appropriate, convenient and suitable to the execution of
their granted powers; 28 and include the power to maintain the
court's jurisdiction and render it effective in behalf of the
litigants. 29
Therefore, while a court may be expressly granted the incidental
powers necessary to effectuate its jurisdiction, a grant of
jurisdiction, in the absence of prohibitive legislation, implies the
necessary and usual incidental powers essential to effectuate it,
and, subject to existing laws and constitutional provisions, every
regularly constituted court has the power to do all things that are
reasonably necessary for the administration of justice within the
scope of its jurisdiction. Hence, demands, matters, or questions
ancillary or incidental to, or growing out of, the main action, and
coming within the above principles, may be taken cognizance of by
the court and determined, since such jurisdiction is in aid of its
authority over the principal matter, even though the court may

thus be called on to consider and decide matters which, as original

causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make interlocutory
orders necessary to protect its jurisdiction. 30Such being the case,
with more reason may a party litigant be subjected to proper
coercive measures where he disobeys a proper order, or commits a
fraud on the court or the opposing party, the result of which is that
the jurisdiction of the court would be ineffectual. What ought to be
done depends upon the particular circumstances. 31
Turning now to the case at bar, petitioner does not deny and, as a
matter of fact, even made a public statement that she had every
intention of leaving the country allegedly to pursue higher studies
abroad. We uphold the course of action adopted by the
Sandiganbayan in taking judicial notice of such fact of petitioner's
plan to go abroad and in thereafter issuing sua sponte the hold
departure order, in justified consonance with our preceding
disquisition. To reiterate, the hold departure order is but an
exercise of respondent court's inherent power to preserve and to
maintain the effectiveness of its jurisdiction over the case and the
person of the accused.
Second, petitioner asseverates that considering that she is leaving
for abroad to pursue further studies, there is no sufficient
justification for the impairment of her constitutional right to travel;
and that under Section 6, Article III of the 1987 Constitution, the
right to travel may be impaired only when so required in the
interest of national security, public safety or public health, as may
be provided by law.
It will be recalled that petitioner has posted bail which we have
declared legally valid and complete despite the absence of petitioner
at the time of filing thereof, by reason of the peculiar circumstances
and grounds hereinbefore enunciated and which warrant a
relaxation of the aforecited doctrine in Feliciano. Perforce, since
under the obligations assumed by petitioner in her bail bond she
holds herself amenable at all times to the orders and processes of
the court, she may legally be prohibited from leaving the country
during the pendency of the case. This was the ruling we handed
down in Manotoc, Jr. vs. Court of Appeals, et al., 32 to the effect
that:
A court has the power to prohibit a person
admitted to bail from leaving the Philippines. This
is a necessary consequence of the nature and
function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines
bail as the security required and given for the
release of a person who is in custody of the law,
that he will appear before any court in which his
appearance may be required as stipulated in the
bail bond or recognizance.
Its object is to relieve the accused of imprisonment
and the state of the burden of keeping him,
pending the trial, and at the same time, to put the
accused as much under the power of the court as if
he were in custody of the proper officer, and to
secure the appearance of the accused so as to
answer the call of the court and do what the law
may require of him.

The condition imposed upon petitioner to make

himself available at all times whenever the court
requires his presence operates as a valid
restriction on his right to travel. As we have held
in People vs. Uy Tuising, 61 Phil. 404 (1935):
. . . the result of the obligation
assumed by appellee (surety) to
hold the accused amenable at all
times to the orders and processes
of the lower court, was to
prohibit said accused from
leaving the jurisdiction of the
Philippines, because, otherwise,
said orders and processes will be
nugatory, and inasmuch as the
jurisdiction of the courts from
which they issued does not
extend beyond that of the
Philippines they would have no
binding force outside of said
jurisdiction.
Indeed, if the accused were allowed to leave the
Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
This was reiterated in a more recent case where we held:
Petitioner thus theorizes that under the 1987
Constitution, Courts can impair the right to travel
only on the grounds of "national security, public
safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution
should be interpreted to mean that while the
liberty of travel may be impaired even without
Court Order, the appropriate executive officers or
administrative authorities are not armed with
arbitrary discretion to impose limitations. They
can impose limits only on the basis of "national
security, public safety, or public health" and "as
may be provided by law," a limitive phrase which
did not appear in the 1973 text (The Constitution,
Bernas, Joaquin, G., S.J., Vol. I, First Edition,
197, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on
international travel imposed under the previous
regime when there was a Travel Processing
Center, which issued certificates of eligibility to
travel upon application of an interested party (See
Salonga v. Hermoso & Travel Processing Center,
No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution
should by no means be construed as delimiting the
inherent power of the Courts to use all means
necessary to carry their orders into effect in
criminal cases pending before them. When by law
jurisdiction is conferred on a Court or judicial
officer, all auxiliary writs, processes and other
means necessary to carry it into effect may be

employed by such Court or officer (Rule 135,

Section 6, Rules of Court).

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos,
Jr., JJ., concur.

xxx xxx xxx

. . . Holding an accused in a criminal case within
the reach of the Courts by preventing his
departure from the Philippines must be
considered as a valid restriction on his right to
travel so that he may be dealt with in accordance
with law. The offended party in any criminal
proceeding is the People of the Philippines. It is to
their best interest that criminal prosecutions
should run their course and proceed to finality
without undue delay, with an accused holding
himself amenable at all times to Court Orders and
processes. 33
One final observation. We discern in the proceedings in this case a
propensity on the part of petitioner, and, for that matter, the same
may be said of a number of litigants who initiate recourses before
us, to disregard the hierarchy of courts in our judicial system by
seeking relief directly from this Court despite the fact that the
same is available in the lower courts in the exercise of their original
or concurrent jurisdiction, or is even mandated bylaw to be sought
therein. This practice must be stopped, not only because of the
imposition upon the precious time of this Court but also because of
the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred
to the lower court as the proper forum under the rules of procedure,
or as better equipped to resolve the issues since this Court is not a
trier of facts. We, therefore, reiterate the judicial policy that this
Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment of a
remedy within and calling for the exercise of our primary
jurisdiction.
For the guidance of the bench and the bar, we elucidate that such
policy includes the matter of petitions or motions involving hold
departure orders of the trial or lower courts. Parties with pending
cases therein should apply for permission to leave the country from
the very same courts which, in the first instance, are in the best
position to pass upon such applications and to impose the
appropriate conditions therefor since they are conversant with the
facts of the cases and the ramifications or implications thereof.
Where, as in the present case, a hold departure order has been
issued ex parte or motu propio by said court, the party concerned
must first exhaust the appropriate remedies therein, through a
motion for reconsideration or other proper submissions, or by the
filing of the requisite application for travel abroad. Only where all
the conditions and requirements for the issuance of the
extraordinary writs of certiorari, prohibition or mandamus
indubitably obtain against a disposition of the lower courts may our
power of supervision over said tribunals be invoked through the
appropriate petition assailing on jurisdictional or clearly valid
grounds their actuations therein.
WHEREFORE, with respect to and acting on the motion now before
us for resolution, the same is hereby DENIED for lack of merit.
SO ORDERED.

# Footnotes
1 Annex 1, Consolidated Comment of Public
Respondents.
2 Annex 2, id.
3 Rollo, Vol. II, 594.
4 Official Receipts Nos. 4292925, 5775510 and
3276456; Rollo, 595.
5 Annex 3, Consolidated Comment of Public
Respondents.
6 Annex 4, id.
7 Annex 5, id.
8 Rollo, Vol. II, 599.
9 Ibid., Vol. I, 495.
10 Rollo, 644.
11 Rollo, 573.
12 Crespo vs. Mogul, et al., 151 SCRA 462 (1987).
13 Feliciano vs. Pasicolan, et al., 112 Phil. 781 (1961);
Mendoza vs. Court of First Instance of Quezon, et al., 51
SCRA 369 (1973).
14 Capistrano, et al. vs. Pea, et al., 78 Phil. 749 (1947).
15 State vs. Neveau, 295 NW 718.
16 Poole, et al., vs. Giles, et al., 248 SW 2d 464.
17 42 Am Jur 2d, Injunctions S291.
18 Rochelle vs. State, 75 So. 2d 268.
19 43A CJS, Judgments 617.
20 Chasnoff vs. Porto, et al., 99 A 2d 189.
21 A.S. Watson & Co., Ltd. vs. Enriquez, et al., 1 Phil.
480 (1902).
22 Crisostomo vs. Securities and Exchange Commission,
et al., 179 SCRA 146 (1989).
23 Peza, et al. vs. Alikpala, etc., et al., 160 SCRA 31
(1988); Aparicio vs. Andal, et al., 175 SCRA 569 (1989).
24 21 CJS, Courts 41.
25 State ex rel. Andrews, et al. vs. Superior Court of
Maricopa County, et al., 5 P 2d 192.
26 In re Integration of Nebraska State Bar Association,
114 ALR 151.
27 Fuller vs. State, 57 So. 806.
28 Clark vs. Austin, 101 SW 2d 977.
29 21 CJS, Courts 134.
30 Ibid., 136-137.
31 In re Slimmer's Estate 169 NW 536.
32 142 SCRA 149 (1986).
33 Silverio vs. Court of Appeals, et al., 195 SCRA 760
(1991).

THIRD DIVISION
[G.R. No. 141529. June 6, 2001]
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs.
COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and
travel, are being invoked to set aside two resolutions of the Court of
Appeals which fixed bail at P5,500,000.00 and imposed conditions
on change of residence and travel abroad.
For misappropriating amounts equivalent to P5,500,000.00,
petitioner was convicted of estafa by the Regional Trial Court of
Pasig City[1] and was sentenced to four years and two months
of prision correccional, as minimum, to eight years of prision
mayor as maximum, in addition to one (1) year for each additional

P10,000.00 in excess of P22,000.00 but in no case shall it exceed

twenty (20) years.[2] He filed a notice of appeal, and moved to be
allowed provisional liberty under the cash bond he had filed earlier
in the proceedings. The motion was denied by the trial court in an
order dated February 17, 1999.
After the records of the case were transmitted to the Court of
Appeals, petitioner filed with the said court a Motion to Fix Bail
For the Provisional Liberty of Accused-Appellant Pending Appeal,
invoking the last paragraph of Section 5, Rule 114 of the 1997
Revised Rules of Court. Asked to comment on this motion, the
Solicitor General opined that petitioner may be allowed to post bail
in the amount of P5,500,000.00 and be required to secure a
certification/guaranty from the Mayor of the place of his residence
that he is a resident of the area and that he will remain to be so
until final judgment is rendered or in case he transfers residence, it
must be with prior notice to the court and private
complainant.[3] Petitioner filed a Reply, contending that the
proposed bail of P5,500,000.00 was violative of his right against
excessive bail.
The assailed resolution of the Court of Appeals[4], issued on
October 6, 1999, upheld the recommendation of the Solicitor
General; thus, its dispositive portion reads:
WHEREFORE, premises considered, the Motion to Fix Bail For
Provisional Liberty of Accused-Appellant Pending Appeal is hereby
GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap
is hereby ALLOWED TO POST BAIL in the amount of Five Million
Five Hundred Thousand (P5,500,000.00) Pesos, subject to the
following conditions, viz.:
(1) He
(accused-appellant)
secures
a
certification/guaranty from the Mayor of the place of
his residence that he is a resident of the area and
that he will remain to be a resident therein until final
judgment is rendered or in case he transfers
residence, it must be with prior notice to the court;
(2)

The Commission of Immigration and Deportation

(CID) is hereby directed to issue a hold departure
order against accused-appellant; and

(3)

The accused-appellant shall forthwith surrender

his passport to the Division Clerk of Court for
safekeeping until the court orders its return;

(4)

Any violation of the aforesaid conditions shall cause

the forfeiture of accused-appellants bail bond, the
dismissal of appeal and his immediate arrest and
confinement in jail.

SO ORDERED.[5]
A motion for reconsideration was filed, seeking the reduction
of the amount of bail fixed by respondent court, but was denied in a
resolution issued on November 25, 1999. Hence, this petition.

The respondent Court of Appeals unduly restricted petitioners

constitutional liberty of abode and travel in imposing the
other conditions for the grant of bail.
Petitioner contends that the Court of Appeals, by setting bail
at a prohibitory amount, effectively denied him his right to bail. He
challenges the legal basis of respondent court for fixing bail at
P5,500,000.00, which is equivalent to the amount of his civil
liability to private complainant Manila Mahogany Marketing
Corporation, and argues that the Rules of Court never intended for
the civil liability of the accused to be a guideline or basis for
determining the amount of bail. He prays that bail be reduced to at
least P40,000.00, citing the maximum amount of bail that can be
posted for the crime of estafa under the 1996 Bail Bond Guide, or
P20,000.00, equivalent to the amount of bail he posted during the
trial of the case.[6]
On the other hand, the Solicitor General maintains that no
grave abuse of discretion could be ascribed to the Court of Appeals
for fixing the amount of bail at P5,500,000.00 considering the
severity of the penalty imposed, the weight of the evidence against
petitioner, and the gravity of the offense of which petitioner was
convicted by the RTC. He asserted that the P5,500,000.00 not only
corresponded to civil liability but also to the amount of fraud
imputed to petitioner. The Solicitor General further pointed out
the probability of flight in case petitioner is released on bail, it
having been established that petitioner was in possession of a valid
passport and visa and had in fact left the country several times
during the course of the proceedings in the lower court. It was also
shown that petitioner used different names in his business
transactions and had several abodes in different parts of the
country.
As for the conditions imposed by the bail bond, the Solicitor
General advanced that all that the Court of Appeals requires is
notice in case of change of address; it does not in any way impair
petitioners right to change abode for as long as the court is
apprised of his change of residence during the pendency of the
appeal.
Petitioners case falls within the provisions of Section 5, Rule
114 of the 1997 Rules of Court which states:
SEC. 5. Bail, when discretionary. --- Upon conviction by the
Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, the court, on
application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on
provisional liberty under the same bail bond during the period to
appeal subject to the consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6)
years, but not more than twenty (20) years, the accused shall be
denied bail, or his bail previously granted shall be cancelled, upon a
showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of
discretion in fixing the bail for the provisional liberty of
petitioner pending appeal in the amount of P5.5 million.
The respondent Court of Appeals committed grave abuse of
discretion in basing the bail for the provisional liberty of the
petitioner on his civil liability.

(a) That the accused is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his
bail without valid justification;

(c) That the accused committed the offense while on probation,

parole, or under conditional pardon;
(d) That the circumstances of the accused or his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that during the pendency of the
appeal, the accused may commit another crime.
The appellate court may review the resolution of the Regional
Trial Court, on motion and with notice to the adverse party.[7]
There is no question that in the present case the Court of
Appeals exercised its discretion in favor of allowing bail to
petitioner on appeal. Respondent court stated that it was doing so
for humanitarian reasons, and despite a perceived high risk of
flight, as by petitioners admission he went out of the country
several times during the pendency of the case, for which reason the
court deemed it necessary to peg the amount of bail at
P5,500,000.00.
The prohibition against requiring excessive bail is enshrined
in the Constitution.[8] The obvious rationale, as declared in the
leading case of De la Camara vs. Enage,[9] is that imposing bail in
an excessive amount could render meaningless the right to bail.
Thus, in Villaseor vs. Abao,[10] this Court made the
pronouncement that it will not hesitate to exercise its supervisory
powers over lower courts should the latter, after holding the
accused entitled to bail, effectively deny the same by imposing a
prohibitory sum or exacting unreasonable conditions.
xxx There is grim irony in an accused being told that he has a
right to bail but at the same time being required to post such
an exorbitant sum. What aggravates the situation is that the
lower court judge would apparently yield to the command of
the fundamental law. In reality, such a sanctimonious avowal
of respect for a mandate of the Constitution was on a purely
verbal level. There is reason to believe that any person in the
position of petitioner would under the circumstances be
unable to resist thoughts of escaping from confinement,
reduced as he must have been to a state of desperation. In the
same breath as he was told he could be bailed out, the
excessive amount required could only mean that provisional
liberty would be beyond his reach. It would have been more
forthright if he were informed categorically that such a right
could not be availed of. There would have been no
disappointment of expectations then. It does call to mind
these words of Justice Jackson, a promise to the ear to be
broken to the hope, a teasing illusion like a munificent
bequest in a paupers will. xxx[11]
At the same time, Section 9, Rule 114 of the Revised Rules of
Criminal Procedure advises courts to consider the following factors
in the setting of the amount of bail:
(a)

Financial ability of the accused to give bail;

(b)

Nature and circumstances of the offense;

(c)

Penalty for the offense charged;

(d)

Character and reputation of the accused;

(e)

Age and health of the accused;

(f)

Weight of the evidence against the accused;

(g)

Probability of the accused appearing at the trial;

(h)

Forfeiture of other bail;

(i)

The fact that the accused was a fugitive from justice

when arrested; and

(j)

Pendency of other cases where the accused is on

bail.

Thus, the court has wide latitude in fixing the amount of bail.
Where it fears that the accused may jump bail, it is certainly not
precluded from installing devices to ensure against the
same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically to
the court and to make an accounting of his movements.[12] In the
present case, where petitioner was found to have left the country
several times while the case was pending, the Court of Appeals
required the confiscation of his passport and the issuance of a holddeparture order against him.
Under the circumstances of this case, we find that appropriate
conditions have been imposed in the bail bond to ensure against the
risk of flight, particularly, the combination of the hold-departure
order and the requirement that petitioner inform the court of any
change of residence and of his whereabouts. Although an increase
in the amount of bail while the case is on appeal may be
meritorious, we find that the setting of the amount at
P5,500,000.00 is unreasonable, excessive, and constitutes an
effective denial of petitioners right to bail.
The purpose for bail is to guarantee the appearance of the
accused at the trial,[13] or whenever so required by the court[14] The
amount should be high enough to assure the presence of the
accused when required but no higher than is reasonably calculated
to fulfill this purpose.[15] To fix bail at an amount equivalent to the
civil liability of which petitioner is charged (in this case,
P5,500,000.00) is to permit the impression that the amount paid as
bail is an exaction of the civil liability that accused is charged of;
this we cannot allow because bail is not intended as a punishment,
nor as a satisfaction of civil liability which should necessarily await
the judgment of the appellate court.
At the same time, we cannot yield to petitioners submission
that bail in the instant case be set at P40,000.00 based on the 1996
Bail Bond Guide. (The current Bail Bond Guide, issued on August
29, 2000, maintains recommended bail at P40,000.00 for estafa
where the amount of fraud is P142,000.00 or over and the
imposable penalty 20 years of reclusion temporal). True, the Court
has held that the Bail Bond Guide, a circular of the Department of
Justice for the guidance of state prosecutors, although technically
not binding upon the courts, merits attention, being in a sense an
expression of policy of the Executive Branch, through the
Department of Justice, in the enforcement of criminal
laws.[16] Thus, courts are advised that they must not only be aware
but should also consider the Bail Bond Guide due to its significance
in the administration of criminal justice.[17] This notwithstanding,
the Court is not precluded from imposing in petitioners case an
amount higher than P40,000.00 (based on the Bail Bond Guide)
where it perceives that an appropriate increase is dictated by the
circumstances.
It militates emphasis that petitioner is seeking bail on
appeal. Section 5, Rule 114 of the Revised Rules of Criminal
Procedure is clear that although the grant of bail on appeal in noncapital offenses is discretionary, when the penalty imposed on the
convicted accused exceeds six years and circumstances exist that
point to the probability of flight if released on bail, then the accused
must be denied bail, or his bail previously granted should be
cancelled.[18] In the same vein, the Court has held that the
discretion to extend bail during the course of the appeal should be

exercised with grave caution and for strong reasons, considering

that the accused had been in fact convicted by the trial court. [19] In
an earlier case, the Court adopted Senator Vicente J. Franciscos
disquisition on why bail should be denied after judgment of
conviction as a matter of wise discretion; thus:
The importance attached to conviction is due to the underlying
principle that bail should be granted only where it is uncertain
whether the accused is guilty or innocent, and therefore, where that
uncertainty is removed by conviction it would, generally speaking,
be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon
in prior applications is rebutted, and the burden is upon the
accused to show error in the conviction. From another point of view
it may be properly argued that the probability of ultimate
punishment is so enhanced by the conviction that the accused is
much more likely to attempt to escape if liberated on bail than
before conviction. xxx [20]
Petitioner is seeking bail on appeal. He was in fact declared
guilty beyond reasonable doubt by the RTC, and due to the serious
amount of fraud involved, sentenced to imprisonment for twenty
years --- the maximum penalty for estafa by false pretenses or
fraudulent acts allowed by the Revised Penal Code. Although it
cannot be controverted that the Court of Appeals, despite the
foregoing considerations and the possibility of flight still wielded its
discretion to grant petitioner bail, the setting of bail in the amount
of P5,500,000.00 is unjustified as having no legal nor factual
basis. Guided by the penalty imposed by the lower court and the
weight of the evidence against petitioner, we believe that the
amount of P200,000.00 is more reasonable.
Petitioner also contests the condition imposed by the Court of
Appeals that he secure a certification/guaranty from the Mayor of
the place of his residence that he is a resident of the area and that
he will remain to be a resident therein until final judgment is
rendered or in case he transfers residence, it must be with prior
notice to the court, claiming that the same violates his liberty of
abode and travel.
Notably, petitioner does not question the hold-departure order
which prevents him from leaving the Philippines unless expressly
permitted by the court which issued the order.[21] In fact, the
petition submits that the hold-departure order against petitioner
is already sufficient guarantee that he will not escape. Thus, to
require him to inform the court every time he changed his residence
is already unnecessary.[22]
The right to change abode and travel within the Philippines,
being invoked by petitioner, are not absolute rights. Section 6,
Article III of the 1987 Constitution states:
The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public
safety, or public health, as may be provided by law.
The order of the Court of Appeals releasing petitioner on bail
constitutes such lawful order as contemplated by the above
provision.[23] The condition imposed by the Court of Appeals is
simply consistent with the nature and function of a bail bond,
which is to ensure that petitioner will make himself available at all
times whenever the Court requires his presence. Besides, a closer
look at the questioned condition will show that petitioner is not

prevented from changing abode; he is merely required to inform the

court in case he does so.
WHEREFORE,
the
petition
is
PARTIALLY
GRANTED. Petitioners bail pending appeal is reduced from
P5,500,000.00 to P200,000.00. In all other respects, the resolutions
of the Court of Appeals, dated October 6, 1999 and November 25,
1999, respectively, are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Melo,
(Chairman),
Gutierrez, JJ., concur.

Vitug,

Panganiban, and Sandoval-

[1] Branch

167, presided by Judge Alfredo C. Flores.

Decision; Rollo, 33-34.
[3] Comment of Solicitor General to Motion to Fix Bail; Rollo, 59.
[4] Fourteenth Division, composed of Associate Justice Ramon A. Barcelona
(Chairman and ponente), Associate Justice Demetrio G. Demetria, and
Associate Justice Mercedes Gozo-Dadole.
[5] CA Resolution dated October 6, 1999; Rollo, 18-19.
[6] Petition; Rollo, 8.
[7] See also Section 5, Rule 114 of the Revised Rules of Criminal Procedure,
effective December 1, 2000.
[8] At Section 13, Article III (Bill of Rights), the 1987 Constitution declares:
All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall
not be required. (Emphasis supplied)
[9] 41 SCRA 1 (1971).
[10] 21 SCRA 312 (1967). See also Chu vs. Dolalas, 260 SCRA 309 (1996).
[11] Dela Camara vs. Enage, supra, at 9, 10.
[12] Almeda vs. Villaluz, 66 SCRA 38 (1975).
[13] Almeda vs. Villaluz, supra.
[14] Sec. 2, Rule 114, Revised Rules of Criminal Procedure.
[15] Villaseor vs. Abao, 21 SCRA 312 (1967).
[16] People vs. Resterio-Andrade, 175 SCRA 782 (1989).
[17] Chu vs. Dolalas, supra.
[18] Maguddatu vs. Court of Appeals, 326 SCRA 362 (2000); Obosa vs. Court
of Appeals, 266 SCRA 281 (1997), citing People vs. Caderao and Associated
Insurance & Surety Co., Inc., 117 Phil. 650 (1963).
[19] Obosa vs. Court of Appeals, supra.
[20] Id., citing FRANCISCO, THE REVISED RULES OF COURT IN THE
PHILIPPINES --- CRIMINAL PROCEDURE (1963), at 322.
[21] See Defensor-Santiago vs. Vasquez, 217 SCRA 633 (1993), where the
Court held that the ex parte issuance of a hold-departure order was a valid
exercise of the presiding courts inherent power to preserve and to maintain
the effectiveness of its jurisdiction over the case and the person of the
accused. See also Silverio vs. Court of Appeals, 195 SCRA 760 (1991), where
the Court upheld the hold-departure order as a valid restriction on the
accuseds right to travel, as to keep him within the reach of the courts.
[22] Petition; Rollo, 11
[23] Manotoc vs. Court of Appeals, 142 SCRA 149 (1986).
[2] RTC

INFORMATION AND ACCESS TO OFFICIAL

RECORDS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of
public concern is invoked in this special civil action for mandamus
instituted by petitioner Valentin L. Legaspi against the Civil
Service Commission. The respondent had earlier denied Legaspi's
request for information on the civil service eligibilities of certain
persons employed as sanitarians in the Health Department of Cebu
City. These government employees, Julian Sibonghanoy and
Mariano Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian
Sibonghanoy and Mariano Agas, is guaranteed by the Constitution,
and that he has no other plain, speedy and adequate remedy to
acquire the information, petitioner prays for the issuance of the
extraordinary writ of mandamus to compel the respondent
Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to
enforce the fundamental right to information. The same remedy
was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R.
No. L-63915, April 24,1985,136 SCRA 27) wherein the people's
right to be informed under the 1973 Constitution (Article IV,
Section 6) was invoked in order to compel the publication in the
Official Gazette of various presidential decrees, letters of
instructions and other presidential issuances. Prior to the
recognition of the right in said Constitution the statutory right to
information provided for in the Land Registration Act (Section 56,
Act 496, as amended) was claimed by a newspaper editor in another
mandamus proceeding, this time to demand access to the records of
the Register of Deeds for the purpose of gathering data on real
estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383
[1948]).
The constitutional right to information on matters of public concern
first gained recognition in the Bill of Rights, Article IV, of the 1973
Constitution, which states:
Sec. 6. The right of the people to information on
matters of public concern shall be recognized.
Access to official records, and to documents and
papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to
such limitations as may be provided by law.
The foregoing provision has been retained and the right therein
provided amplified in Article III, Sec. 7 of the 1987 Constitution
with the addition of the phrase, "as well as to government research
data used as basis for policy development." The new provision
reads:
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis. for policy development, shall be

afforded the citizen, subject to such stations as

may be provided by law.
These constitutional provisions are self-executing. They supply the
rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of
the constitution without need for any ancillary act of the
Legislature. (Id. at, p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with
the declared State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. 11, Sec. 28). However,
it cannot be overemphasized that whatever limitation may be
prescribed by the Legislature, the right and the duty under Art. III
Sec. 7 have become operative and enforceable by virtue of the
adoption of the New Charter. Therefore, the right may be properly
invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving
due course to this Petition. He challenges the petitioner's standing
to sue upon the ground that the latter does not possess any clear
legal right to be informed of the civil service eligibilities of the
government employees concerned. He calls attention to the alleged
failure of the petitioner to show his actual interest in securing this
particular information. He further argues that there is no
ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes
said party from the enjoyment of a legal right. (Ant;-Chinese
League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The
petitioner in every case must therefore be an "aggrieved party" in
the sense that he possesses a clear legal right to be enforced and a
direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality
of the petitioner to bring this suit. It is asserted that, the instant
Petition is bereft of any allegation of Legaspi's actual interest in the
civil service eligibilities of Julian Sibonghanoy and Mariano Agas,
At most there is a vague reference to an unnamed client in whose
behalf he had allegedly acted when he made inquiries on the
subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner
has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature,
is a public right. It has been held that:
* * * when the question is one of public right and
the object of the mandamus is to procure the
enforcement of a public duty, the people are
regarded as the real party in interest and the
relator at whose instigation the proceedings are
instituted need not show that he has any legal or
special interest in the result, it being sufficient to
show that he is a citizen and as such interested in
the execution of the laws * * * (Tanada et. al. vs.
Tuvera, et. al., G.R. No. L- 63915, April 24, 1985,
136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus

proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that the petitioner
is a citizen, and therefore, part of the general "public" which
possesses the right.
The Court had opportunity to define the word "public" in
the Subido case, supra, when it held that even those who have no
direct or tangible interest in any real estate transaction are part of
the "public" to whom "(a)ll records relating to registered lands in
the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act
No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive
term. Properly construed, it embraces every
person. To say that only those who have a present
and existing interest of a pecuniary character in
the particular information sought are given the
right of inspection is to make an unwarranted
distinction. *** (Subido vs. Ozaeta, supra at p.
387).
The petitioner, being a citizen who, as such is clothed with
personality to seek redress for the alleged obstruction of the
exercise of the public right. We find no cogent reason to deny his
standing to bring the present suit.
2. For every right of the people recognized as fundamental, there
lies a corresponding duty on the part of those who govern, to
respect and protect that right. That is the very essence of the Bill of
Rights in a constitutional regime. Only governments operating
under fundamental rules defining the limits of their power so as to
shield individual rights against its arbitrary exercise can properly
claim to be constitutional (Cooley, supra, at p. 5). Without a
government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights
pertaining to the citizens, the Bill of Rights becomes a sophistry,
and liberty, the ultimate illusion.
In recognizing the people's right to be informed, both the 1973
Constitution and the New Charter expressly mandate the duty of
the State and its agents to afford access to official records,
documents, papers and in addition, government research data used
as basis for policy development, subject to such limitations as may
be provided by law. The guarantee has been further enhanced in
the New Constitution with the adoption of a policy of full public
disclosure, this time "subject to reasonable conditions prescribed by
law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of
full public disclosure of all its transactions
involving public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was
bolstered by what this Court declared as an imperative duty of the
government officials concerned to publish all important legislative
acts and resolutions of a public nature as well as all executive
orders and proclamations of general applicability. We granted
mandamus in said case, and in the process, We found occasion to
expound briefly on the nature of said duty:

* * * That duty must be enforced if the

Constitutional right of the people to be informed
on matters of public concern is to be given
substance and reality. The law itself makes a list
of what should be published in the Official
Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to
what must be in included or excluded from such
publication. (Tanada v. Tuvera,supra, at 39).
(Emphasis supplied).
The absence of discretion on the part of government agencia es in
allowing the examination of public records, specifically, the records
in the Office of the Register of Deeds, is emphasized in Subido vs.
Ozaeta, supra:
Except, perhaps when it is clear that the purpose
of the examination is unlawful, or sheer, idle
curiosity, we do not believe it is the duty under
the law of registration officers to concern
themselves with the motives, reasons, and objects
of the person seeking access to the records. It is
not their prerogative to see that the information
which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it
be wrong to publish the contents of the records, it is
the legislature and not the officials having custody
thereof which is called upon to devise a
remedy. *** (Subido v. Ozaeta, supra at 388).
(Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that
government agencies are without discretion in refusing disclosure
of, or access to, information of public concern. This is not to lose
sight of the reasonable regulations which may be imposed by said
agencies in custody of public records on the manner in which the
right to information may be exercised by the public. In
the Subido case, We recognized the authority of the Register of
Deeds to regulate the manner in which persons desiring to do so,
may inspect, examine or copy records relating to registered lands.
However, the regulations which the Register of Deeds may
promulgate are confined to:
* * * prescribing the manner and hours of
examination to the end that damage to or loss of,
the records may be avoided, that undue
interference with the duties of the custodian of the
books and documents and other employees may be
prevented, that the right of other persons entitled
to make inspection may be insured * * * (Subido
vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar
authority in a municipal judge, to regulate the manner of inspection
by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14).
Said administrative case was filed against the respondent judge for
his alleged refusal to allow examination of the criminal docket
records in his sala. Upon a finding by the Investigating Judge that
the respondent had allowed the complainant to open and view the
subject records, We absolved the respondent. In effect, We have also
held that the rules and conditions imposed by him upon
the manner of examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in

Our statement that the authority to regulate the manner of
examining public records does not carry with it the power to
prohibit. A distinction has to be made between the discretion to
refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which the
access is to be afforded. The first is a limitation upon the
availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The
second pertains to the government agency charged with the custody
of public records. Its authority to regulate access is to be exercised
solely to the end that damage to, or loss of, public records may be
avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs.
Ozaetal supra).
Thus, while the manner of examining public records may be subject
to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and
to afford access to public records cannot be discretionary on the
part of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional
duty, not being discretionary, its performance may be compelled by
a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant duty
of the State are unequivocably set forth in the Constitution. The
decisive question on the propriety of the issuance of the writ of
mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of
the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In
the same way that free discussion enables members of society to
cope with the exigencies of their time (Thornhill vs. Alabama, 310
U.S. 88,102 [1939]), access to information of general interest aids
the people in democratic decision-making (87 Harvard Law Review
1505 [1974]) by giving them a better perspective of the vital issues
confronting the nation.
But the constitutional guarantee to information on matters of
public concern is not absolute. It does not open every door to any
and all information. Under the Constitution, access to official
records, papers, etc., are "subject to limitations as may be provided
by law" (Art. III, Sec. 7, second sentence). The law may therefore
exempt certain types of information from public scrutiny, such as
those affecting national security (Journal No. 90, September 23,
1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a)
being of public concern or one that involves public interest, and, (b)
not being exempted by law from the operation of the constitutional
guarantee. The threshold question is, therefore, whether or not the
information sought is of public interest or public concern.
a. This question is first addressed to the government agency having
custody of the desired information. However, as already discussed,
this does not give the agency concerned any discretion to grant or

deny access. In case of denial of access, the government agency has

the burden of showing that the information requested is not of
public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee. To hold
otherwise will serve to dilute the constitutional right. As aptly
observed, ". . . the government is in an advantageous position to
marshall and interpret arguments against release . . ." (87 Harvard
Law Review 1511 [1974]). To safeguard the constitutional right,
every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access may
be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to
determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera,
supra, was the need for adequate notice to the public of the various
laws which are to regulate the actions and conduct of citizens.
In Subido vs. Ozaeta, supra,the public concern deemed covered by
the statutory right was the knowledge of those real estate
transactions which some believed to have been registered in
violation of the Constitution.
The information sought by the petitioner in this case is the truth of
the claim of certain government employees that they are civil
service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made
only according to merit and fitness to be
determined, as far as practicable, and except as to
positions which are policy determining, primarily
confidential or highly technical, by competitive
examination. (Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the
legitimate concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who
are eligibles. Public officers are at all times accountable to the
people even as to their eligibilities for their respective positions.
b. But then, it is not enough that the information sought is of public
interest. For mandamus to lie in a given case, the information must
not be among the species exempted by law from the operation of the
constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of
eligibility, the respondent has failed to cite any provision in the
Civil Service Law which would limit the petitioner's right to know
who are, and who are not, civil service eligibles. We take judicial
notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations
for various professions, are released to the public. Hence, there is
nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor
unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any

citizen, has a right to verify their professed eligibilities from the

Civil Service Commission.

(c) to allow petitioners access to the public records for the

subject information. (Petition, pp. 4-5; paragraphing supplied.]

The civil service eligibility of a sanitarian being of public concern,

and in the absence of express limitations under the law upon access
to the register of civil service eligibles for said position, the duty of
the respondent Commission to confirm or deny the civil service
eligibility of any person occupying the position becomes imperative.
Mandamus, therefore lies.

The controversy arose when petitioner Valmonte wrote respondent

Belmonte the following letter:
June 4, 1986
Hon.
Feliciano
GSIS
General
Arroceros, Manila

WHEREFORE, the Civil Service Commission is ordered to open its

register of eligibles for the position of sanitarian, and to confirm or
deny, the civil service eligibility of Julian Sibonghanoy and
Mariano Agas, for said position in the Health Department of Cebu
City, as requested by the petitioner Valentin L. Legaspi.

Sir:
As a lawyer, member of the media and plain
citizen of our Republic, I am requesting that I be
furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were
able to secure a clean loan of P2 million each on
guarranty (sic) of Mrs. Imelda Marcos. We
understand that OIC Mel Lopez of Manila was one
of those aforesaid MPs. Likewise, may we be
furnished with the certified true copies of the
documents evidencing their loan. Expenses in
connection herewith shall be borne by us.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,

Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and
Sarmiento, JJ., concur.
Feliciano, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

If we could not secure the above documents could

we have access to them?

EN BANC

We are premising the above request on the

following provision of the Freedom Constitution of
the present regime.

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL
CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN
GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY"
ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO
FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

The right of the people to

information on matters of public
concern shall be recognized.
Access to official records, and to
documents
and
papers
pertaining to official acts,
transactions or decisions, shall
be afforded the citizen subject to
such limitation as may be
provided by law. (Art. IV, Sec. 6).

Ricardo C. Valmonte for and in his own behalf and his copetitioners.

We trust that within five (5) days from receipt

hereof we will receive your favorable response on
the matter.

The Solicitor General for respondent.

CORTES, J.:
Petitioners in this special civil action for mandamus with
preliminary injunction invoke their right to information and pray
that respondent be directed:
(a) to furnish petitioners the list of the names of the
Batasang Pambansa members belonging to the UNIDO and PDPLaban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then
First Lady Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the
documents evidencing their respective loans; and/or

Belmonte
Manager

[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS
replied:
June 17, 1986
Atty.
Ricardo
108
E.
Caloocan City
Dear Compaero:

C.
Benin

Valmonte
Street

Possibly because he must have thought that it

contained serious legal implications, President &
General Manager Feliciano Belmonte, Jr. referred
to me for study and reply your letter to him of
June 4, 1986 requesting a list of the opposition
members of Batasang Pambansa who were able to
secure a clean loan of P2 million each on guaranty
of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential
relationship exists between the GSIS and all those
who borrow from it, whoever they may be; that the
GSIS has a duty to its customers to preserve this
confidentiality; and that it would not be proper for
the GSIS to breach this confidentiality unless so
ordered by the courts.
As a violation of this confidentiality may mar the
image of the GSIS as a reputable financial
institution, I regret very much that at this time
we cannot respond positively to your request.
Very truly yours,
(Sgd.)
MEYNARDO
Deputy
General
[Rollo, p. 40.]

A.

TIRO
Counsel

On June 20, 1986, apparently not having yet received the reply of
the Government Service and Insurance System (GSIS) Deputy
General Counsel, petitioner Valmonte wrote respondent another
letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within
the premises to pursue our desired objective in pursuance of public
interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed
the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting
that 137 former members of the defunct interim and regular
Batasang Pambansa, including ten (10) opposition members, were
granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the
Solicitor General. After petitioners filed a consolidated reply, the
petition was given due course and the parties were required to file
their memoranda. The parties having complied, the case was
deemed submitted for decision.
In his comment respondent raises procedural objections to the
issuance of a writ of mandamus, among which is that petitioners
have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are
reviewable by the Board of Trustees of the GSIS. Petitioners,
however, did not seek relief from the GSIS Board of Trustees. It is
therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely
legal issue, viz., whether or not they are entitled to the documents
sought, by virtue of their constitutional right to information. Hence,

it is argued that this case falls under one of the exceptions to the
principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a
party can be allowed to resort to the courts, he is expected to have
exhausted all means of administrative redress available under the
law. The courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have
been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of
administrative remedies is subject to settled exceptions, among
which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v.
Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The
issue raised by petitioners, which requires the interpretation of the
scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS
or its Board of Trustees, involving as it does a purely legal question.
Thus, the exception of this case from the application of the general
rule on exhaustion of administrative remedies is warranted.
Having disposed of this procedural issue, We now address ourselves
to the issue of whether or not mandamus hes to compel respondent
to perform the acts sought by petitioners to be done, in pursuance of
their right to information.
We shall deal first with the second and third alternative acts
sought to be done, both of which involve the issue of whether or not
petitioners are entitled to access to the documents evidencing loans
granted by the GSIS.
This is not the first time that the Court is confronted with a
controversy directly involving the constitutional right to
information. In Taada v. Tuvera, G.R. No. 63915, April 24,1985,
136 SCRA 27 and in the recent case of Legaspi v. Civil Service
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the
Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111,
Sec. 7 which states:
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations as
may be provided by law.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters
of public concern shall be recognized. Access to
official records, and to documents and papers
pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to
such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in

political, moral and artistic thought and data relative to them, and
the free exchange of ideas and discussion of issues thereon, is vital
to the democratic government envisioned under our Constitution.
The cornerstone of this republican system of government is
delegation of power by the people to the State. In this system,
governmental agencies and institutions operate within the limits of
the authority conferred by the people. Denied access to information
on the inner workings of government, the citizenry can become prey
to the whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust,
institutionalized in the Constitution (in Art. XI, Sec. 1) to protect
the people from abuse of governmental power, would certainly be
were empty words if access to such information of public concern is
denied, except under limitations prescribed by implementing
legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the
right to gather and the obligation to check the accuracy of
information the disseminate. For them, the freedom of the press
and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these
freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of
these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the
interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be
responsive to the people's will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the participants
in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful
right to speech and expression. But this is not to say that the right
to information is merely an adjunct of and therefore restricted in
application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with
the constitutional policies of full public disclosure * and honesty in
the public service. ** It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information
is not absolute. As stated in Legaspi, the people's right to
information is limited to "matters of public concern," and is further
"subject to such limitations as may be provided by law." Similarly,
the State's policy of full disclosure is limited to "transactions
involving public interest," and is "subject to reasonable conditions
prescribed by law."
Hence, before mandamus may issue, it must be clear that the
information sought is of "public interest" or "public concern," and is
not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms
"public interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular
information is of public concern there is no rigid
test which can be applied. "Public concern" like
"public interest" is a term that eludes exact
definition. Both terms embrace a broad spectrum

of subjects which the public may want to know,

either because these directly affect their lives, or
simply because such matters naturally arouse the
interest of an ordinary citezen. In the final
analysis, it is for the courts to determine on a case
by case basis whether the matter at issue is of
interest or importance, as it relates to or affects
the public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the
constitutional right to information was the need for adequate notice
to the public of the various laws which are to regulate the actions
and conduct of citezens. InLegaspi, it was the "legitimate concern of
citezensof ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles" [Supra at
p. 539.]
The information sought by petitioners in this case is the truth of
reports that certain Members of the Batasang Pambansa belonging
to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the
intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programs for
the benefit of the latter. Undeniably, its funds assume a public
character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977),
provide for annual appropriations to pay the contributions,
premiums, interest and other amounts payable to GSIS by the
government, as employer, as well as the obligations which the
Republic of the Philippines assumes or guarantees to pay.
Considering the nature of its funds, the GSIS is expected to manage
its resources with utmost prudence and in strict compliance with
the pertinent laws or rules and regulations. Thus, one of the
reasons that prompted the revision of the old GSIS law (C.A. No.
186, as amended) was the necessity "to preserve at all times the
actuarial solvency of the funds administered by the System"
[Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant
'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern
of the public to ensure that these funds are managed properly with
the end in view of maximizing the benefits that accrue to the
insured government employees. Moreover, the supposed borrowers
were Members of the defunct Batasang Pambansa who themselves
appropriated funds for the GSIS and were therefore expected to be
the first to see to it that the GSIS performed its tasks with the
greatest degree of fidelity and that an its transactions were above
board.
In sum, the public nature of the loanable funds of the GSIS and the
public office held by the alleged borrowers make the information
sought clearly a matter of public interest and concern.
A second requisite must be met before the right to information may
be enforced through mandamus proceedings,viz., that the
information sought must not be among those excluded by law.
Respondent maintains that a confidential relationship exists
between the GSIS and its borrowers. It is argued that a policy of
confidentiality restricts the indiscriminate dissemination of
information.

Yet, respondent has failed to cite any law granting the GSIS the
privilege of confidentiality as regards the documents subject of this
petition. His position is apparently based merely on considerations
of policy. The judiciary does not settle policy issues. The Court can
only declare what the law is, and not what the law should be.
Under our system of government, policy issues are within the
domain of the political branches of the government, and of the
people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy
which is equally protected by the Constitution and by existing laws,
the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally
protected. In the landmark case of Morfe v. Mutuc[130 Phil. 415
(1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:
... The right to privacy as such is accorded
recognition independently of its identification with
liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of
limited government has always included the idea
that governmental powers stop short of certain
intrusions into the personal life of the citizen. This
is indeed one of the basic distinctions between
absolute and limited government. UItimate and
pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute. state, In
contrast, a system of limited government
safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public
sector, which the state can control. Protection of
this private sector protection, in other words, of
the dignity and integrity of the individual has
become increasingly important as modem society
has developed. All the forces of technological age

industrialization,
urbanization,
and
organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference
between a democratic and a totalitarian society."
[at pp. 444-445.]

N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be
invoked only by the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the
concerned borrowers themselves may not succeed if they choose to
invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been
granted. It cannot be denied that because of the interest they
generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their
actions being subject to closer public scrutiny [Cf.Ayer Productions
Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29,
1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not
covered by the Constitutional right to information on matters of
public concern which guarantees "(a)ccess to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the
people's right of access to official records.
It is further contended that since the loan function of the GSIS is
merely incidental to its insurance function, then its loan
transactions are not covered by the constitutional policy of full
public disclosure and the right to information which is applicable
only to "official" transactions.
First of all, the "constituent ministrant" dichotomy
characterizing government function has long been repudiated.
In ACCFA v. Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484 and L-23605,
November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or
running some business, discharges the same function of service to
the people.
Consequently, that the GSIS, in granting the loans, was exercising
a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to
information.

When the information requested from the government intrudes into

the privacy of a citizen, a potential conflict between the rights to
information and to privacy may arise. However, the competing
interests of these rights need not be resolved in this case. Apparent
from the above-quoted statement of the Court in Morfe is that the
right to privacy belongs to the individual in his private capacity,
and not to public and governmental agencies like the GSIS.
Moreover, the right cannot be invoked by juridical entities like the
GSIS. As held in the case of Vassar College v. Loose Wills Biscuit
Co. [197 F. 982 (1912)], a corporation has no right of privacy in its
name since the entire basis of the right to privacy is an injury to
the feelings and sensibilities of the party and a corporation would
have no such ground for relief.

Moreover, the intent of the members of the Constitutional

Commission of 1986, to include government-owned and controlled
corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from
the records of the proceedings:

Neither can the GSIS through its General Manager, the

respondent, invoke the right to privacy of its borrowers. The right is
purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121
Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147

MR. SUAREZ. Thank you. May I ask the

Gentleman a few question?

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).
Commissioner
recognized.

MR. OPLE. Very gladly.

Suarez

is

MR. SUAREZ. Thank you.

When we declare a "policy of full
public disclosure of all its
transactions" referring to the
transactions of the State and
when we say the "State" which I
suppose would include all of the
various agencies, departments,
ministries and instrumentalities
of the government....
MR. OPLE. Yes, and individual public officers,
Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and
controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR.
SUAREZ.
And
when
we
say
"transactions" which should be distinguished
from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the
steps leading to the consummation of the
contract, or does he refer to the contract
itself?
MR. OPLE. The "transactions" used here I
suppose is generic and, therefore, it can cover
both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of
negotiations leading to the consummation of
the transaction.

the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured
[Legaspi v. Civil Service Commission, supra at p. 538, quoting
Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second
and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e., "to furnish petitioners the list of the
names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of
official records to prepare lists, abstracts, summaries and the like
in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of
the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare
the list requested.
WHEREFORE, the instant petition is hereby granted and
respondent General Manager of the Government Service Insurance
System is ORDERED to allow petitioners access to documents and
records evidencing loans granted to Members of the former
Batasang Pambansa, as petitioners may specify, subject to
reasonable regulations as to the time and manner of inspection, not
incompatible with this decision, as the GSIS may deem necessary.

MR. OPLE. Yes, subject only to reasonable

safeguards on the national interest.

SO ORDERED.

MR. SUAREZ. Thank you. [V Record of the

Constitutional Commission 24-25.] (Emphasis
supplied.)

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,

Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino,
Medialdea and Regalado, JJ., concur.

Considering the intent of the framers of the

Constitution which, though not binding upon
the Court, are nevertheless persuasive, and
considering further that government-owned
and
controlled
corporations,
whether
performing proprietary or governmental
functions are accountable to the people, the
Court is convinced that transactions entered
into by the GSIS, a government-controlled
corporation created by special legislation are
within the ambit of the people's right to be
informed pursuant to the constitutional policy
of transparency in government dealings.

Separate Opinions

In fine, petitioners are entitled to access to the documents

evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the
records may be avoided, that undue interference with the duties of

CRUZ, J., concurring:

Instead of merely affixing my signature to signify my concurrence, I
write this separate opinion simply to say I have nothing to add to
Justice Irene R. Cortes' exceptionally eloquent celebration of the
right to information on matters of public concern.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I
write this separate opinion simply to say I have nothing to add to
Justice Irene R. Cortes' exceptionally eloquent celebration of the
right to information on matters of public concern.

Footnotes

BIDIN, J.:p
* Art. II, Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.
** Art XI, Sec. 1. Public office is a public trust.
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with partriotism and justice, and lead modest
lives.
The following provisions of the 1987 Constitution
are further indicative of the policy of
transparency:
Art. VII, Sec. 12. In case of serious illness of the
President, the public shall be informed of the state
of his health. The members of the cabinet in
charge of national security and foreign relations
and the Chief of Staff of the Armed Forces of the
Philippines shall not be denied access to the
President during such illness.
Art. XI, Sec. 17. A public officer or employee shall,
upon assumption of office and as often thereafter
as may be required by law, submit a declaration
under oath or his assets liabilities, and net worth.
In the case of the President, the Vice-President,
the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commissions
and other constitutional offices, and officers of the
armed forces with general or flag rank, the
declaration shall be disclosed to the public in the
manner provided by law.
Art. XII, Sec. 21. Foreign loans may only be
incurred in accordance with law and the
regulation of the monetary authority. Information
on foreign loans obtained or guaranteed by the
Government shall be made available to the public.

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. 92541 November 13, 1991
MA. CARMEN G. AQUINO-SARMIENTO, petitioner,
vs.
MANUEL L. MORATO (in his capacity as Chairman of the
MTRCB) and the MOVIE & TELEVISION REVIEW AND
CLASSIFICATION BOARD, respondents.
Araullo, Zambrano, Gruba, Chua Law Firm for petitioner.
Francisco Ma. Chanco for respondents.

At issue in this petition is the citizen's right of access to official

records as guaranteed by the constitution.
In February 1989, petitioner, herself a member of respondent Movie
and Television Review and Classification Board (MTRCB), wrote its
records officer requesting that she be allowed to examine the
board's records pertaining to the voting slips accomplished by the
individual board members after a review of the movies and
television productions. It is on the basis of said slips that films are
either banned, cut or classified accordingly.
Acting on the said request, the records officer informed petitioner
that she has to secure prior clearance from respondent Manuel
Morato, as chairman of MTRCB, to gain access to the records
sought to be examined.
Petitioner's request was eventually denied by respondent Morato on
the ground that whenever the members of the board sit in
judgment over a film, their decisions as reflected in the individual
voting slips partake the nature of conscience votes and as such, are
purely and completely private and personal. It is the submission of
respondents that the individual voting slips is the exclusive
property of the member concerned and anybody who wants access
thereto must first secure his (the member's) consent, otherwise, a
request therefor may be legally denied.
Petitioner argues, on the other hand, that the records she wishes to
examine are public in character and other than providing for
reasonable conditions regulating the manner and hours of
examination, respondents Morato and the classification board have
no authority to deny any citizen seeking examination of the board's
records.
On February 27, 1989, respondent Morato called an executive
meeting of the MTRCB to discuss, among others, the issue raised
by petitioner. In said meeting, seventeen (17) members of the board
voted to declare their individual voting records as classified
documents which rendered the same inaccessible to the public
without clearance from the chairman. Thereafter, respondent
Morato denied petitioner's request to examine the voting slips.
However, it was only much later, i.e., on July 27, 1989, that
respondent Board issued Resolution No. 10-89 which declared as
confidential, private and personal, the decision of the reviewing
committee and the voting slips of the members.
Petitioner brought the matter to the attention of the Executive
Secretary, which in turn, referred the same to respondent Morato
for appropriate comment.
Another incident which gave rise to this petition occurred in a
board meeting held on June 22, 1989. In that meeting, respondent
Morato told the board that he has ordered some deletions on the
movie "Mahirap ang Magmahal" notwithstanding the fact that said
movie was earlier approved for screening by the Board with
classification "R-18 without cuts". He explained that his power to
unilaterally change the decision of the Review Committee is
authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June
22,1988) which allows the chairman of the board "to downgrade a
film (already) reviewed especially those which are controversial."
Petitioner informed the Board, however, that respondent Morato
possesses no authority to unilaterally reverse a decision of the

review committee under PD 1986 (Creating the Movie and

Television Review and Classification Board).
After the matter was referred by the Deputy Executive Secretary to
the Justice Secretary, the latter opined that PD 1896 does not vest
respondent Morato any authority to unilaterally reverse the
decision of the review committee but declined to comment on the
constitutionality of Res. No. 10-89 on the ground that the resolution
thereof is a judicial prerogative (Rollo, pp. 38-42).
The Justice Secretary's opinion to the contrary notwithstanding,
respondent Morato opted to ignore it.
Hence, this petition anchored on the following:
A. MORATO AND THE MTRCB BY APPROVING AND
ENFORCING RESOLUTION NO. 10-89 ACTED WITH GRAVE
ABUSE OF DISCRETION TANTAMOUNT TO LACK OF
JURISDICTION BECAUSE THE SAME VIOLATES ARTICLE III
SECTION 7 OF THE 1987 CONSTITUTION.
B. MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS
AND CONSTITUTES AN UNLAWFUL DELEGATION OF
DISCRETIONARY POWERS.
C. MORATO AND THE MTRCB BY REFUSING TO ABIDE BY
OPINION NO. 1 SERIES OF 1990 OF THE SECRETARY OF
JUSTICE AND BY INSISTING ON THE VALIDITY OF
RESOLUTION
NO.
88-1-25
ACTED
CAPRICIOUSLY,
ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR
JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION.
Petitioner therefore seeks the nullification of 1) MTRCB Resolution
No. 88-1-25 which allows the Chairman of the Board to unilaterally
downgrade a film (already) reviewed especially those which are
controversial and 2) MTRCB RESOLUTION No. 10-89 (dated July
27, 1989) declaring as strictly confidential, private and personal a)
the decision of a reviewing committee which previously reviewed a
certain film and b) the individual voting slips of the members of the
committee that reviewed the film.
Respondents argue at the outset that the instant petition should be
dismissed outright for having failed to comply with the doctrine of
exhaustion of administrative remedies.
We disagree. The doctrine of exhaustion of administrate remedies
simply provides that before a party litigant is allowed resort to the
courts, he is required to comply with all administrative remedies
available under the law (Rosales v. Court of Appeals, 165 SCRA 344
[1988]). The rationale behind this salutory principle is that for
reasons of practical considerations, comity and convenience, the
courts of law will not entertain a case until all the available
administrative remedies provided by law have been resorted to and
the appropriate authorities have been given ample opportunity to
act and to correct the errors committed in the administrative level.
If the error is rectified, judicial intervention would then be
unnecessary.
Nonetheless, the doctrine of exhaustion of administrative remedies
is not absolute. The applicability of the principle admits of certain
exceptions, such as: 1) when no administrative review is provided
by law; 2) when the only question involved is one of law (Valmonte
v. Valmonte, 170 SCRA 256 [1989], citing Aguilar v. Valencia, 40
SCRA 210 [1971]; Malabanan v. Ramento, 129 SCRA 359 [1984];

Bagatsing v. Ramirez, 74 SCRA 306; Del Mar v. Philippine

Veterans Administration, 51 SCRA 340 [1973]; Pascual v.
Provincial Board, 106 Phil. 466 [1959]; 3) where the party invoking
the doctrine is guilty of estoppel (Vda. de Tan v. Veterans' Backpay
Commission [1969]; 4) where the challenged administrative action
is patently illegal, arbitrary and oppressive (Azur v. Provincial
Board, 27 SCRA 50 [1969]; National Development Co. v. Collector
of Customs of Manila, 9 SCRA 429 [1963]; 5) where there is
unreasonable delay or official inaction that would greatly prejudice
the complainant (Gravador v. Mamigo, 20 SCRA 742 [1967]; Azuelo
v. Arnaldo, 108 Phil. 293 [1960]; 6) where to exhaust administrative
review is impractical and unreasonable (Cipriano v. Marcelino, 43
SCRA 291); and 7) where the rule of qualified political agency
applies (Demaisip v. Court of Appeals, 106 Phil. 237 [1906]).
The issue raised in the instant petition is one of law, hence the
doctrine of non-exhaustion of administrative remedy relied upon by
respondents is inapplicable and cannot be given any effect. At any
rate, records are replete with events pointing to the fact that
petitioner adhered to the administrative processes in the
disposition of the assailed resolutions of public respondents prior to
filing the instant petition by, among others, writing the Executive
Secretary and bringing the matter to the attention of the Office of
the President (Rollo, pp. 145-147). Respondents' claim that
petitioner failed to exhaust administrative remedies must therefore
fail.
Having disposed of the procedural objection raised by respondents,
We now proceed to resolve the issues raised by petitioner. In this
regard, We find respondents' refusal to allow petitioner to examine
the records of respondent MTRCB, pertaining to the decisions of
the review committee as well as the individual voting slips of its
members, as violative of petitioner's constitutional right of access to
public records. More specifically, Sec. 7, Art. III of the Constitution
provides that:
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or
decisions,as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations as
may be provided by law. (emphasis supplied)
As We held in Legaspi v. Civil Service Commission (150 SCRA 530
[1987]), this constitutional provision is self-executory and supplies
"the rules by means of which the right to information may be
enjoyed (Cooley, A Treatise on Constitutional Limitations 167
[1927]) by guaranteeing the right and mandating the duty to afford
access to sources of information. Hence, the fundamental right
therein recognized may be asserted by the people upon the
ratification of the constitution without need for any ancillary act of
the Legislature (Id. at 165). What may be provided for by the
Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with
the declared State Policy of full public disclosure of all transactions
involving public interest (Constitution, Art. II, Sec. 28)." (See also
Taada v. Tuvera, 136 SCRA 27 [1985]; Valmonte v. Belmonte, Jr.,
170 SCRA 256 [1989]).
Respondents contend, however, that what is
members of the board in reviewing films and
individual voting slip is their individual vote of
motion picture or television program and as

rendered by the
reflected in their
conscience on the
such, makes the

individual voting slip purely private and personal; an exclusive

property of the member concerned.
The term private has been defined as "belonging to or concerning,
an individual person, company, or interest"; whereas, public means
"pertaining to, or belonging to, or affecting a nation, state, or
community at large" (People v. Powell, 274 NW 372 [1937]). May
the decisions of respondent Board and the individual members
concerned, arrived at in an official capacity, be considered private?
Certainly not. As may be gleaned from the decree (PD 1986)
creating the respondent classification board, there is no doubt that
its very existence is public is character; it is an office created to
serve public interest. It being the case, respondents can lay no valid
claim to privacy. The right to privacy belongs to the individual
acting in his private capacity and not to a governmental agency or
officers tasked with, and acting in, the discharge of public duties
(See Valmonte v. Belmonte, Jr., supra.) There can be no invasion of
privacy in the case at bar since what is sought to be divulged is a
product of action undertaken in the course of performing official
functions. To declare otherwise would be to clothe every public
official with an impregnable mantle of protection against public
scrutiny for their official acts.
Further, the decisions of the Board and the individual voting slips
accomplished by the members concerned are acts made pursuant to
their official functions, and as such, are neither personal nor
private in nature but rather public in character. They are,
therefore, public records access to which is guaranteed to the
citizenry by no less than the fundamental law of the land. Being a
public right, the exercise thereof cannot be made contingent on the
discretion, nay, whim and caprice, of the agency charged with the
custody of the official records sought to be examined. The
constitutional recognition of the citizen's right of access to official
records cannot be made dependent upon the consent of the
members of the board concerned, otherwise, the said right would be
rendered nugatory. As stated by this Court in Subido v. Ozaeta (80
Phil. 383 [1948]):
Except, perhaps when it is clear that the purpose
of the examinations is unlawful, or sheer, idle
curiosity, we do not believe it is the duty under
the law of registration officers to concern
themselves with the motives, reasons, and objects
of the person seeking access to the records. It is
not their prerogative to see that the information
which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it
be wrong to publish the contents of the records, it is
the legislature and not the officials having custody
thereof which is called upon to devise a
remedy. (emphasis supplied)
It is significant to point out that this Court in the 1948 case of
Subido v. Ozaeta, supra, upheld the right to information based on
the statutory right then provided in Sec. 56 of the Land
Registration Act (Act 496, as amended). Consequently, We see no
cogent reason why said right, now constitutionalized, should be
given less efficacy and primacy than what the fundament law
mandates.
The Court is not unaware of RA 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees) which provides,
among others, certain exceptions as regards the availability of
official records or documents to the requesting public, e.g., closed
door Cabinet sessions and deliberations of this Court. Suffice it to

state, however, that the exceptions therein enumerated find no

application in the case at bar. Petitioner request is not concerned
with the deliberations of respondent Board but with its documents
or records made after a decision or order has been rendered.
Neither will the examination involve disclosure of trade secrets or
matters pertaining to national security which would otherwise limit
the right of access to official records (See Legaspi v. Civil Service
Commission,supra).
We are likewise not impressed with the proposition advanced by
respondents that respondent Morato is empowered by PD 1986 to
unilaterally downgrade or upgrade a film reviewed especially those
which are controversial. The pertinent provisions of said decree
provides:
Sec 4. Decision. The decision of the BOARD
either approving or disapproving for exhibition in
the Philippines a motion picture, television
program, still and other pictorial advertisement
submitted to it for examination and preview must
be rendered within a period of ten (10) days which
shall be counted from the date of receipt by the
BOARD of an application for the purpose . . .
For each review session, the Chairman of the
Board shall designate a sub-committee composed
of at least three BOARD members to undertake
the work of review. Any disapproval or deletion
must be approved by a majority of the subcommittee members so designated. After receipt of
the written decision of the sub-committee, a
motion for reconsideration in writing may be
made, upon which the Chairman of the Board
shall designate a sub-committee of five BOARD
members to undertake a second review session,
whose decision on behalf of the Board shall be
rendered through a majority of the sub-committee
members so designated and present at the second
review session. This second review session shall
be presided over by the Chairman, or the ViceChairman. The decision of the BOARD in the
second review session shall be rendered within
five (5) days from the date of receipt of the motion
for reconsideration.
Every decision of the BOARD disapproving a
motion picture, television program or publicity
material for exhibition in the Philippines must be
in writing, and shall state the reasons or grounds
for such disapproval. No film or motion picture
intended for exhibition at the moviehouses or
theaters or on television shall be disapproved by
reason of its topic, theme or subject matter, but
upon the merits of each picture or program
considered in its entirety.
The second decision of the BOARD shall be final,
with the exception of a decision disapproving or
prohibiting a motion picture or television program
in its entirety which shall be appealable to the
President of the Philippines, who may himself
decide the appeal, or be assisted either by an ad
hoe committee he may create or by the Appeals
Committee herein created.

An Appeals Committee in the Office of the

President of the Philippines is hereby created
composed of a Chairman and four (4) members to
be appointed by the President of the Philippines,
which shall submit its recommendation to the
President. The Office of the Presidential Assistant
for Legal Affairs shall serve as the Secretariat of
the Appeals Committee.
The decision of the President of the Philippines on
any appealed matter shall be final.

apply anew with the Board for its review and

reclassification.
Sec 14. Appeal. The decision of the Committee
of Five Board Members in the second review shall
be final, with the exception of a decision
disapproving or prohibiting a motion picture in its
entirety which shall be appealable to the
President of the Philippines who may himself
decide the appeal or refer it to the Appeals
Committee in the Office of the President for
adjudication.

Implementing Rules and Regulations

Sec 11. Review by Sub-Committee of Three. a) A
proper application having been filed, the
Chairman of the Board shall, as the exigencies of
the service may permit, designate a SubCommittee of at least three Board Members who
shall meet, with notice to the applicant, within ten
days from receipt of the completed application.
The Sub-Committee shall then preview the motion
picture subject of the application.
b) Immediately after the preview, the applicant or
his representative shall withdraw to await the
results of the deliberation of the Sub-Committee.
After reaching a decision, the Sub-Committee
shall summon the applicant or his representative
and inform him of its decision giving him an
opportunity either to request reconsideration or to
offer certain cuts or deletions in exchange for a
better classification. The decision shall be in
writing, stating, in case of disapproval of the film
or denial of the classification rating desired or
both, the reason or reasons for such disapproval or
denial and the classification considered by the
Sub-Committee member dissenting from the
majority opinion may express his dissent in
writing.
c) The decision including the dissenting opinion, if
any, shall immediately be submitted to the
Chairman of the Board for transmission to the
applicant.
Sec 12. Review by Sub-Committee of Five.
Within five days from receipt of a copy of the
decision of the Sub-Committee referred to in the
preceding section, the applicant may file a motion
for reconsideration in writing of that decision. On
receipt of the motion, the Chairman of the Board
shall designate a Sub-Committee of Five Board
Members which shall consider the motion and,
within five days of receipt of such motion, conduct
a second preview of the film. The review shall, to
the extent applicable, follow the same procedure
provided in the preceding section.
Sec 13. Reclassification. An applicant desiring a
change in the classification rating given his film
by either the Sub-Committee of Three? or
Committee of Five mentioned in the immediately
preceeding two sections may re-edit such film and

On the other hand, the powers and functions of the MTRCB

Chairman are found in Section 5 of the same decree as follows:
Sec. 5. Executive Officer. The Chairman of the
BOARD shall be the Chief Executive Officer of the
BOARD. He shall exercise the following functions,
powers and duties:
(a) Execute, implement and enforce the decisions,
orders, awards, rules and regulations issued by
the BOARD;
(b) Direct and supervise the operations and the
internal affairs of the BOARD;
(c) Establish the internal
administrative procedures of
recommend to the BOARD the
necessary
administrative
personnel; and

organization and
the BOARD, and
appointment of the
and
subordinate

(d) Exercise such other powers and functions and

perform such duties as are not specifically lodged
in the BOARD.
It is at once apparent from a reading of the above provisions of PD
1986 that respondent Morato, as Chairman of the MTRCB, is not
vested with any authority to reverse or overrule by himself alone a
decision rendered by a committee which conducted a review of
motion pictures or television programs.
The power to classify motion pictures into categories such as
"General Patronage" or "For Adults Only" is vested with the
respondent Board itself and not with the Chairman thereof (Sec. 3
[e], PD 1986). As Chief Executive Officer, respondent Morato's
function as Chairman of the Board calls for the implementation and
execution, not modification or reversal, of the decisions or orders of
the latter (Sec. 5 [a], Ibid.). The power of classification having been
reposed by law exclusively with the respondent Board, it has no
choice but to exercise the same as mandated by law, i.e., as a
collegial body, and not transfer it elsewhere or discharge said power
through the intervening mind of another. Delegata potestas non
potest delegari a delegated power cannot be delegated. And since
the act of classification involves an exercise of the Board's
discretionary power with more reason the Board cannot, by way of
the assailed resolution, delegate said power for it is an established
rule in administrative law that discretionary authority cannot be a
subject of delegation.

WHEREFORE, the instant petition is GRANTED. Resolution Nos.

10-89 and 88-1-25 issued by the respondent Board are hereby
declared null and void.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
Paras, Feliciano, Padilla, Medialdea, Regalado and Davide, Jr.,
JJ., concur.
Grio-Aquino and Romero, JJ., took no part.

[G.R. No. 130716. December 9, 1998]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT (PCGG)
and MAGTANGGOL GUNIGUNDO, (in his capacity
as chairman of the PCGG), respondents. GLORIA A.
JOPSON, CELNAN A. JOPSON, SCARLET A.
JOPSON, and TERESA A. JOPSON, petitioners-inintervention.
DECISION
PANGANIBAN, J:
Petitioner asks this Court to define the nature and the extent
of the peoples constitutional right to information on matters of
public concern. Does this right include access to the terms of
government
negotiations prior to
their
consummation
or
conclusion? May the government, through the Presidential
Commission on Good Government (PCGG), be required to reveal
the proposed terms of a compromise agreement with the Marcos
heirs as regards their alleged ill-gotten wealth? More specifically,
are the General Agreement and Supplemental Agreement, both
dated December 28, 1993 and executed between the PCGG and the
Marcos heirs, valid and binding?

The Case
These are the main questions raised in this original action
seeking (1) to prohibit and [e]njoin respondents [PCGG and its
chairman] from privately entering into, perfecting and/or executing
any agreement with the heirs of the late President Ferdinand E.
Marcos x x x relating to and concerning the properties and assets
of Ferdinand Marcos located in the Philippines and/or abroad -including the so-called Marcos gold hoard; and (2) to [c]ompel
respondent[s] to make public all negotiations and agreement, be
they ongoing or perfected, and all documents related to or relating
to such negotiations and agreement between the PCGG and the
Marcos heirs.[1]

The Facts

Petitioner Francisco I. Chavez, as taxpayer, citizen and

former government official who initiated the prosecution of the
Marcoses and their cronies who committed unmitigated plunder of
the public treasury and the systematic subjugation of the countrys
economy, alleges that what impelled him to bring this action were
several news reports[2] bannered in a number of broadsheets
sometime in September 1997. These news items referred to (1) the
alleged discovery of billions of dollars of Marcos assets deposited in
various coded accounts in Swiss banks; and (2) the reported
execution of a compromise, between the government (through
PCGG) and the Marcos heirs, on how to split or share these assets.
Petitioner,
invoking
his
constitutional
right
to
information[3] and the correlative duty of the state to disclose
publicly
all
its
transactions
involving
the
national
interest,[4] demands that respondents make public any and all
negotiations and agreements pertaining to PCGGs task of
recovering the Marcoses ill-gotten wealth. He claims that any
compromise on the alleged billions of ill-gotten wealth involves an
issue of paramount public interest, since it has a debilitating
effect on the countrys economy that would be greatly prejudicial to
the national interest of the Filipino people. Hence, the people in
general have a right to know the transactions or deals being
contrived and effected by the government.
Respondents, on the other hand, do not deny forging a
compromise agreement with the Marcos heirs. They claim, though,
that petitioners action is premature, because there is no showing
that he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled
to make any disclosure, since the proposed terms and conditions of
the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have
submitted the subject Agreements to the Sandiganbayan for its
approval in Civil Case No. 141, entitledRepublic v. Heirs of
Ferdinand E. Marcos, and that the Republic opposed such move on
the principal grounds that (1) said Agreements have not been
ratified by or even submitted to the President for approval,
pursuant to Item No. 8 of the General Agreement; and (2) the
Marcos heirs have failed to comply with their undertakings therein,
particularly the collation and submission of an inventory of their
assets. The Republic also cited an April 11, 1995 Resolution in
Civil Case No. 0165, in which the Sandiganbayan dismissed a
similar petition filed by the Marcoses attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4,
1998 Memorandum[5] to then PCGG Chairman Magtanggol
Gunigundo, categorically stated:
This is to reiterate my previous position embodied in the Palace
Press Release of 6 April 1995 that I have not authorized you to
approve the Compromise Agreements of December 28, 1993 or any
agreement at all with the Marcoses, and would have disapproved
them had they been submitted to me.
The Full Powers of Attorney of March 1994 and July 4, 1994, did
not authorize you to approve said Agreements, which I reserve for
myself as President of the Republic of the Philippines.
The assailed principal Agreement[6] reads:
GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by

and between The Republic of the Philippines, through the Presidential
Commission on Good Government (PCGG), a
governmental agency vested with authority defined
under Executive Orders Nos. 1, 2 and 14, with offices at
the Philcomcen Building, Pasig, Metro Manila,
represented by its Chairman referred to as the FIRST
PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda
Romualdez Marcos and Ferdinand R. Marcos, Jr., all of
legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense
of nationalism and love of country and of the entire Filipino people,
and their desire to set up a foundation and finance impact projects
like installation of power plants in selected rural areas and
initiation of other community projects for the empowerment of the
people;
WHEREAS, the FIRST PARTY has obtained a judgment from the
Swiss Federal Tribunal of December 21, 1990, that the $356 million
belongs in principle to the Republic of the Philippines provided
certain conditionalities are met, but even after 7 years, the FIRST
PARTY has not been able to procure a final judgment of conviction
against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn
out litigation which, as proven by the past 7 years, is consuming
money, time and effort, and is counter-productive and ties up assets
which the FIRST PARTY could otherwise utilize for its
Comprehensive Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted
a policy of unity and reconciliation in order to bind the nations
wounds and start the process of rebuilding this nation as it goes on
to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims
which the parties may have against one another, whether past,
present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual
covenants set forth herein, the parties agree as follows:
1. The parties will collate all assets presumed to be
owned by, or held by other parties for the benefit of,
the PRIVATE PARTY for purposes of determining the
totality of the assets covered by the settlement. The
subject assets shall be classified by the nature
thereof, namely: (a) real estate; (b) jewelry; (c)
paintings and other works of art; (d) securities; (e)
funds on deposit; (f) precious metals, if any, and (g)
miscellaneous assets or assets which could not
appropriately fall under any of the preceding

classification. The list shall be based on the full

disclosure of the PRIVATE PARTY to insure its
accuracy.
2. Based on the inventory, the FIRST PARTY shall
determine which shall be ceded to the FIRST PARTY,
and which shall be assigned to/retained by the
PRIVATE PARTY. The assets of the PRIVATE
PARTY shall be net of, and exempt from, any form of
taxes due the Republic of the Philippines. However,
considering the unavailability of all pertinent and
relevant documents and information as to balances
and ownership, the actual specification of assets to be
retained by the PRIVATE PARTY shall be covered by
supplemental agreements which shall form part of
this Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully
disclose but which are held by trustees, nominees,
agents or foundations are hereby waived over by the
PRIVATE PARTY in favor of the FIRST PARTY. For
this purpose, the parties shall cooperate in taking the
appropriate action, judicial and/or extrajudicial, to
recover the same for the FIRST PARTY.
4. All disclosures of assets made by the PRIVATE
PARTY shall not be used as evidence by the FIRST
PARTY in any criminal, civil, tax or administrative
case, but shall be valid and binding against said
PARTY for use by the FIRST PARTY in withdrawing
any account and/or recovering any asset. The
PRIVATE PARTY withdraws any objection to the
withdrawal by and/or release to the FIRST PARTY by
the Swiss banks and/or Swiss authorities of the $356
million, its accrued interests, and/or any other
account; over which the PRIVATE PARTY waives any
right, interest or participation in favor of the FIRST
PARTY. However, any withdrawal or release of any
account aforementioned by the FIRST PARTY shall
be made in the presence of any authorized
representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries,
agents, nominees, administrators, lawyers, or any
other party acting in similar capacity in behalf of the
PRIVATE PARTY are hereby informed through this
General Agreement to insure that it is fully
implemented and this shall serve as absolute
authority from both parties for full disclosure to the
FIRST PARTY of said assets and for the FIRST
PARTY to withdraw said account and/or assets and
any other assets which the FIRST PARTY on its own
or through the help of the PRIVATE PARTY/their
trustees, etc., may discover.
6. Any asset which may be discovered in the future as
belonging to the PRIVATE PARTY or is being held by
another for the benefit of the PRIVATE PARTY and
which is not included in the list per No. 1 for
whatever reason shall automatically belong to the
FIRST PARTY, and the PRIVATE PARTY in
accordance with No. 4 above, waives any right
thereto.
7. This Agreement shall be binding on, and inure to the
benefit of, the parties and their respective legal
representatives, successors and assigns and shall
supersede any other prior agreement.

8. The PARTIES shall submit this and any other

implementing Agreements to the President of the
Philippines for approval. In the same manner, the
PRIVATE PARTY shall provide the FIRST PARTY
assistance by way of testimony or deposition on any
information it may have that could shed light on the
cases being pursued by the FIRST PARTY against
other parties. The FIRST PARTY shall desist from
instituting new suits already subject of this
Agreement against the PRIVATE PARTY and cause
the dismissal of all other cases pending in the
Sandiganbayan and in other courts.

SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by
and between -The Republic of the Philippines, through the
Presidential Commission on Good Government (PCGG),
a governmental agency vested with authority defined
under Executive Orders Nos. 1, 2 and 14, with offices at
the Philcomcen Building, Pasig, Metro Manila,
represented by its Chairman Magtanggol C. Gunigundo,
hereinafter referred to as the FIRST PARTY,
-- and --

9. In case of violation by the PRIVATE PARTY of any of

the conditions herein contained, the PARTIES shall
be restored automatically to the status quo ante the
signing of this Agreement.

Estate of Ferdinand E. Marcos, represented by Imelda

Romualdez Marcos and Ferdinand R. Marcos, Jr., all of
legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos,
Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.

For purposes of this Agreement, the PRIVATE PARTY shall be

represented by Atty. Simeon M. Mesina, Jr., as their only Attorneyin-Fact.

W I T N E S S E T H:

IN WITNESS WHEREOF, the parties have signed this instrument

this 28th day of December, 1993, in Makati, Metro Manila.

The parties in this case entered into a General

Agreement dated Dec. 28, 1993;

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT

The PRIVATE PARTY expressly reserve their right to

pursue their interest and/or sue over local assets located
in the Philippines against parties other than the FIRST
PARTY.

By:

The parties hereby agree that all expenses related to the

recovery and/or withdrawal of all assets including
lawyers fees, agents fees, nominees service fees, bank
charges, traveling expenses and all other expenses
related thereto shall be for the account of the PRIVATE
PARTY.

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman
ESTATE OF FERDINAND E.
MARCOS, IMELDA R.
MARCOS, MA. IMELDA
MARCOS-MANOTOC,
FERDINAND R. MARCOS, JR.,
& IRENE MARCOS-ARANETA
By:
[Sgd.]IMELDA ROMUALDEZMARCOS
[Sgd.] MA. IMELDA MARCOSMANOTOC

In consideration of the foregoing, the parties hereby agree that the

PRIVATE PARTY shall be entitled to the equivalent of 25% of the
amount that may be eventually withdrawn from said $356 million
Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this instrument
this 28th day of December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:

FERDINAND R. MARCOS, JR.[7]

[Sgd.] IRENE MARCOSARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M.
MESINA, JR.
Counsel & Attorney-inFact
Petitioner also denounces this supplement to the above
Agreement: [8]

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman
ESTATE OF FERDINAND E.
MARCOS, IMELDA R.
MARCOS, MA. IMELDA
MARCOS-MANOTOC,
FERDINAND R. MARCOS, JR.,
& IRENE MARCOS-ARANETA
By:

[Sgd.] IMELDA ROMUALDEZMARCOS

[Sgd.] MA. IMELDA MARCOSMANOTOC

legitimate claims. In a minute Resolution issued on August 24,

1998, the Court granted their motion to intervene and required the
respondents to comment thereon. The September 25, 1998
Comment[12] of the solicitor general on said motion merely
reiterated his aforecited arguments against the main petition.[13]

FERDINAND R. MARCOS, JR.[9]

The Courts Ruling
[Sgd.] IRENE MARCOSARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M.
MESINA, JR.
Counsel & Attorney-inFact
Acting on a motion of petitioner, the Court issued a
Temporary Restraining Order[10] dated March 23, 1998, enjoining
respondents, their agents and/or representatives from entering
into, or perfecting and/or executing any agreement with the heirs of
the late President Ferdinand E. Marcos relating to and concerning
their ill-gotten wealth.

Issues

The Oral Argument, held on March 16, 1998, focused on the

following issues:
(a) Procedural:
(1) Whether or not the petitioner has the personality or legal
standing to file the instant petition; and
(2) Whether or not this Court is the proper court before which this
action may be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to
the public the details of any agreement, perfected or not, with the
Marcoses; and
(2) Whether or not there exist any legal restraints against a
compromise agreement between the Marcoses and the PCGG
relative to the Marcoses ill-gotten wealth.[11]
After their oral presentations, the parties filed their respective
memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all
surnamed Jopson, filed before the Court a Motion for Intervention,
attaching thereto their Petition in Intervention. They aver that
they are among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the
decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S.
Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16,
1994 and the Decision of the Swiss Supreme Court of December 10,
1997. As such, they claim to have personal and direct interest in
the subject matter of the instant case, since a distribution or
disposition of the Marcos properties may adversely affect their

The petition is imbued with merit.

First Procedural Issue: Petitioners Standing

Petitioner, on the one hand, explains that as a taxpayer and
citizen, he has the legal personality to file the instant petition. He
submits that since ill-gotten wealth belongs to the Filipino people
and [is], in truth and in fact, part of the public treasury, any
compromise in relation to it would constitute a diminution of the
public funds, which can be enjoined by a taxpayer whose interest is
for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasizes, the matter of recovering the
ill-gotten wealth of the Marcoses is an issue of transcendental
importance to the public. He asserts that ordinary taxpayers have
a right to initiate and prosecute actions questioning the validity of
acts or orders of government agencies or instrumentalities, if the
issues raised are of paramount public interest; and if they
immeasurably affect the social, economic, and moral well-being of
the people.
Moreover, the mere fact that he is a citizen satisfies the
requirement of personal interest, when the proceeding involves the
assertion of a public right,[14] such as in this case. He invokes
several decisions[15] of this Court which have set aside the
procedural matter of locus standi, when the subject of the case
involved public interest.
On the other hand, the solicitor general, on behalf of
respondents, contends that petitioner has no standing to institute
the present action, because no expenditure of public funds is
involved and said petitioner has no actual interest in the alleged
agreement. Respondents further insist that the instant petition is
premature, since there is no showing that petitioner has requested
PCGG to disclose any such negotiations and agreements; or that, if
he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the
controlling decisional rule as regards his legal standing to institute
the instant petition. Access to public documents and records is a
public right, and the real parties in interest are the people
themselves.[16]
In Taada v. Tuvera,[17] the Court asserted that when the
issue concerns a public right and the object of mandamus is to
obtain the enforcement of a public duty, the people are regarded as
the real parties in interest; and because it is sufficient that
petitioner is a citizen and as such is interested in the execution of
the laws, he need not show that he has any legal or special interest
in the result of the action.[18] In the aforesaid case, the petitioners
sought to enforce their right to be informed on matters of public
concern, a right then recognized in Section 6, Article IV of the 1973
Constitution,[19] in connection with the rule that laws in order to be
valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners
legal standing, the Court declared that the right they sought to be

enforced is a public right recognized by no less than the

fundamental law of the land.

for certiorari, prohibition, mandamus, quo

corpus.

Legaspi
v.
Civil
Service
Commission,[20] while
reiterating Taada,
further
declared
that
when
a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that
petitioner is a citizen and, therefore, part of the general public
which possesses the right.[21]

Respondents argue that petitioner should have properly

sought relief before the Sandiganbayan, particularly in Civil Case
No. 0141, in which the enforcement of the compromise Agreements
is pending resolution. There may seem to be some merit in such
argument, if petitioner is merely seeking to enjoin the enforcement
of the compromise and/or to compel the PCGG to disclose to the
public the terms contained in said Agreements. However,
petitioner is here seeking the public disclosure of all negotiations
and agreement, be they ongoing or perfected, and documents
related to or relating to such negotiations and agreement between
the PCGG and the Marcos heirs.

Further, in Albano v. Reyes,[22] we said that while expenditure

of public funds may not have been involved under the questioned
contract for the development, the management and the operation of
the Manila International Container Terminal, public interest [was]
definitely involved considering the important role [of the subject
contract] x x x in the economic development of the country and the
magnitude of the financial consideration involved. We concluded
that, as a consequence, the disclosure provision in the Constitution
would constitute sufficient authority for upholding the petitioners
standing.
Similarly, the instant petition is anchored on the right of the
people to information and access to official records, documents and
papers -- a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid
down by decisional law to sustain petitioners legal standing, i.e. (1)
the enforcement of a public right (2) espoused by a Filipino
citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner
Chavez is rendered moot by the intervention of the Jopsons, who
are among the legitimate claimants to the Marcos wealth. The
standing of the Jopsons is not seriously contested by the solicitor
general. Indeed, said petitioners-intervenors have a legal interest
in the subject matter of the instant case, since a distribution or
disposition of the Marcoses ill-gotten properties may adversely
affect the satisfaction of their claims.

Second Procedural Issue:The Courts Jurisdiction

Petitioner asserts that because this petition is an original
action for mandamus and one that is not intended to delay any
proceeding in the Sandiganbayan, its having been filed before this
Court was proper. He invokes Section 5, Article VIII of the
Constitution, which confers upon the Supreme Court original
jurisdiction over petitions for prohibition and mandamus.
The solicitor general, on the other hand, argues that the
petition has been erroneously brought before this Court, since there
is neither a justiciable controversy nor a violation of petitioners
rights by the PCGG. He alleges that the assailed agreements are
already the very lis mota in Sandiganbayan Civil Case No. 0141,
which has yet to dispose of the issue; thus, this petition is
premature. Furthermore, respondents themselves have opposed
the Marcos heirs motion, filed in the graft court, for the approval of
the subject Agreements. Such opposition belies petitioners claim
that the government, through respondents, has concluded a
settlement with the Marcoses as regards their alleged ill-gotten
assets.
In Taada and Legaspi, we upheld therein petitioners resort
to a mandamus proceeding, seeking to enforce a public right as well
as to compel performance of a public duty mandated by no less than
the fundamental law.[23] Further, Section 5, Article VIII of the
Constitution,
expressly
confers
upon
the
Supreme
Courtoriginal jurisdiction
over
petitions

warranto and habeas

In other words, this petition is not confined to the Agreements

that have already been drawn, but likewise to any other ongoing or
future undertaking towards any settlement on the alleged Marcos
loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional
provisions on public transactions. This broad and prospective
relief sought by the instant petition brings it out of the realm of
Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of Any Agreement, Perfected or
Not
In seeking the public disclosure of negotiations and
agreements pertaining to a compromise settlement with the
Marcoses as regards their alleged ill-gotten wealth, petitioner
invokes the following provisions of the Constitution:
Sec. 7 [Article III]. The right of the people to information on
matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
Sec. 28 [Article II]. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
Respondents opposite view is that the above constitutional
provisions refer to completed and operative official acts, not to those
still being considered. As regards the assailed Agreements entered
into by the PCGG with the Marcoses, there is yet no right of action
that has accrued, because said Agreements have not been approved
by the President, and the Marcos heirs have failed to fulfill their
express undertaking therein. Thus, the Agreements have not
become effective. Respondents add that they are not aware of any
ongoing negotiation for another compromise with the Marcoses
regarding their alleged ill-gotten assets.
The information and the transactions referred to in the
subject provisions of the Constitution have as yet no defined scope
and extent. There are no specific laws prescribing the exact
limitations within which the right may be exercised or the
correlative state duty may be obliged. However, the following are
some of the recognized restrictions: (1) national security matters
and intelligence information, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential
information.

Limitations to the Right: (1) National Security Matters

At the very least, this jurisdiction recognizes the common law
holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military,
diplomatic and other national security matters.[24] But where there
is no need to protect such state secrets, the privilege may not be
invoked to withhold documents and other information, [25] provided
that they are examined in strict confidence and given scrupulous
protection.
Likewise, information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest.[26]

(2) Trade Secrets and Banking Transactions

The drafters of the Constitution also unequivocally affirmed
that, aside from national security matters and intelligence
information, trade or industrial secrets (pursuant to the
Intellectual Property Code[27] and other related laws) as well as
banking transactions (pursuant to the Secrecy of Bank Deposits
Act[28]) are also exempted from compulsory disclosure.[29]

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as
those relating to the apprehension, the prosecution and the
detention of criminals,[30] which courts may not inquire into prior to
such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access to,
for example, police information regarding rescue operations, the
whereabouts of fugitives, or leads on covert criminal activities.

(4) Other Confidential Information

The Ethical Standards Act[31] further prohibits public officials
and employees from using or divulging confidential or classified
information officially known to them by reason of their office and
not made available to the public.[32]
Other acknowledged limitations to information access include
diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the
internal deliberations of the Supreme Court.[33]

Scope: Matters of Public Concern and Transactions

Involving Public Interest
In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the
information sought must be matters of public concern, access to
which may be limited by law. Similarly, the state policy of full
public disclosure extends only to transactions involving public
interest and may also be subject to reasonable conditions
prescribed by law. As to the meanings of the terms public
interest and public concern, the Court, in Legaspi v. Civil Service
Commission,[35] elucidated:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. Public concern
like public interest is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may

want to know, either because these directly affect their lives, or

simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
Considered a public concern in the above-mentioned case was
the legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only by
persons who are eligibles. So was the need to give the general
public adequate notification of various laws that regulate and affect
the actions and conduct of citizens, as held in Taada. Likewise
did the public nature of the loanable funds of the GSIS and the
public office held by the alleged borrowers (members of the defunct
Batasang
Pambansa)
qualify
the
information
sought
in Valmonte as matters of public interest and concern. In AquinoSarmiento v. Morato,[36] the Court also held that official acts of
public officers done in pursuit of their official functions are public in
character; hence, the records pertaining to such official acts and
decisions are within the ambit of the constitutional right of access
to public records.
Under Republic Act No. 6713, public officials and employees
are mandated to provide information on their policies and
procedures in clear and understandable language, [and] ensure
openness of information, public consultations and hearings
whenever appropriate x x x, except when otherwise provided by
law or when required by the public interest. In particular, the
law mandates free public access, at reasonable hours, to the annual
performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements
of assets, liabilities and financial disclosures of all public officials
and employees.[37]
In general, writings coming into the hands of public officers in
connection with their official functions must be accessible to the
public, consistent with the policy of transparency of governmental
affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have
entrusted the affairs of the government are honestly, faithfully and
competently
performing
their
functions
as
public
servants.[38] Undeniably, the essence of democracy lies in the free
flow of thought;[39] but thoughts and ideas must be well-informed so
that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a responsible,
reasonable and effective manner. Certainly, it is by ensuring an
unfettered and uninhibited exchange of ideas among a wellinformed public that a government remains responsive to the
changes desired by the people.[40]

The Nature of the Marcoses Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and
their cronies in February 1986, the new government headed by
President Corazon C. Aquino was specifically mandated to
[r]ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and [to] protect the interest of
the people through orders of sequestration or freezing of assets or
accounts.[41] Thus, President Aquinos very first executive orders
(which partook of the nature of legislative enactments) dealt with
the recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986,
only two (2) days after the Marcoses fled the country, created the

PCGG which was primarily tasked to assist the President in the

recovery of vast government resources allegedly amassed by former
President Marcos, his immediate family, relatives and close
associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all
persons and entities who had knowledge or possession of ill-gotten
assets and properties were warned and, under pain of penalties
prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the
recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued
giving additional powers to the PCGG which, taking into
account the overriding considerations of national interest and
national survival, required it to achieve expeditiously and
effectively its vital task of recovering ill-gotten wealth.
With such pronouncements of our government, whose
authority emanates from the people, there is no doubt that the
recovery of the Marcoses alleged ill-gotten wealth is a matter of
public concern and imbued with public interest.[42] We may also add
that ill-gotten wealth, by its very nature, assumes a public
character. Based on the aforementioned Executive Orders, illgotten wealth refers to assets and properties purportedly acquired,
directly or indirectly, by former President Marcos, his immediate
family, relatives and close associates through or as a result of their
improper or illegal use of government funds or properties; or their
having taken undue advantage of their public office; or their use of
powers, influences or relationships, resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino
people and the Republic of the Philippines. Clearly, the assets and
properties referred to supposedly originated from the government
itself. To all intents and purposes, therefore, they belong to the
people. As such, upon reconveyance they will be returned to the
public treasury, subject only to the satisfaction of positive claims of
certain persons as may be adjudged by competent courts. Another
declared overriding consideration for the expeditious recovery of
ill-gotten wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question of
whether petitioner has a right to respondents disclosure of any
agreement that may be arrived at concerning the Marcoses
purported ill-gotten wealth.

Access to Information on Negotiating Terms

But does the constitutional provision likewise guarantee
access to information regarding ongoing negotiations or proposals
prior to the final agreement? This same clarification was sought
and clearly addressed by the constitutional commissioners during
their deliberations, which we quote hereunder:[43]
MR. SUAREZ. And when we say transactions which should be
distinguished from contracts, agreements, or treaties or whatever,
does the Gentleman refer to the steps leading to the consummation
of the contract, or does he refer to the contract itself?
MR. OPLE. The transactions used here, I suppose, is generic and,
therefore, it can cover both steps leading to a contract, and already
a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading
to the consummation of the transaction?

MR. OPLE. Yes, subject to reasonable safeguards on the national

interest.
Considering the intent of the framers of the
Constitution, we believe that it is incumbent upon the
PCGG and its officers, as well as other government
representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such
information, though, must pertain to definite propositions of the
government, not necessarily to intra-agency or inter-agency
recommendations or communications[44] during the stage when
common assertions are still in the process of being formulated or
are in the exploratory stage. There is a need, of course, to observe
the same restrictions on disclosure of information in general, as
discussed earlier -- such as on matters involving national security,
diplomatic or foreign relations, intelligence and other classified
information.

Second Substantive Issue: Legal Restraints on a MarcosPCGG Compromise

Petitioner lastly contends that any compromise agreement
between the government and the Marcoses will be a virtual
condonation of all the alleged wrongs done by them, as well as an
unwarranted permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal
restraint on entering into a compromise with the Marcos heirs,
provided the agreement does not violate any law.

Prohibited Compromises
In general, the law encourages compromises in civil cases,
except with regard to the following matters: (1) the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any
ground for legal separation, (4) future support, (5) the jurisdiction
of courts, and (6) future legitime.[45] And like any other contract, the
terms and conditions of a compromise must not be contrary to law,
morals, good customs, public policy or public order. [46] A
compromise is binding and has the force of law between the
parties,[47] unless the consent of a party is vitiated -- such as by
mistake, fraud, violence, intimidation or undue influence -- or when
there is forgery, or if the terms of the settlement are so palpably
unconscionable. In the latter instances, the agreement may be
invalidated by the courts.[48]

Effect of Compromise on Civil Actions

One of the consequences of a compromise, and usually its
primary object, is to avoid or to end a litigation.[49] In fact, the law
urges courts to persuade the parties in a civil case to agree to a fair
settlement.[50] As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise. [51]
In Republic & Campos Jr. v. Sandiganbayan,[52] which
affirmed the grant by the PCGG of civil and criminal immunity to
Jose Y. Campos and family, the Court held that in the absence of an
express prohibition, the rule on compromises in civil actions under
the Civil Code is applicable to PCGG cases. Such principle is
pursuant to the objectives of EO No. 14, particularly the just and
expeditious recovery of ill-gotten wealth, so that it may be used to
hasten economic recovery. The same principle was upheld

in Benedicto v. Board of Administrators of Television Stations RPN,

BBC and IBC[53] and Republic v. Benedicto,[54] which ruled in favor
of the validity of the PCGG compromise agreement with Roberto S.
Benedicto.

Immunity from Criminal Prosecution

However, any compromise relating to the civil liability
arising
from
an
offense does not automatically
terminate the criminal proceeding against or extinguish the
criminal liability of the malefactor.[55] While a compromise in
civil suits is expressly authorized by law, there is no similar general
sanction as regards criminal liability. The authority must be
specifically conferred. In the present case, the power to grant
criminal immunity was conferred on PCGG by Section 5 of EO No.
14, as amended by EO No. 14-A, which provides:
SECTION 5. The Presidential Commission on Good Government
is authorized to grant immunity from criminal prosecution to any
person who provides information or testifies in any investigation
conducted by such Commission to establish the unlawful manner in
which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case
where such information or testimony is necessary to ascertain or
prove the latters guilt or his civil liability. The immunity thereby
granted shall be continued to protect the witness who repeats such
testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.
The above provision specifies that the PCGG may exercise
such authority under these conditions: (1) the person to whom
criminal immunity is granted provides information or testifies in
an investigation conducted by the Commission; (2) the information
or testimony pertains to the unlawful manner in which the
respondent, defendant or accused acquired or accumulated illgotten property; and (3) such information or testimony is necessary
to ascertain or prove guilt or civil liability of such individual. From
the wording of the law, it can be easily deduced that
the person referred to is a witness in the proceeding, not the
principal respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and
criminal immunity to him and his family was [i]n consideration of
the full cooperation of Mr. Jose Y. Campos [with] this Commission,
his voluntary surrender of the properties and assets [--] disclosed
and declared by him to belong to deposed President Ferdinand E.
Marcos [--] to the Government of the Republic of the Philippines[;]
his full, complete and truthful disclosures[;] and his commitment to
pay a sum of money as determined by the Philippine
Government.[56] Moreover, the grant of criminal immunity to the
Camposes and the Benedictos was limited to acts and omissions
prior to February 25, 1996. At the time such immunity was
granted, no criminal cases have yet been filed against them before
the competent courts.

Validity of the PCGG-Marcos Compromise Agreements

Going now to the subject General and Supplemental
Agreements between the PCGG and the Marcos heirs, a cursory
perusal thereof reveals serious legal flaws. First, the Agreements
do not conform to the above requirements of EO Nos. 14 and 14A. We believe that criminal immunity under Section 5
cannot be granted to the Marcoses, who are the principal
defendants in the spate of ill-gotten wealth cases now

pending before the Sandiganbayan. As stated earlier, the

provision is applicable mainly to witnesses who provide information
or testify against a respondent, defendant or accused in an illgotten wealth case.
While the General Agreement states that the Marcoses shall
provide the [government] assistance by way of testimony or
deposition on any information [they] may have that could shed light
on the cases being pursued by the [government] against other
parties,[57] the clause does not fully comply with the law. Its
inclusion in the Agreement may have been only an afterthought,
conceived
in pro
forma compliance
with
Section
5
of
EO No. 14, as amended. There is no indication whatsoever that
any of the Marcos heirs has indeed provided vital information
against any respondent or defendant as to the manner in which the
latter may have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the
PCGG commits to exempt from all forms of taxes the properties to
be retained by the Marcos heirs. This is a clear violation of the
Constitution. The power to tax and to grant tax exemptions is
vested in the Congress and, to a certain extent, in the local
legislative bodies.[58] Section 28 (4), Article VI of the Constitution,
specifically provides: No law granting any tax exemption shall be
passed without the concurrence of a majority of all the Members of
the Congress. The PCGG has absolutely no power to grant
tax exemptions, even under the cover of its authority to
compromise ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the
Marcoses from paying taxes on their properties, such law will
definitely not pass the test of the equal protection clause under the
Bill of Rights. Any special grant of tax exemption in favor only of
the Marcos heirs will constitute class legislation. It will also violate
the constitutional rule that taxation shall be uniform and
equitable.[59]
Neither can the stipulation be construed to fall within the
power of the commissioner of internal revenue to compromise
taxes. Such authority may be exercised only when (1) there
is reasonable doubt as to the validity of the claim against the
taxpayer, and (2) the taxpayers financial position demonstrates
a clear inability to pay.[60] Definitely, neither requisite is present in
the case of the Marcoses, because under the Agreement they are
effectively conceding the validity of the claims against their
properties, part of which they will be allowed to retain. Nor can the
PCGG grant of tax exemption fall within the power of the
commissioner to abate or cancel a tax liability. This power can be
exercised only when (1) the tax appears to be unjustly or
excessively assessed, or (2) the administration and collection costs
involved do not justify the collection of the tax due. [61] In this
instance, the cancellation of tax liability is done even before the
determination of the amount due. In any event, criminal violations
of the Tax Code, for which legal actions have been filed in court or
in which fraud is involved, cannot be compromised.[62]
Third, the government binds itself to cause the dismissal of all
cases against the Marcos heirs, pending before the Sandiganbayan
and other courts.[63] This is a direct encroachment on judicial
powers, particularly in regard to criminal jurisdiction. Well-settled
is the doctrine that once a case has been filed before a court of
competent jurisdiction, the matter of its dismissal or pursuance lies
within the full discretion and control of the judge. In a criminal
case, the manner in which the prosecution is handled, including the
matter of whom to present as witnesses, may lie within the sound
discretion of the government prosecutor;[64] but the court decides,
based on the evidence proffered, in what manner it will dispose of
the case. Jurisdiction, once acquired by the trial court, is not lost

despite a resolution, even by the justice secretary, to withdraw the

information or to dismiss the complaint.[65] The prosecutions
motion to withdraw or to dismiss is not the least binding upon the
court. On the contrary, decisional rules require the trial court to
make its own evaluation of the merits of the case, because granting
such motion is equivalent to effecting a disposition of the case
itself.[66]

directly or indirectly involved in the recovery of the alleged illgotten wealth of the Marcoses and their associates
are DIRECTED to disclose to the public the terms of any proposed
compromise settlement, as well as the final agreement, relating to
such alleged ill-gotten wealth, in accordance with the discussions
embodied in this Decision. No pronouncement as to costs.

Thus, the PCGG, as the government prosecutor of illgotten wealth cases, cannot guarantee the dismissal of all
such criminal cases against the Marcoses pending in the
courts, for said dismissal is not within its sole power and
discretion.

Melo, and Quisumbing

Fourth, the government also waives all claims and

counterclaims, whether past, present, or future, matured or
inchoate, against the Marcoses.[67] Again, this all-encompassing
stipulation is contrary to law. Under the Civil Code, an action for
future fraud may not be waived.[68] The stipulation in the
Agreement does not specify the exact scope of future claims against
the Marcoses that the government thereby relinquishes. Such
vague and broad statement may well be interpreted to include all
future illegal acts of any of the Marcos heirs, practically giving
them a license to perpetrate fraud against the government without
any liability at all. This is a palpable violation of the due process
and equal protection guarantees of the Constitution. It effectively
ensconces the Marcoses beyond the reach of the law. It also sets a
dangerous precedent for public accountability. It is a virtual
warrant for public officials to amass public funds illegally,
since there is an open option to compromise their liability
in exchange for only a portion of their ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or
determinable period within which the parties shall fulfill their
respective prestations. It may take a lifetime before the Marcoses
submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the
standards for determining which assets shall be forfeited by the
government and which shall be retained by the Marcoses. While
the Supplemental Agreement provides that the Marcoses shall be
entitled to 25 per cent of the $356 million Swiss deposits (less
government recovery expenses), such sharing arrangement pertains
only to the said deposits. No similar splitting scheme is defined
with respect to the other properties. Neither is there, anywhere in
the Agreements, a statement of the basis for the 25-75 percent
sharing ratio. Public officers entering into an arrangement
appearing to be manifestly and grossly disadvantageous to the
government, in violation of the Anti-Graft and Corrupt Practices
Act,[69] invite their indictment for corruption under the said law.
Finally, the absence of then President Ramos approval of
principal Agreement, an express condition therein, renders
compromise incomplete and unenforceable. Nevertheless,
detailed above, even if such approval were obtained,
Agreements would still not be valid.

the
the
as
the

From the foregoing disquisition, it is crystal clear to

the Court that the General and Supplemental Agreements,
both dated December 28, 1993, which the PCGG entered into
with the Marcos heirs, are violative of the Constitution and
the laws aforementioned.
WHEREFORE, the petition is GRANTED. The General and
Supplemental Agreements dated December 28, 1993, which PCGG
and the Marcos heirs entered into are hereby declared NULL AND
VOID for being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials
who
are
or
may
be

SO ORDERED.
Davide
Jr.
C.J.
(Chairman),
JJ., concur.
Vitug, J., please see separate opinion.

Petition, p. 3; rollo, p. 4.
Annexed to the Petition were the following news articles:
1. Estrella Torres, $2-B FM Hoard Found, Today, September 25, 1997, p.1.
2. Govt Working Out Secret Deal on Marcos Gold, The Manila
Times, September 25, 1997, p.1.
3. Estrella Torres, FVR Man Has FM Money, Today, September 27, 1997,
p.1.
4. Donna Cueto and Cathy Caares, Swiss, RP Execs Plotted Gold
Sale, Philippine Daily Inquirer, September 28, 1997.
5. Jocelyn Montemayor, Coded Swiss Accounts Traced to
Palace
Boys? The Manila Times, September 29, 1997.
[3] 7, Art. III, 1987 Constitution.
[4] 28, Art. II, ibid.
[5] The solicitor generals Manifestation, dated August 11, 1998.
[6] Rollo, pp. 213-216.
[7] It appears that Ferdinand R. Marcos Jr. did not sign the General
Agreement.
[8] Rollo, pp. 217-218.
[9] It appears that Ferdinand R. Marcos Jr. did not sign the Supplemental
Agreement either.
[10] Rollo, pp. 159-160.
[11] Resolution dated March 16, 1998, pp. 1-2; ibid., pp. 147-148.
[12] Rollo, pp. 396-403.
[13] This case was deemed submitted for resolution on September 28, 1998,
when the Court received the solicitor generals Comment on the Motion and
Petition for Intervention.
[14] Citing Legaspi v. Civil Service Commission, 150 SCRA 530, 536, May 29,
1987.
[15] Such as Avelino v. Cuenco, 83 Phil 17 (1949); Basco v. PAGCOR, 197
SCRA 52, May 14, 1991; Kapatiran ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan, 163 SCRA 371, June 30, 1988.
[16] Joaquin G. Bernas, SJ, The Constitution of the Republic of the
Philippines: A Commentary, 1996 ed., p. 334.
[17] 136 SCRA 27, 36-37, April 24, 1985, per Escolin, J.
[18] Quoting from Severino v. Governor General, 16 Phil 366, 378 (1910).
[19] Section 6. The right of the people to information on matters of public
concern shall be recognized, access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions shall be afforded
the citizens subject to such limitation as may be provided by law.
[20] Supra, per Cortes, J.
[21] Also in Gonzales v. Chavez, 205 SCRA 816, 847, February 4, 1992. Cf.
Oposa v. Factoran, 224 SCRA 792, July 30, 1993.
[22] 175 SCRA 264, 273, July 11, 1989, per Paras, J.
[23] See also Valmonte v. Belmonte Jr., 170 SCRA 256, February 13, 1989.
[24] IV RECORD OF THE CONSTITUTIONAL COMMISSION 921-922, 931
(1986) [hereafter, RECORD]; Almonte v. Vasquez, 244 SCRA 286, 295,
297, May 23, 1995.
[25] Almonte, ibid.
[26] V RECORD 25.
[27] RA No. 8293, approved on June 6, 1997.
[28] RA No. 1405, as amended.
[29] V RECORD 25. See also Vol. I, p. 709.
[30] 66 Am Jur 27, Records and Recording Laws.
[31] RA No. 6713, enacted on February 20, 1989.
[32] 7 (c), ibid.
[33] Legaspi, supra.
[34] Supra, p. 266.
[35] Supra, p. 541. Also quoted in Valmonte v. Belmonte Jr., supra.
[36] 203 SCRA 515, 522-23, November 13, 1991.
[1]
[2]

 5(b) & 8, RA No. 6713.

66 Am Jur 19, Records and Recording Laws, citing MacEwan v. Holm,
266 Or 27, 359 P2d 413, 85 ALR2d 1086.
[39] See Legaspi, supra, p. 540.
[40] 16A Am Jur 2d 315-317, 497.
[41] 1 (d), Art. II of Proclamation No. 3 (known as the Provisional or
Freedom Constitution), promulgated on March 25, 1986.
[42] Republic v. Provident International Resources Corp., 269 SCRA 316, 325,
March 7, 1997; Republic v. Palanca, 182 SCRA 911, 918, February 28, 1990;
Republic v. Lobregat et al., 376 SCRA 388, January 23, 1995.
[43] V RECORD 25 (1986).
[44] 66 Am Jur 2d 39.
[45] Art. 2035, Civil Code; Republic v. Sandiganbayan, Benedict, et al., 226
SCRA 314, 327, September 10, 1993.
[46] Art. 2028 in rel. to Art. 1306, Civil Code; Republic v. Benedicto, ibid.,
citing First Philippine Holdings Corp. v. Sandiganbayan, 202 SCRA 212,
September 30, 1991; Heirs of Gabriel Capili v. Court of Appeals, 234 SCRA
110, 115, July 14, 1994.
[47] Sanchez v. Court of Appeals, GR No. 108947, September 29, 1997.
[48] Art. 2038 in rel. to Art. 1330, Civil Code; Domingo v. Court of Appeals,
255 SCRA 189, 199-200, March 20, 1996; Unicane Workers Union, CLUP v.
NLRC, 261 SCRA 573, September 9, 1996; Del Rosario v. Madayag, 247
SCRA 767, 770, August 28, 1995.
[49] Domingo v. Court of Appeals, supra; Del Rosario v. Madayag, supra;
Osmea v. Commission on Audit, 238 SCRA 463, 471, November 29, 1994.
[50] Art. 2029, Civil Code.
[51] Art. 2031, ibid.
[52] 173 SCRA 72, 84, May 4, 1989.
[53] 207 SCRA 659, 667, March 31, 1992.
[54] Supra, pp. 319 & 324.
[55] Art. 2034, Civil Code.
[56] Republic & Campos Jr. v. Sandiganbayan, supra, p. 83.
[57] General Agreement, par. 8.
[58] Mactan Cebu International Airport Authority v. Marcos, 261 SCRA 667,
September 11, 1996.
[59] 28 (1), Art. VI, Constitution. Commissioner of Internal Revenue v.
Court of Appeals, 261 SCRA 236, August 29, 1996; Tolentino v. Secretary of
Finance, 249 SCRA 628, October 30, 1995; Kapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371, 383, June 30, 1988,
citing City of Baguio v. De Leon, 134 Phil. 912, 919-920 (1968).
[60] 204 (1), National Internal Revenue Code, as amended by 3, RA 7646.
[61] 204 (2), NIRC.
[62] Par. 2, ibid.
[63] General Agreement, par. 8.
[64] People v. Nazareno, 260 SCRA 256, August 1, 1996; People v. Porras, 255
SCRA 514, March 29, 1996.
[65] Ledesma v. Court of Appeals, GR No. 113216, September 5, 1997, pp. 2122.
[66] Ibid., p. 23, citing Crespo v. Mogul, 151 SCRA 462, June 30, 1987;
Marcelo v. Court of Appeals, 235 SCRA 39, August 4, 1994; Martinez v.
Court of Appeals, 237 SCRA 575, October 13, 1994; and Roberts Jr. v. Court
of Appeals, 254 SCRA 307, March 5, 1996.
[67] Last Whereas clause of the General Agreement.
[68] Art. 1171.
[69] Specifically 3 (g) of RA 3019.
[37]
[38]

G.R. No. 180643

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC
OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE
ON TRADE AND COMMERCE, AND SENATE COMMITTEE
ON NATIONAL DEFENSE AND SECURITY, respondents.

RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres
to the Office of the President. It exists to protect public interest, not
to benefit a particular public official. Its purpose, among others, is
to assure that the nation will receive the benefit of candid, objective
and untrammeled communication and exchange of information
between the President and his/her advisers in the process of
shaping or forming policies and arriving at decisions in the exercise
of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence
is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of
all citizens and more, because it is dictated by public interest and
the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its
power of review and arbitrate a hotly, even acrimoniously, debated
dispute between the Courts co-equal branches of government. In
this task, this Court should neither curb the legitimate powers of
any of the co-equal and coordinate branches of government nor
allow any of them to overstep the boundaries set for it by our
Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and
the respondent Senate Committees assertion of their power to
conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the
light of settled constitutional and legal doctrines, plainly lead to the
conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated
March 25, 2008 (the "Decision"), granting the petition
for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers
and Investigations,1 Trade and Commerce,2 and National Defense
and Security (collectively the "respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent
Committees and testified for about eleven (11) hours on matters
concerning the National Broadband Project (the "NBN Project"), a
project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications
Equipment ("ZTE"). Petitioner disclosed that then Commission on
Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project.
He further narrated that he informed President Gloria Macapagal
Arroyo ("President Arroyo") of the bribery attempt and that she
instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioners discussions relating to
the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on:
(a) whether or not President Arroyo followed up the NBN
Project,4 (b) whether or not she directed him to prioritize it,5 and (c)
whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers
to these three questions by requiring him to appear and testify once
more on November 20, 2007. On November 15, 2007, Executive
Secretary Eduardo R. Ermita wrote to respondent Committees and

requested them to dispense with petitioners testimony on the

ground of executive privilege.7 The letter of Executive Secretary
Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing
questions fall under conversations and correspondence
between the President and public officials which are
considered executive privilege (Almonte v. Vasquez, G.R.
95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of
the President is necessary in the exercise of her executive
and policy decision making process. The expectation of a
President to the confidentiality of her conversations and
correspondences, like the value which we accord deference
for the privacy of all citizens, is the necessity for protection
of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. Disclosure
of conversations of the President will have a chilling effect
on the President, and will hamper her in the effective
discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is
that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the
Peoples Republic of China. Given the confidential nature
in which these information were conveyed to the President,
he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the
privilege is designed to protect.
In light of the above considerations, this Office is
constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated
on the subject in an unprecedented 11-hour hearing,
wherein he has answered all questions propounded to him
except the foregoing questions involving executive
privilege, we therefore request that his testimony on 20
November 2007 on the ZTE / NBN project be dispensed
with.
On November 20, 2007, petitioner did not appear before respondent
Committees upon orders of the President invoking executive
privilege. On November 22, 2007, the respondent Committees
issued the show-cause letter requiring him to explain why he
should not be cited in contempt. On November 29, 2007, in
petitioners reply to respondent Committees, he manifested that it
was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be
covered by executive privilege. He also manifested his willingness
to appear and testify should there be new matters to be taken up.
He just requested that he be furnished "in advance as to what else"
he "needs to clarify."
Respondent
Committees
found
petitioners
explanations
unsatisfactory. Without responding to his request for advance
notice of the matters that he should still clarify, they issued the
Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 &
144; and privilege speeches of Senator Lacson and Santiago (all on
the ZTE-NBN Project), citing petitioner in contempt of respondent
Committees and ordering his arrest and detention at the Office of

the Senate Sergeant-at-Arms until such time that he would appear

and give his testimony.
On the same date, petitioner moved for the reconsideration of the
above Order.8 He insisted that he had not shown "any contemptible
conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, but respondent Committees
did not respond to his request for advance notice of questions. He
also mentioned the petition for certiorari he previously filed with
this Court on December 7, 2007. According to him, this should
restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his
arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with
Urgent Application for TRO/Preliminary Injunction) on February 1,
2008. In the Courts Resolution dated February 4, 2008, the parties
were required to observe the status quo prevailing prior to the
Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on
two grounds: first, the communications elicited by the three (3)
questions were covered by executive privilege; and second,
respondent Committees committed grave abuse of discretion in
issuing the contempt order. Anent the first ground, we considered
the subject communications as falling under the presidential
communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they
were received by a close advisor of the President, and (c)
respondent Committees failed to adequately show a compelling
need that would justify the limitation of the privilege and the
unavailability of the information elsewhere by an appropriate
investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in
issuing the contempt order because (a) there was a valid claim of
executive privilege, (b) their invitations to petitioner did not
contain the questions relevant to the inquiry, (c) there was a cloud
of doubt as to the regularity of the proceeding that led to their
issuance of the contempt order, (d) they violated Section 21, Article
VI of the Constitution because their inquiry was not in accordance
with the "duly published rules of procedure," and (e) they issued
the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion
for reconsideration, anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURTS
DECISION, THERE IS NO DOUBT THAT THE
ASSAILED
ORDERS
WERE
ISSUED
BY
RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND
NOT MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS
DECISION, THERE CAN BE NO PRESUMPTION
THAT THE INFORMATION WITHHELD IN THE
INSTANT CASE IS PRIVILEGED.
III

CONTRARY TO THIS HONORABLE COURTS

DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS
ELICITED
BY
THE
SUBJECT
THREE
(3)
QUESTIONS ARE COVERED BY EXECUTIVE
PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS
FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED
CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS
HONORABLE COURT IN THE DECISION IS
APPLIED, THERE IS NO SHOWING THAT THE
ELEMENTS
OF
PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE
SHOWING OF A COMPELLING NEED TO JUSTIFY
THE DISCLOSURE OF THE INFORMATION
SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE
PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY
IMPAIR
THE
RESPONDENTS
PERFORMANCE OF THEIR PRIMARY FUNCTION
TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF
THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL
POLICIES
ON
PUBLIC
ACCOUNTABILITY
AND
TRANSPARENCY
OUTWEIGH
THE
CLAIM
OF
EXECUTIVE
PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS
DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING THE
ASSAILED CONTEMPT ORDER, CONSIDERING
THAT:
A. THERE IS NO LEGITIMATE CLAIM OF
EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT
SUPPOSED
REQUIREMENTS
INSENATE V. ERMITA.

VIOLATE THE
LAID
DOWN

C. RESPONDENTS DULY ISSUED THE CONTEMPT

ORDER IN ACCORDANCE WITH THEIR INTERNAL
RULES.
D. RESPONDENTS DID NOT VIOLATE THE
REQUIREMENTS UNDER ARTICLE VI, SECTION 21
OF THE CONSTITUTION REQUIRING THAT ITS
RULES OF PROCEDURE BE DULY PUBLISHED,
AND WERE DENIED DUE PROCESS WHEN THE
COURT CONSIDERED THE OSGS INTERVENTION
ON THIS ISSUE WITHOUT GIVING RESPONDENTS
THE OPPORTUNITY TO COMMENT.

E. RESPONDENTS ISSUANCE OF THE CONTEMPT

ORDER IS NOT ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with
exaggerating and distorting the Decision of this Court. He avers
that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional
questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did
not reverse the presumption against executive secrecy laid down
in Senate v. Ermita; second, respondent Committees failed to
overcome the presumption of executive privilege because it appears
that they could legislate even without the communications elicited
by the three (3) questions, and they admitted that they could
dispense with petitioners testimony if certain NEDA documents
would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic
secrets, not to the necessarily broad and all-encompassing
presidential communications privilege; fourth, there is no right to
pry into the Presidents thought processes or exploratory
exchanges; fifth, petitioner is not covering up or hiding anything
illegal; sixth, the Court has the power and duty to annul the
Senate Rules; seventh, the Senate is not a continuing body, thus
the failure of the present Senate to publish its Rules of Procedure
Governing Inquiries in Aid of Legislation (Rules) has a vitiating
effect on them; eighth, the requirement for a witness to be
furnished advance copy of questions comports with due process and
the constitutional mandate that the rights of witnesses be
respected; and ninth, neither petitioner nor respondent has the
final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1)
there is no categorical pronouncement from the Court that the
assailed Orders were issued by respondent Committees pursuant to
their oversight function; hence, there is no reason for them "to
make much" of the distinction between Sections 21 and 22, Article
VI of the Constitution; (2) presidential communications enjoy a
presumptive privilege against disclosure as earlier held in Almonte
v. Vasquez9 and Chavez v. Public Estates Authority(PEA)10; (3) the
communications elicited by the three (3) questions are covered by
executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is
fatally defective under existing law and jurisprudence; (5) the
failure of the present Senate to publish its Rules renders the same
void; and (6) respondent Committees arbitrarily issued the
contempt order.
Incidentally, respondent Committees objection to the Resolution
dated March 18, 2008 (granting the Office of the Solicitor Generals
Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this
case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions
of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive
presidential communications privilege in our legal system;
(2) whether or not there is factual or legal basis to hold
that the communications elicited by the three (3) questions
are covered by executive privilege;

(3) whether or not respondent Committees have shown

that the communications elicited by the three (3) questions
are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed
grave abuse of discretion in issuing the contempt order.
We shall discuss these issues seriatim.
I
There
Is
a
Recognized
Presidential Communications Privilege

Presumptive

Respondent Committees ardently argue that the Courts

declaration that presidential communications are presumptively
privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in
favor of disclosure." Respondent Committees then claim that the
Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the
presumption in favor of the presidential communications
privilege is mentioned and adopted in our legal system. That is far
from the truth. The Court, in the earlier case of Almonte v.
Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita,13 the case relied upon by
respondent Committees, reiterated this concept. There, the Court
enumerated the cases in which the claim of executive privilege was
recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the
public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the
right to information does not extend to matters recognized
as privileged information under the separation of powers,
by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet
meetings."18
Respondent Committees observation that this Courts Decision
reversed the "presumption that inclines heavily against executive
secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held
that in order to arrive at the true intent and meaning of a decision,
no specific portion thereof should be isolated and resorted to, but
the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the
circumstances obtaining in Senate v. Ermita, which declared void
Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of
2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisprudence, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts,
or the public, is recognized only in relation to certain types
of information of a sensitive character. While executive
privilege is a constitutional concept, a claimthereof may

be valid or not depending on the ground invoked to justify

it and the context in which it is made. Noticeably absent is
any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption
inclines heavily againstexecutive secrecy and in
favor of disclosure. (Emphasis and underscoring
supplied)
Obviously, the last sentence of the above-quoted paragraph in
Senate v. Ermita refers to the "exemption" being claimed by the
executive officials mentioned in Section 2(b) of E.O. No. 464, solely
by virtue of their positions in the Executive Branch. This means
that when an executive official, who is one of those mentioned in
the said Sec. 2(b) of E.O. No. 464, claims to be exempt from
disclosure, there can be no presumption of authorization to
invoke executive privilege given by the President to said
executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling
in this wise:
Section 2(b) in relation to Section 3 virtually provides that,
once the head of office determines that a certain
information is privileged, such determination is presumed
to bear the Presidents authority and has the effect of
prohibiting the official from appearing before Congress,
subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to
the exceptional nature of the privilege. Executive privilege,
as already discussed, is recognized with respect to
information the confidential nature of which is crucial to
the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption
from disclosure is necessary to the discharge ofhighly
important executive responsibilities. The doctrine of
executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be
kept confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress,
the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a
particular case.
In light of this highly exceptional nature of the privilege,
the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her
behalf, in which case the Executive Secretary must state
that the authority is "By order of the President", which
means that he personally consulted with her. The privilege
being an extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates
to exercise such power. There is even less reason to uphold
such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to

invoke executive privilege granted by the President to executive
officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive
Secretary Ermita, who invoked executive privilege on a specific
matter involving an executive agreement between the Philippines
and China, which was the subject of the three (3) questions
propounded to petitioner Neri in the course of the Senate
Committees investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v. Ermita.

Senate v. Ermita22 expounds on the constitutional underpinning of

the relationship between the Executive Department and the
Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive
privilege by the Presidents subordinate officials, as follows:
When Congress exercises its power of inquiry, the
only way for department heads to exempt
themselves therefrom is by a valid claim of privilege.
They are not exempt by the mere fact that they are
department heads. Only one executive official may be
exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is
based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch
of governments which is sanctioned by a long-standing
custom. (Underscoring supplied)

Moreover, contrary to the claim of respondents, the Decision in this

present case hews closely to the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this
jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American
origin, it is best understood in light of how it has been
defined and used in the legal literature of the United
States.
Schwart defines executive privilege as "the power of the
Government to withhold information from the
public, the courts, and the Congress. Similarly, Rozell
defines it as "the right of the President and high-level
executive branch officers to withhold information from
Congress, the courts, and ultimately the public." x x x In
this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte
used the term in reference to the same privilege subject of
Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege:
"The expectation of a President to the confidentiality of
his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord
deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest
in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a
way many would be unwilling to express except
privately. These are the considerations justifying a
presumptive
privilege
for
Presidential
communications. The privilege is fundamental to
the operation of government and inextricably rooted
in the separation of powers under the Constitution x
x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive
privilege for Presidential communication," which was recognized
early on in Almonte v. Vasquez. To construe the passage inSenate v.
Ermita adverted to in the Motion for Reconsideration of respondent
Committees, referring to the non-existence of a "presumptive
authorization" of an executive official, to mean that the
"presumption" in favor of executive privilege "inclines heavily
against executive secrecy and in favor of disclosure" is to distort the
ruling in the Senate v. Ermita and make the same engage in selfcontradiction.

Thus, if what is involved is the presumptive privilege of

presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given
preference or priority, in the absence of proof of a compelling or
critical need for disclosure by the one assailing such presumption.
Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive
privilege. In fact, Senate v. Ermita reiterates jurisprudence citing
"the considerations justifying a presumptive privilege for
Presidential communications."23
II
There
Are
Factual
and
Legal
Bases
Hold
that
the
Communications
Elicited
by
Three (3) Questions Are Covered by Executive Privilege

to
the

Respondent Committees claim that the communications elicited by

the three (3) questions are not covered by executive privilege
because the elements of the presidential communications
privilegeare not present.
A. The power to enter into an executive agreement is a
"quintessential and non-delegable presidential power."
First, respondent Committees contend that the power to secure a
foreign loan does not relate to a "quintessential and non-delegable
presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required
to give its prior concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity
does not make such power less executive. "Quintessential" is
defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "nondelegable" means that a power or duty cannot be delegated to
another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter
into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine
jurisprudence.26 Now, the fact that the President has to secure the

prior concurrence of the Monetary Board, which shall submit to

Congress a complete report of its decision before contracting or
guaranteeing foreign loans, does not diminish the executive nature
of the power.
The inviolate doctrine of separation of powers among the
legislative, executive and judicial branches of government by no
means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by the
sovereign people. There is the corollary doctrine of checks and
balances, which has been carefully calibrated by the Constitution to
temper the official acts of each of these three branches. Thus, by
analogy, the fact that certain legislative acts require action from
the President for their validity does not render such acts less
legislative in nature. A good example is the power to pass a law.
Article VI, Section 27 of the Constitution mandates that every bill
passed by Congress shall, before it becomes a law, be presented to
the President who shall approve or veto the same. The fact that the
approval or vetoing of the bill is lodged with the President does not
render the power to pass law executive in nature. This is because
the power to pass law is generally a quintessential and nondelegable power of the Legislature. In the same vein, the executive
power to enter or not to enter into a contract to secure foreign loans
does not become less executive in nature because of conditions laid
down in the Constitution. The final decision in the exercise of the
said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down
precisely to limit the scope of the presidential
communications privilege but, in any case, it is not
conclusive.
Second, respondent Committees also seek reconsideration of the
application of the "doctrine of operational proximity" for the reason
that "it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who
are operationally proximate to the President but who may have
"no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was
laid down in In re: Sealed Case27precisely to limit the scope of the
presidential communications privilege. The U.S. court was aware of
the dangers that a limitless extension of the privilege risks and,
therefore, carefully cabined its reach by explicitly confining it to
White House staff, and not to staffs of the agencies, and then only
to White House staff that has "operational proximity" to direct
presidential decision-making, thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the privilege,
could pose a significant risk of expanding to a large swath
of the executive branch a privilege that is bottomed on a
recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege
should be construed as narrowly as is consistent with
ensuring that the confidentiality of the Presidents
decision-making process is adequately protected. Not
every person who plays a role in the development of
presidential advice, no matter how remote and
removed from the President, can qualify for the
privilege. In particular, the privilege should not
extend to staff outside the White House in executive
branch agencies. Instead, the privilege should apply only
to communications authored or solicited and received by
those members of an immediate White House advisors

staff who have broad and significant responsibility for

investigation and formulating the advice to be given the
President on the particular matter to which the
communications relate. Only communications at that
level are close enough to the President to be
revelatory of his deliberations or to pose a risk to
the candor of his advisers. See AAPS, 997 F.2d at 910
(it is "operational proximity" to the President that
matters in determining whether "[t]he Presidents
confidentiality interests" is implicated). (Emphasis
supplied)
In the case at bar, the danger of expanding the privilege "to a large
swath of the executive branch" (a fear apparently entertained by
respondents) is absent because the official involved here is a
member of the Cabinet, thus, properly within the term "advisor" of
the President; in fact, her alter ego and a member of her official
family. Nevertheless, in circumstances in which the official involved
is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v.
Department of Justice.28 This goes to show that the operational
proximity test used in the Decision is not considered conclusive in
every case. In determining which test to use, the main
consideration is to limit the availability of executive privilege only
to officials who stand proximate to the President, not only by
reason of their function, but also by reason of their positions in the
Executives organizational structure. Thus, respondent Committees
fear that the scope of the privilege would be unnecessarily
expanded with the use of the operational proximity test is
unfounded.
C. The Presidents claim of executive privilege is not merely
based on a generalized interest; and in balancing respondent
Committees and the Presidents clashing interests, the Court
did not disregard the 1987 Constitutional provisions on
government transparency, accountability and disclosure of
information.
Third, respondent Committees claim that the Court erred in
upholding the Presidents invocation, through the Executive
Secretary, of executive privilege because (a) between respondent
Committees specific and demonstrated need and the Presidents
generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest,
the Court disregarded the provisions of the 1987 Philippine
Constitution on government transparency, accountability and
disclosure of information, specifically, Article III, Section
7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article
XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections
9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege
is not merely founded on her generalized interest in confidentiality.
The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation
to diplomatic and economic relations with another
sovereign nation as the bases for the claim. Thus, the Letter
stated:
The context in which executive privilege is being
invoked is that the information sought to be
disclosed might impair our diplomatic as well as
economic relations with the Peoples Republic of
China. Given the confidential nature in which this
information were conveyed to the President, he cannot

provide the Committee any further details of these

conversations, without disclosing the very thing the
privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not
require the Executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a
coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the
Presidents communication with her advisor. The NBN Project
involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of the
Philippines and China. Whatever the President says about the
agreement - particularly while official negotiations are ongoing are matters which China will surely view with particular interest.
There is danger in such kind of exposure. It could adversely affect
our diplomatic as well as economic relations with the Peoples
Republic of China. We reiterate the importance of secrecy in
matters involving foreign negotiations as stated in United States v.
Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and
their success must often depend on secrecy, and even when
brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may
have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on
future negotiations or produce immediate inconveniences,
perhaps danger and mischief, in relation to other powers.
The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a
small number of members. To admit, then, a right in the
House of Representatives to demand and to have as a
matter of course all the papers respecting a negotiation
with a foreign power would be to establish a dangerous
precedent.
US jurisprudence clearly guards against the dangers of allowing
Congress access to all papers relating to a negotiation with a
foreign power. In this jurisdiction, the recent case of Akbayan
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the
privileged character of diplomatic negotiations. InAkbayan, the
Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has
been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court
in Chavez v. PCGG held that "information on intergovernment exchanges prior to the conclusion of treaties
and executive agreements may be subject to reasonable
safeguards for the sake of national interest." Even earlier,
the same privilege was upheld in Peoples Movement for
Press Freedom (PMPF) v. Manglapus wherein the Court
discussed the reasons for the privilege in more precise
terms.
In PMPF v. Manglapus, the therein petitioners were
seeking information from the Presidents representatives

on the state of the then on-going negotiations of the RP-US

Military Bases Agreement. The Court denied the petition,
stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional
provisions of freedom of speech or of the press norof the
freedom of access to information." The Resolution
went on to state, thus:
The
nature
of
diplomacy
requires
centralization of authority and expedition of
decision which are inherent in executive
action. Another essential characteristic of
diplomacy is its confidential nature. Although
much has been said about "open" and "secret"
diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have
clearly analyzed and justified the practice. In the
words of Mr. Stimson:
"A complicated negotiation cannot
be carried through without many,
many private talks and discussion,
man
to
man;
many
tentative
suggestions and proposals. Delegates
from other countries come and tell
you in confidence of their troubles at
home and of their differences with
other countries and with other
delegates; they tell you of what they
would
do
under
certain
circumstances and would not do
under other circumstances If these
reports should become public
who would ever trust American
Delegations
in
another
conference? (United States Department
of State, Press Releases, June 7, 1930, pp.
282-284)
xxxx
There is frequent criticism of the secrecy in
which negotiation with foreign powers on
nearly all subjects is concerned. This, it is
claimed, is incompatible with the substance
of democracy. As expressed by one writer, "It
can be said that there is no more rigid system of
silence anywhere in the world." (E.J. Young,
Looking Behind the Censorship, J. B. Lipincott
Co., 1938) President Wilson in starting his efforts
for the conclusion of the World War declared that
we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
No one who has studied the question believes that
such a method of publicity is possible. In the
moment that negotiations are started,
pressure groups attempt to "muscle in." An
ill-timed speech by one of the parties or a
frank declaration of the concession which
are exacted or offered on both sides would
quickly lead to a widespread propaganda to
block the negotiations. After a treaty has
been drafted and its terms are fully
published, there is ample opportunity for

discussion before it is approved.(The New

American Government and Its Works, James T.
Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the
doctrine in U.S. v. Curtiss-Wright Export Corp.that the
President is the sole organ of the nation in its negotiations
with foreign countries,viz:
"x x x In this vast external realm, with its
important, complicated, delicate and manifold
problems, the President alone has the power to
speak or listen as a representative of the nation.
He makes treaties with the advice and consent of
the Senate; but he alone negotiates. Into the field
of negotiation the Senate cannot intrude; and
Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7,
1800, in the House of Representatives, "The
President is the sole organ of the nation in
its
external
relations,
and
its
sole
representative with foreign nations." Annals,
6th Cong., col. 613 (Emphasis supplied;
underscoring in the original)
Considering that the information sought through the three (3)
questions subject of this Petition involves the Presidents dealings
with a foreign nation, with more reason, this Court is wary of
approving the view that Congress may peremptorily inquire into
not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the
pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee
unwanted consequences of subjecting a Chief Executive to
unrestricted congressional inquiries done with increased frequency
and great publicity. No Executive can effectively discharge
constitutional functions in the face of intense and unchecked
legislative incursion into the core of the Presidents decisionmaking process, which inevitably would involve her conversations
with a member of her Cabinet.
With respect to respondent Committees invocation of constitutional
prescriptions regarding the right of the people to information and
public accountability and transparency, the Court finds nothing in
these arguments to support respondent Committees case.
There is no debate as to the importance of the constitutional right
of the people to information and the constitutional policies on public
accountability and transparency. These are the twin postulates
vital to the effective functioning of a democratic government. The
citizenry can become prey to the whims and caprices of those to
whom the power has been delegated if they are denied access to
information. And the policies on public accountability and
democratic government would certainly be mere empty words if
access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with
respect to three (3) specific questions, did not in any way curb the
publics right to information or diminish the importance of public
accountability and transparency.
This Court did not rule that the Senate has no power to investigate
the NBN Project in aid of legislation. There is nothing in the

assailed Decision that prohibits respondent Committees from

inquiring into the NBN Project. They could continue the
investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our
Decision merely excludes from the scope of respondents
investigation the three (3) questions that elicit answers covered by
executive privilege and rules that petitioner cannot be compelled to
appear before respondents to answer the said questions. We have
discussed the reasons why these answers are covered by executive
privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not
an absolute right.
Indeed, the constitutional provisions cited by respondent
Committees do not espouse an absolute right to information. By
their wording, the intention of the Framers to subject such right to
the regulation of the law is unmistakable. The highlighted portions
of the following provisions show the obvious limitations on the right
to information, thus:
Article III, Sec. 7. The right of the people to information
on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen,subject
to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions
involving public interest.(Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it
was stated that there are no specific laws prescribing the exact
limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated
the recognized restrictions to such rights, among them: (1) national
security matters, (2) trade secrets and banking transactions, (3)
criminal matters, and (4) other confidential information. National
security matters include state secrets regarding military and
diplomatic matters, as well as information on inter-government
exchanges prior to the conclusion of treaties and executive
agreements. It was further held that even where there is no
need to protect such state secrets, they must be "examined
in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of
respondent Committees to obtain information allegedly in aid of
legislation, not the peoples right to public information. This is the
reason why we stressed in the assailed Decision the distinction
between these two rights. As laid down in Senate v. Ermita, "the
demand of a citizen for the production of documents pursuant to his
right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress" and "neither does the
right to information grant a citizen the power to exact testimony
from government officials." As pointed out, these rights belong to
Congress, not to the individual citizen. It is worth mentioning at
this juncture that the parties here are respondent Committees and
petitioner Neri and that there was no prior request for information
on the part of any individual citizen. This Court will not be swayed
by attempts to blur the distinctions between the Legislature's right

to information in a legitimate legislative inquiry and the public's

right to information.
For clarity, it must be emphasized that the assailed Decision
did not enjoin respondent Committees from inquiring into
the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
III.
Respondent
Committees
Failed
to
Show
That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote
an unusually lengthy discussion on the purported legislative nature
of their entire inquiry, as opposed to an oversight inquiry.

'the twofold aim (of criminal justice) is that guild shall not
escape or innocence suffer.' Berger v. United States, 295
U.S., at 88, 55 S.Ct., at 633. We have elected to employ an
adversary system of criminal justice in which the parties
contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is
both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments
were to be founded on a partial or speculative
presentation of the facts. The very integrity of the
judicial system and public confidence in the system
depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that
justice is done, it is imperative to the function of
courts that compulsory process be available for the
production of evidence needed either by the prosecution or
by the defense.
xxx xxx xxx

At the outset, it must be clarified that the Decision did not pass
upon the nature of respondent Committees inquiry into the NBN
Project. To reiterate, this Court recognizes respondent Committees
power to investigate the NBN Project in aid of legislation. However,
this Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the
course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by
the expedient of mentioning statutes and/or pending bills to which
their inquiry as a whole may have relevance. The jurisprudential
test laid down by this Court in past decisions on executive privilege
is that the presumption of privilege can only be overturned by a
showing of compelling needfor disclosure of the information
covered by executive privilege.
In the Decision, the majority held that "there is no adequate
showing of a compelling need that would justify the limitation of
the privilege and of the unavailability of the information elsewhere
by an appropriate investigating authority." In the Motion for
Reconsideration, respondent Committees argue that the
information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider
the three (3) pending Senate Bills, and (b) to curb graft and
corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is
subject to balancing against other interests and it is necessary to
resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed
between presidential privilege and the legitimate claims of the
judicial process. In giving more weight to the latter, the Court ruled
that the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal
trial.
The Nixon Court ruled that an absolute and unqualified privilege
would stand in the way of the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in
the Honorable Chief Justice Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light
of our historic commitment to the rule of law. This is
nowhere more profoundly manifest than in our view that

The right to the production of all evidence at a criminal

trial similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in a
criminal trial the right 'to be confronted with the
witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover,
the Fifth Amendment also guarantees that no person
shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to vindicate
those guarantees, and to accomplish that it is essential
that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the
general privilege of confidentiality of Presidential
communications in performance of the President's
responsibilities against the inroads of such a
privilege on the fair administration of criminal
justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that
is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of law
and gravely impair the basic function of the
courts. A President's
acknowledged
need
for
confidentiality in the communications of his office
is general in nature, whereas the constitutional need
for production of relevant evidence in a criminal
proceeding is specific and central to the fair
adjudication of a particular criminal case in the
administration of justice. Without access to specific
facts a criminal prosecution may be totally frustrated.
The President's broad interest in confidentiality of
communication will not be vitiated by disclosure of a
limited number of conversations preliminarily
shown to have some bearing on the pending criminal
cases.
We conclude that when the ground for asserting privilege
as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in
confidentiality,
it cannot
prevail
over
the
fundamental demands of due process of law in the
fair
administration
of
criminal
justice. The

generalized assertion of privilege must yield to

the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a courts need for
facts in order to adjudge liability in a criminal case but rather with
the Senates need for information in relation to its legislative
functions. This leads us to consider once again just how critical is
the subject information in the discharge of respondent Committees
functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which,
according to said respondents, would "aid" them in crafting
legislation.
Senate Select Committee on Presidential Campaign Activities v.
Nixon41 expounded on the nature of a legislative inquiry in aid of
legislation in this wise:
The sufficiency of the Committee's showing of need has
come to depend, therefore, entirely on whether the
subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between
Congress' legislative tasks and the responsibility of a
grand jury, or any institution engaged in like
functions. While
fact-finding
by
a
legislative
committee is undeniably a part of its task,
legislative judgments normally depend more on the
predicted consequences of proposed legislative
actions and their political acceptability, than on
precise reconstruction of past events; Congress
frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of
the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If,
for example, as in Nixon v. Sirica, one of those crimes is
perjury concerning the content of certain conversations,
the grand jury's need for the most precise evidence, the
exact text of oral statements recorded in their original
form, is undeniable.We see no comparable need in the
legislative process, at least not in the circumstances
of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed
materials are necessary to its legislative judgments has
been substantially undermined by subsequent events.
(Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be
equated with the compelling or demonstratively critical and specific
need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of
"pertinency" set in Arnault cannot be lightly applied to the instant
case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the
conflicting claims between the Executive and the Legislative
Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the
Dissenting Opinion of the Honorable Chief Justice Puno, which
states:
A hard look at Senate v. Ermita ought to yield the
conclusion that it bestowed a qualified presumption in

favor of the Presidential communications privilege. As

shown in the previous discussion, U.S. v. Nixon, as well as
the other related Nixon cases Sirica and Senate Select
Committee on Presidential Campaign Activities, et
al., v. Nixon in the D.C. Court of Appeals, as well as
subsequent cases all recognize that there is a
presumptive
privilege
in
favor
of
Presidential
communications. The Almonte case quoted U.S. v.
Nixon and recognized a presumption in favor of
confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the
burden on the respondent Senate Committees to overturn the
presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions
subject of this case, to enable them to craft legislation. Here, there
is simply a generalized assertion that the information is pertinent
to the exercise of the power to legislate and a broad and non-specific
reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said
information sought by the three (3) questions. As correctly pointed
out by the Honorable Justice Dante O. Tinga in his Separate
Concurring Opinion:
If respondents are operating under the premise
that the president and/or her executive officials
have committed wrongdoings that need to be
corrected or prevented from recurring by remedial
legislation, the answer to those three questions will
not necessarily bolster or inhibit respondents from
proceeding with such legislation. They could easily
presume the worst of the president in enacting such
legislation.
For sure, a factual basis for situations covered by bills is not
critically needed before legislatives bodies can come up with
relevant legislation unlike in the adjudication of cases by courts of
law. Interestingly, during the Oral Argument before this Court, the
counsel for respondent Committees impliedly admitted that the
Senate could still come up with legislations even without petitioner
answering the three (3) questions. In other words, the information
being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these
questions to the lawmaking function of the
Senate. For instance, question Number 1 whether
the President followed up the NBN project.
According to the other counsel this question has
already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not
answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the
lawmaking function of the Senate?
ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of
Senator Miriam Santiago, she would like to
indorse a Bill to include Executive Agreements
had been used as a device to the circumventing
the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your
Honor, because if we look at this problem in its
factual setting as counsel for petitioner has
observed, there are intimations of a bribery
scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you
dictated to prioritize this ZTE, is that critical to
the lawmaking function of the Senate? Will it
result to the failure of the Senate to cobble a Bill
without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations
for a proposed amendment to the Procurement
Law, Your Honor, because the petitioner had
already testified that he was offered a P200
Million bribe, so if he was offered a P200 Million
bribe it is possible that other government officials
who had something to do with the approval of the
contract would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the
investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the
President said to go ahead and approve the project
after being told about the alleged bribe. How
critical is that to the lawmaking function of the

Senate? And the question is may they craft a Bill

a remedial law without forcing petitioner Neri to
answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on
mere speculation. And sound legislation requires
that a proposed Bill should have some basis in
fact.42
The failure of the counsel for respondent Committees to pinpoint
the specific need for the information sought or how the withholding
of the information sought will hinder the accomplishment of their
legislative purpose is very evident in the above oral exchanges. Due
to the failure of the respondent Committees to successfully
discharge this burden, the presumption in favor of confidentiality of
presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof
as to whether the disclosure will significantly impair the
Presidents performance of her function. Needless to state this is
assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to
"speculate" regarding the questions covered by the privilege, this
does not evince a compelling need for the information sought.
Indeed,Senate Select Committee on Presidential Campaign
Activities v. Nixon43 held that while fact-finding by a legislative
committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability than on a precise
reconstruction of past events. It added that, normally, Congress
legislates on the basis of conflicting information provided in its
hearings. We cannot subscribe to the respondent Committees selfdefeating proposition that without the answers to the three (3)
questions objected to as privileged, the distinguished members of
the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed
that respondent Committees need for information in the exercise of
this function is not as compelling as in instances when the purpose
of the inquiry is legislative in nature. This is because curbing graft
and corruption is merely an oversight function of Congress. 44 And if
this is the primary objective of respondent Committees in asking
the three (3) questions covered by privilege, it may even contradict
their claim that their purpose is legislative in nature and not
oversight. In any event, whether or not investigating graft and
corruption is a legislative or oversight function of Congress,
respondent Committees investigation cannot transgress bounds set
by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court
ruled:
The "allocation of constitutional boundaries" is a
task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "the
political question doctrine neither interposes an obstacle to
judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the
1987 Constitution, although said provision by no means
does away with the applicability of the principle in
appropriate cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated

inquiry by respondent Committee is not really in aid of legislation
because it is not related to a purpose within the jurisdiction
of Congress, since the aim of the investigation is to find out
whether or not the relatives of the President or Mr. Ricardo
Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft
and Corrupt Practices Act, a matter that appears more
within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to
trace the alleged bribery to the Office of the President.48 While it
may be a worthy endeavor to investigate the potential culpability of
high government officials, including the President, in a given
government transaction, it is simply not a task for the Senate to
perform. The role of the Legislature is to make laws, not to
determine anyones guilt of a crime or wrongdoing. Our
Constitution has not bestowed upon the Legislature the latter role.
Just as the Judiciary cannot legislate, neither can the Legislature
adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry
in aid of legislation and a "search for truth," which in respondent
Committees view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are,
they cannot assume the power reposed upon our prosecutorial
bodies and courts. The determination of who is/are liable for a
crime or illegal activity, the investigation of the role played by each
official, the determination of who should be haled to court for
prosecution and the task of coming up with conclusions and finding
of facts regarding anomalies, especially the determination of
criminal guilt, are not functions of the Senate. Congress is neither a
law enforcement nor a trial agency. Moreover, it bears stressing
that no inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress, i.e. legislation.
Investigations conducted solely to gather incriminatory evidence
and "punish" those investigated are indefensible. There is no
Congressional power to expose for the sake of exposure. 49 In this
regard, the pronouncement in Barenblatt v. United States50 is
instructive, thus:
Broad as it is, the power is not, however, without
limitations. Since Congress may only investigate into the
areas in which it may potentially legislate or appropriate,
it cannot inquire into matters which are within the
exclusive province of one of the other branches of the
government. Lacking the judicial power given to the
Judiciary, it cannot inquire into matters that are
exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the
Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to
the NBN Project have already been filed against President Arroyo
and other personalities before the Office of the Ombudsman. Under
our Constitution, it is the Ombudsman who has the duty "to
investigate any act or omission of any public official,
employee, office or agency when such act or omission
appears to be illegal, unjust, improper, or inefficient."51 The
Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or
not the allegations of anomaly are true and who are liable therefor.
The same holds true for our courts upon which the Constitution

reposes the duty to determine criminal guilt with finality. Indeed,

the rules of procedure in the Office of the Ombudsman and the
courts are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses
alike, are protected and safeguarded.
Should respondent Committees uncover information related to a
possible crime in the course of their investigation, they have the
constitutional duty to refer the matter to the appropriate agency or
branch of government. Thus, the Legislatures need for information
in an investigation of graft and corruption cannot be deemed
compelling enough to pierce the confidentiality of information
validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without
the information covered by the three (3) questions subject of the
petition.
Corollarily, respondent Committees justify their rejection of
petitioners claim of executive privilege on the ground that there is
no privilege when the information sought might involve a crime or
illegal activity,despite the absence of an administrative or
judicial determination to that effect. Significantly, however,
in Nixon v. Sirica,52 the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and
appropriateness of the function in the performance of
which the material was sought, and the degree to which the
material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on
Presidential Campaign Activities v. Nixon does not apply to the case
at bar because, unlike in the said case, no impeachment proceeding
has been initiated at present. The Court is not persuaded. While it
is true that no impeachment proceeding has been initiated,
however, complaints relating to the NBN Project have already been
filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the
prosecutorial and judicial arms of government are the bodies
equipped and mandated by the Constitution and our laws to
determine whether or not the allegations of anomaly in the NBN
Project are true and, if so, who should be prosecuted and penalized
for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to
the exacting standards of evidence essential to arrive at accurate
factual findings to which to apply the law. Hence, Section 10 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provides that "technical rules of evidence applicable to judicial
proceedings which do not affect substantive rights need not be
observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a
hearsay answer, to name a few, do not apply to a legislative
inquiry. Every person, from the highest public official to the most
ordinary citizen, has the right to be presumed innocent until proven
guilty in proper proceedings by a competent court or body.
IV
Respondent
Committees
Committed
Abuse of Discretion in Issuing the Contempt Order

Grave

Respondent Committees insist that they did not commit grave

abuse of discretion in issuing the contempt order because (1) there

is no legitimate claim of executive privilege; (2) they did not violate

the requirements laid down in Senate v. Ermita; (3) they issued the
contempt order in accordance with their internal Rules; (4) they did
not violate the requirement under Article VI, Section 21 of the
Constitution requiring the publication of their Rules; and (5) their
issuance of the contempt order is not arbitrary or precipitate.

reasons to investigate pro forma does no more than

imposes minimal drafting burdens. Rather, the
system must be designed in a manner that imposes
actual burdens on the committee to articulate its
need for investigation and allows for meaningful
debate about the merits of proceeding with the
investigation. (Emphasis supplied)

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully
discussed in the preceding pages, we see no reason to discuss it
once again.
Respondent Committees second argument rests on the view that
the ruling in Senate v. Ermita, requiring invitations or subpoenas
to contain the "possible needed statute which prompted the need for
the inquiry" along with the "usual indication of the subject of
inquiry and the questions relative to and in furtherance thereof" is
not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of
compliance with these requirements.
An unconstrained congressional investigative power, like an
unchecked Executive, generates its own abuses. Consequently,
claims that the investigative power of Congress has been abused (or
has the potential for abuse) have been raised many
times.53 Constant exposure to congressional subpoena takes its toll
on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest mechanisms
that would not unduly limit Congress power. The legislative
inquiry must be confined to permissible areas and thus, prevent the
"roving commissions" referred to in the U.S. case,Kilbourn v.
Thompson.54 Likewise, witnesses have their constitutional right to
due process. They should be adequately informed what matters are
to be covered by the inquiry. It will also allow them to prepare the
pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part
of Congress when viewed vis--vis the immensity of its power of
inquiry. The logic of these requirements is well articulated in the
study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the
current system allows committees to continually
investigate the Executive without constraint. One
process solution addressing this concern is to
require each investigation be tied to a clearly stated
purpose. At present, the charters of some congressional
committees are so broad that virtually any matter
involving the Executive can be construed to fall within
their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A
requirement for a more precise charge in order to begin an
inquiry should immediately work to limit the initial scope
of the investigation and should also serve to contain the
investigation once it is instituted. Additionally, to the
extent clear statements of rules cause legislatures to
pause and seriously consider the constitutional
implications of proposed courses of action in other
areas, they would serve that goal in the context of
congressional investigations as well.
The key to this reform is in its details. A system that
allows a standing committee to simply articulate its

Clearly, petitioners request to be furnished an advance copy of

questions is a reasonable demand that should have been granted by
respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November
13, 2007 made no specific reference to any pending Senate bill. It
did not also inform petitioner of the questions to be asked. As it
were, the subpoena merely commanded him to "testify on what he
knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that
their Rules of Procedure Governing Inquiries in Aid of
Legislation (the "Rules") are beyond the reach of this Court. While
it is true that this Court must refrain from reviewing the internal
processes of Congress, as a co-equal branch of government,
however, when a constitutional requirement exists, the Court has
the duty to look into Congress compliance therewith. We cannot
turn a blind eye to possible violations of the Constitution simply out
of courtesy. In this regard, the pronouncement in Arroyo v. De
Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress
failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional
provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated
thus: The Constitution empowers each House to determine
its rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental
rights, and there should be a reasonable relation
between the mode or method of proceeding
established by the rule and the result which is
sought to be attained."
In the present case, the Courts exercise of its power of judicial
review is warranted because there appears to be a clear abuse of
the power of contempt on the part of respondent Committees.
Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its
members, may punish for contempt any witness before it
who disobey any order of the Committee or refuses to be
sworn or to testify or to answer proper questions by the
Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to
the validity of the contempt order because during the deliberation
of the three (3) respondent Committees, only seven (7) Senators
were present. This number could hardly fulfill the majority
requirement needed by respondent Committee on Accountability of
Public Officers and Investigations which has a membership of
seventeen (17) Senators and respondent Committee on National
Defense and Security which has a membership of eighteen (18)

Senators. With respect to respondent Committee on Trade and

Commerce which has a membership of nine (9) Senators, only three
(3) members were present.57 These facts prompted us to quote in
the Decision the exchanges between Senators Alan Peter Cayetano
and Aquilino Pimentel, Jr. whereby the former raised the issue of
lack of the required majority to deliberate and vote on the contempt
order.
When asked about such voting during the March 4, 2008 hearing
before this Court, Senator Francis Pangilinan stated that any
defect in the committee voting had been cured because two-thirds of
the Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led
to the issuance of the contempt order is flawed. Instead of being
submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter
presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a
faithful representation of the proceedings that took place on said
date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008
deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published
rules of procedure. The rights of person appearing
in or affected by such inquiries shall be
respected. (Emphasis supplied)

RULE
UNFINISHED BUSINESS

XLIV

SEC. 123. Unfinished business at the end of the session

shall be taken up at the next session in the same status.
All pending matters and proceedings shall terminate
upon the expiration of one (1) Congress, but may be
taken by the succeeding Congress as if present for the first
time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative investigations,
of
the
Senate
of
a
particular
Congress
are
considered terminated upon the expiration of that Congress and it
is merely optional on the Senate of the succeeding Congress to take
up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such a
rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound
by the acts and deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with respect to the
conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a
matter of course, continue into the next Congress with the same
status.
This dichotomy of the continuity of the Senate as an institution and
of the opposite nature of the conduct of its business is reflected in
its Rules. The Rules of the Senate (i.e. the Senates main rules of
procedure) states:

All the limitations embodied in the foregoing provision form part of

the witness settled expectation. If the limitations are not observed,
the witness settled expectation is shattered. Here, how could there
be a majority vote when the members in attendance are not enough
to arrive at such majority? Petitioner has the right to expect that he
can be cited in contempt only through a majority vote in a
proceeding in which the matter has been fully deliberated upon.
There is a greater measure of protection for the witness when the
concerns and objections of the members are fully articulated in such
proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is
especially true here where what is involved is the contempt power.
It must be stressed that the Rules are not promulgated for their
benefit. More than anybody else, it is the witness who has the
highest stake in the proper observance of the Rules.

RULE
AMENDMENTS
RULES

Having touched the subject of the Rules, we now proceed to

respondent Committees fourth argument. Respondent Committees
argue that the Senate does not have to publish its Rules because
the same was published in 1995 and in 2006. Further, they claim
that the Senate is a continuing body; thus, it is not required to
republish the Rules, unless the same is repealed or amended.

RULE
DATE OF TAKING EFFECT

On the nature of the Senate as a "continuing body," this Court sees

fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is "continuing", as it is not dissolved as
an entity with each national election or change in the composition
of its members. However, in the conduct of its day-to-day business
the Senate of each Congress acts separately and independently of
the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:

TO,

OR

REVISIONS

OF,

LI
THE

SEC. 136. At the start of each session in which the

Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules to
the appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion
which should be presented at least one day before its
consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
(emphasis supplied)
LII

SEC. 137. These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended
or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the
new composition of the Senate after an election and the possibility
of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin
their term.
However, it is evident that the Senate has determined that its main
rules are intended to be valid from the date of their adoption until

they are amended or repealed. Such language is conspicuously

absent from the Rules. The Rules simply state "(t)hese Rules shall
take effect seven (7) days after publication in two (2) newspapers of
general circulation."59 The latter does not explicitly provide for the
continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring
that the inquiry be conducted in accordance with the duly
published rules of procedure is categorical. It is incumbent
upon the Senate to publish the rules for its legislative inquiries in
each Congress or otherwise make the published rules clearly state
that the same shall be effective in subsequent Congresses or until
they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on
legislative inquiries to be effective even in the next Congress, it
could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that
not all orders issued or proceedings conducted pursuant to the
subject Rules are null and void. Only those that result in violation
of the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the
rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are
considered valid and effective.
Respondent Committees last argument is that their issuance of the
contempt order is not precipitate or arbitrary. Taking into account
the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness,
and contrary to the assertion of respondent Committees, petitioner
did not assume that they no longer had any other questions for him.
He repeatedly manifested his willingness to attend subsequent
hearings and respond to new matters. His only request was that he
be furnished a copy of the new questions in advance to enable him
to adequately prepare as a resource person. He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita
requested respondent Committees to dispense with his testimony
on the ground of executive privilege. Note that petitioner is an
executive official under the direct control and supervision of the
Chief Executive. Why punish petitioner for contempt when he was
merely directed by his superior? Besides, save for the three (3)
questions, he was very cooperative during the September 26, 2007
hearing.
On the part of respondent Committees, this Court observes their
haste and impatience. Instead of ruling on Executive Secretary
Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have
informed petitioner of their ruling and given him time to decide
whether to accede or file a motion for reconsideration. After all, he
is not just an ordinary witness; he is a high- ranking official in a coequal branch of government. He is an alter ego of the President.
The same haste and impatience marked the issuance of the
contempt order, despite the absence of the majority of the members
of the respondent Committees, and their subsequent disregard of

petitioners motion for reconsideration alleging the pendency of his

petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the
Executive and the Legislature are political branches of government.
In a free and democratic society, the interests of these branches
inevitably clash, but each must treat the other with official courtesy
and respect. This Court wholeheartedly concurs with the
proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally
mandated checks and balances among the different branches of
government.
In the present case, it is respondent Committees contention that
their determination on the validity of executive privilege should be
binding on the Executive and the Courts. It is their assertion
that theirinternal procedures and deliberations cannot be inquired
into by this Court supposedly in accordance with the principle of
respect between co-equal branches of government. Interestingly, it
is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on
the matter of judicial review). It moves this Court to wonder: In
respondent Committees paradigm of checks and balances, what are
the checks to the Legislatures all-encompassing, awesome power of
investigation? It is a power, like any other, that is susceptible to
grave abuse.
While this Court finds laudable the respondent Committees wellintentioned efforts to ferret out corruption, even in the highest
echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and
granted instead to the other branches of government.
There is no question that any story of government malfeasance
deserves an inquiry into its veracity. As respondent Committees
contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a
"search for truth" by the general public, the religious community
and the academe is an indication of a concerned citizenry, a nation
that demands an accounting of an entrusted power. However, the
best venue for this noble undertaking is not in the political
branches of government. The customary partisanship and the
absence of generally accepted rules on evidence are too great an
obstacle in arriving at the truth or achieving justice that meets the
test of the constitutional guarantee of due process of law. We
believe the people deserve a more exacting "search for truth" than
the process here in question, if that is its objective.
WHEREFORE,
respondent
Committees
Motion
Reconsideration dated April 8, 2008 is herebyDENIED.

for

SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.
Dissenting
Opinion
C.J.
Puno
Separate Opinion on the Motion for Reconsideration - J.
Quisumbing
Separate
Dissenting
Opinion
J.
Azcuna
Separate Opinion - J. Reyes

Article XVI, Sec. 10. The State shall provide the policy
environment for the full development of Filipino capability
and the emergence of communications structures suitable
to the needs and aspirations of the nation and the balanced
flow of information into, out of, and across the country, in
accordance with a policy that respects the freedom of
speech and of the press.
34 Article VII, Sec. 20. The President may contract or
guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided
by law. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to
Congress a complete report of its decisions on applications
for loans to be contracted or guaranteed by the
Government or government-controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
35 Article XII, Sec. 9. The Congress may establish an
independent economic and planning agency headed by the
President, which shall, after consultations with the
appropriate public agencies, various private sectors, and
local government units, recommend to Congress, and
implement continuing integrated and coordinated
programs and policies for national development. Until the
Congress provides otherwise, the National Economic and
Development Authority shall function as the independent
planning agency of the government.
36 Article XII, Sec. 21. Foreign loans may only be incurred
in accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or
guaranteed by the Government shall be made available to
the public.
37 Article XII, Sec. 22. Acts which circumvent or negate any
of the provisions of this Article shall be considered inimical
to the national interest and subject to criminal and civil
sanctions, as may be provided by law.
38 14 F. Supp. 230, 299 U.S. 304 (1936).
39 G.R. No. 170516, promulgated July 16, 2008.
40 Supra note 14.
41 Senate
Select
Committee
on
Presidential
Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir.
1974).
42 TSN, Oral Argument, March 4, 2008, pp. 417 - 422.
43 Supra, note 41 at pp. 725, 731-32.
44 Senate
Select
Committee
on
Presidential
Campaign Activities v. Nixon held that Congress "asserted
power to investigate and inform" was, standing alone,
insufficient to overcome a claim of privilege and so refused
to enforce the congressional subpoena. Id.
45 G.R. No. 89914, November 20, 1991, 203 SCRA 767.
46 Id., at p. 776.
47 Id., at p. 783.
48 The dialogue between petitioner and Senator Lacson is a
good illustration, thus:
SEN. LACSON. Did you report the attempted
bribe offer to the President?
MR. NERI. I mentioned it to the President, Your
Honor.
SEN. LACSON: What did she tell you?
MR. NERI. She told me, Dont accept it."
SEN. LACSON. And then, thats it?
MR. NERI. Yeah, because we had other things to
discuss during that time.
SEN. LACSON. And then after the President told
you, "Do not accept it," what did she do? How did
33

Footnotes
1 Chaired by Hon. Senator Alan Peter S. Cayetano.
2 Chaired by Hon. Senator Manuel A. Roxas II.
3 Chaired by Hon. Senator Rodolfo G. Biazon.
4 Transcript of the September 26, 2007 Hearing of the
respondent Committees, pp. 91-92.
5 Id., pp. 114-115.
6 Id., pp. 276-277.
7 See Letter dated November 15, 2007.
8 See Letter dated January 30, 2008.
9 G.R. No. 95367, May 23, 1995, 244 SCRA 286.
10 433 Phil. 506 (2002)
11 G.R. No. 169777, April 20, 2006, 488 SCRA 1.
12 Supra., note 9.
13 Supra., note 11.
14 G.R. No. 130716, December 9, 1998, 299 SCRA 744.
15 Supra., note 10.
16 Almonte v. Vasquez, supra., note 9.
17 Chavez v. PCGG, supra., note 14.
18 Senate v. Ermita, supra., note 11.
19 Telefunken Semiconductors Employees Union -FFW v.
Court of Appeals, G.R. Nos. 143013-14, December 18, 2000,
348 SCRA 565,587; Valderama v. NLRC, G.R. No. 98239,
April 25,1996, 256 SCRA 466, 472 citing Policarpio v.
P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil.
125, 131 (1959).
20 Supra, note 11 at pp. 68-69
21 Id., at pp. 45-46
22 Id., at p. 58
23 Id., at p. 50
24 Webster Encyclopedic Unabridged Dictionary, Gramercy
Books 1994, p. 1181.
25 Business
Dictionary,
http://www.businessdictionary.com/definition/nondelegable-duty.html
26 Usaffe Veterans Association, Inc. v. Treasurer of the
Philippines, et al. (105 Phil. 1030, 1038); See also
Commissioner of Internal Revenue v. John Gotamco &
Sons, Inc. G.R. No. L-31092, February 27, 1987,148 SCRA
36, 39.
27 No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App.
D.C. 276.
28 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid.
Serv.141.
29 Article III, Sec. 7. The right of the people to information
on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
30 Article II, Sec. 24. The State recognizes the vital role of
communication and information in nation-building.
31 Article II, Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions
involving public interest.
32 Article XI, Sec. 1. Public office is a public trust. Public
officers and employees must at all times be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

you report it to the President? In the same context

that it was offered to you?
MR. NERI. I remember it was over the phone,
Your Honor.
SEN. LACSON. Hindi nga. Papaano ninyo nireport, Inoperan (offer) ako ng bribe na P200
million ni Chairman Abalos or what? How did you
report it to her?
MR.NERI. Well, I said, Chairman Abalos offered
me 200 million for this.
SEN. LACSON. Okay. That clear?
MR. NERI. Im sorry.
SEN. LACSON. That clear?
MR. NERI. I think so, Your Honor.
SEN. LACSON. And after she told you. Do not
accept it, what did she do?
MR. NERI. I dont know anymore, Your Honor,
but I understand PAGC investigated it or-I was
not privy to any action of PAGC.
SEN. LACSON. You are not privy to any
recommendation submitted by PAGC?
MR. NERI. No, Your Honor.
SEN. LACSON. How did she react, was she
shocked also like you or was it just casually
responded to as, "Dont accept."
MR. NERI. It was over the phone, Your Honor, so
I cannot see her facial expression.
SEN. LACSON. Did it have something to do with
your change of heart so to speak - your attitude
towards the NBN project as proposed by ZTE?
MR. NERI. Can you clarify, Your Honor, I dont
understand the change of heart.
SEN. LACSON. Because, on March 26 and even
on November 21, as early as November 21, 2006
during the NEDA Board Cabinet Meeting, you
were in agreement with the President that it
should be "pay as you use" and not take or pay.
There should be no government subsidy and it
should be BOT or BOO or any similar scheme and
you were in agreement, you were not arguing. The
President was not arguing with you, you were not
arguing with the President, so you were in
agreement and all of a sudden nauwi tayo doon sa
lahat ng --- and proposal all in violation of the
Presidents Guidelines and in violation of what
you thought of the project?
MR. NERI. Well, we defer to the implementing
agencys choice as to how to implement the
project.
49 Watkins v. United States, 354 U.S. 178 (1957).
50 360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959).
51 Article XI, Section 13, par.1 of the Constitution.
52 487 F. 2d 700.
53 Professor Christopher Schroeder (then with the Clinton
Justice Department), for example, labeled some of
Congresss investigations as no more than "vendetta
oversight" or "oversight that seems primarily interested in
bringing someone down, usually someone close to the
President or perhaps the President himself." Theodore
Olson (the former Solicitor General in the Bush Justice
Department), in turn, has argued that oversight has been
used improperly by Congress to influence decision making
of executive branch officials in a way that undercuts the
Presidents power to assure that laws are faithfully
executed. (Marshall, The Limits on Congress Authority to

Investigate the President, Marshall-Illinois.Doc, November

24, 2004.)
54 103 U.S. 168 (1880).
55 Kenan Professor of Law, University of North Carolina.
56 G.R. No. 127255, August 14, 1997, 277 SCRA 268.
57 Transcript of the January 30, 2008 proceedings pp. 5-7.
58 TSN, March 4, 2008, at pp. 529-530.
59 Section 24, Rules of Procedure Governing Inquiries in
Aid of Legislation.

EN BANC

AKBAYAN
CITIZENS
ACTION
PARTY
(AKBAYAN), PAMBANSANG KATIPUNAN
NG MGA SAMAHAN SA KANAYUNAN
(PKSK), ALLIANCE OF PROGRESSIVE
LABOR
(APL),
VICENTE
A.
FABE,
ANGELITO R. MENDOZA, MANUEL P.
QUIAMBAO,
ROSE
BEATRIX
CRUZANGELES, CONG. LORENZO R. TANADA III,
CONG. MARIO JOYO AGUJA, CONG.
LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL, AND
CONG. EMMANUEL JOEL J. VILLANUEVA,
Petitioners,
- versus

THOMAS G. AQUINO, in his capacity as

Undersecretary of the Department of Trade
and Industry (DTI) and Chairman and Chief
Delegate of the Philippine Coordinating
Committee (PCC) for the Japan-Philippines
Economic Partnership Agreement, EDSEL T.
CUSTODIO,
in
his
capacity
as
Undersecretary of the Department of Foreign
Affairs (DFA) and Co-Chair of the PCC for
the JPEPA, EDGARDO ABON, in his capacity
as Chairman of the Tariff Commission and
lead negotiator for Competition Policy and
Emergency
Measures
of
the
JPEPA,
MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National
Economic Development Authority (NEDA)
and lead negotiator for Trade in Services and
Cooperation
of
the
JPEPA,
MALOU
MONTERO, in her capacity as Foreign
Service
Officer
I,
Office
of
the
Undersecretary for International Economic
Relations of the DFA and lead negotiator for
the General and Final Provisions of the
JPEPA, ERLINDA ARCELLANA, in her
capacity as Director of the Board of
Investments and lead negotiator for Trade in
Goods (General Rules) of the JPEPA,
RAQUEL ECHAGUE, in her capacity as lead
negotiator for Rules of Origin of the JPEPA,
GALLANT SORIANO, in his official capacity
as Deputy Commissioner of the Bureau of
Customs and lead negotiator for Customs
Procedures and Paperless Trading of the
JPEPA, MA. LUISA GIGETTE IMPERIAL, in
her capacity as Director of the Bureau of
Local Employment of the Department of
Labor and Employment (DOLE) and lead
negotiator for Movement of Natural Persons

G.R. No. 170516

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO
CARPIO,
AUSTRIAMARTINEZ,
CORONA,
CARPIO
MORALES,
AZCUNA,
TINGA,
CHICONAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE
CASTRO, &
BRION, JJ.

Promulgated:
July 16, 2008

of the JPEPA, PASCUAL DE GUZMAN, in his

capacity as Director of the Board of
Investments
and
lead
negotiator
for
Investment
of
the
JPEPA,
JESUS
MOTOOMULL, in his capacity as Director for
the Bureau of Product Standards of the
DTI and
lead
negotiator
for
Mutual
Recognition
of
the
JPEPA,
LOUIE
CALVARIO, in his capacity as lead negotiator
for Intellectual Property of the JPEPA,
ELMER H. DORADO, in his capacity as
Officer-in-Charge
of
the
Government
Procurement
Policy
Board
Technical
Support Office, the government agency that
is leading the negotiations on Government
Procurement of the JPEPA, RICARDO V.
PARAS, in his capacity as Chief State
Counsel of the Department of Justice (DOJ)
and lead negotiator for Dispute Avoidance
and Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead negotiator for
the General and
Final Provisions of the
JPEPA, EDUARDO R. ERMITA, in his
capacity as Executive Secretary, and
ALBERTO ROMULO, in his capacity as
Secretary
of
the
DFA,*
Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioners

non-government
organizations,
Congresspersons, citizens and taxpayers seek via the present
petition for mandamus and prohibition to obtain from respondents
the full text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) including the Philippine and Japanese offers
submitted during the negotiation process and all pertinent
attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario
Joyo Aguja filed on January 25, 2005 House Resolution No. 551
calling for an inquiry into the bilateral trade agreements then being
negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry
subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the
JPEPA.
In the course of its inquiry, the House Committee requested
herein respondent Undersecretary Tomas Aquino (Usec. Aquino),
Chairman of the Philippine Coordinating Committee created under
Executive Order No. 213 (CREATION OF A PHILIPPINE
COORDINATING COMMITTEE TO STUDY THE FEASIBILITY
OF THE JAPAN-PHILIPPINES ECONOMIC PARTNERSHIP
AGREEMENT)[1] to study and negotiate the proposed JPEPA, and
to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document,
but Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof once the
negotiations are completed and as soon as a thorough legal review
of the proposed agreement has been conducted.

In a separate move, the House Committee, through

Congressman Herminio G. Teves, requested Executive Secretary
EduardoErmita to furnish it with all documents on the subject
including the latest draft of the proposed agreement, the requests
and offers etc.[2] Acting on the request, Secretary Ermita, by letter
of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy
enclosed), [the] D[epartment of] F[oreign] A[ffairs]
explains that the Committees request to be
furnished all documents on the JPEPA may
be difficult to accomplish at this time, since
the proposed Agreement has been a work in
progress for about three years. A copy of the
draft JPEPA will however be forwarded to the
Committee as soon as the text thereof is settled
and complete. (Emphasis supplied)
Congressman Aguja also requested NEDA DirectorGeneral Romulo Neri and
Tariff
Commission
Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the
latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12,
2005 that the Tariff Commission does not have a copy of the
documents
being
requested,
albeit
he
was
certain
that Usec. Aquino would provide the Congressman with a copy
once the negotiation is completed. And by letter of July 18, 2005,
NEDA Assistant Director-General Margarita R. Songco informed
the Congressman that his request addressed to DirectorGeneral Neri had been forwarded to Usec. Aquino who would be in
the best position to respond to the request.
In its third hearing conducted on August 31, 2005, the
House Committee resolved to issue a subpoena for the most recent
draft of the JPEPA, but the same was not pursued because by
Committee Chairman Congressman Teves information, then House
Speaker Jose de Venecia had requested him to hold in abeyance the
issuance of the subpoena until the President gives her consent to
the disclosure of the documents.[3]
Amid speculations that the JPEPA might be signed by the
Philippine government within December 2005, the present petition
was filed on December 9, 2005.[4] The agreement was to be later
signed on September 9, 2006 by President Gloria Macapagal-Arroyo
and
Japanese
Prime
Minister Junichiro Koizumi
in Helsinki, Finland, following which the President endorsed it to
the Senate for its concurrence pursuant to Article VII, Section 21 of
the Constitution. To date, the JPEPA is still being deliberated
upon by the Senate.
The JPEPA, which will be the first bilateral free trade
agreement to be entered into by the Philippines with another
country in the event the Senate grants its consent to it, covers a
broad range of topics which respondents enumerate as follows:
trade in goods, rules of origin, customs procedures, paperless
trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute
avoidance and settlement, improvement of the business
environment, and general and final provisions.[5]
While the final text of the JPEPA has now been made
accessible to the public since September 11, 2006,[6] respondents do
not dispute that, at the time the petition was filed up to the filing of

petitioners Reply when the JPEPA was still being negotiated

the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by
petitioners in support of the petition, the Court finds it necessary to
first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be
given due course, it must be instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal
right.[7] Respondents deny that petitioners have such standing to
sue. [I]n the interest of a speedy and definitive resolution of the
substantive issues raised, however, respondents consider it
sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary[8] which emphasizes the need for a personal
stake in the outcome of the controversy on questions of standing.
In a petition anchored upon the right of the people to
information on matters of public concern, which is a public right by
its very nature, petitioners need not show that they have any legal
or special interest in the result, it being sufficient to show that they
are citizens and, therefore, part of the general public which
possesses the right.[9] As the present petition is anchored on the
right to information and petitioners are all suing in their capacity
as citizens and groups of citizens including petitioners-members of
the House of Representatives who additionally are suing in their
capacity as such, the standing of petitioners to file the present suit
is grounded in jurisprudence.

The text of the JPEPA having then been made accessible to

the public, the petition has become moot and academic to the extent
that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because
petitioners seek to obtain, not merely the text of the JPEPA, but
also the Philippine and Japanese offers in the course of the
negotiations.[12]
A discussion of the substantive issues, insofar as they
impinge on petitioners demand for access to the Philippine and
Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to
disclose the documents bearing on the JPEPA negotiations violates
their
right
to
information
on matters of public concern[13] and contravenes
other
constitutional provisions on transparency, such as that on the
policy of full public disclosure of all transactions involving public
interest.[14] Second, they contend that non-disclosure of the same
documents undermines their right to effective and reasonable
participation in all levels of social, political, and economic decisionmaking.[15] Lastly, they proffer that divulging the contents of the
JPEPA only after the agreement has been concluded will effectively
make the Senate into a mere rubber stamp of the Executive, in
violation of the principle of separation of powers.

Mootness
Considering, however, that [t]he principal relief petitioners
are praying for is the disclosure of the contents of the JPEPAprior
to its finalization between the two States parties,[10] public
disclosure of the text of the JPEPA after its signing by the
President, during the pendency of the present petition, has been
largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending,
the agreement as it now stands cannot yet be considered as final
and binding between the two States. Article 164 of the JPEPA
itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the
procedures required by the laws of each country for its entry into
force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the
thirtieth day after the date on which the
Governments of the Parties exchange diplomatic
notes informing each other that their respective
legal procedures necessary for entry into
force of this Agreement have been
completed. It shall remain in force unless
terminated
as
provided
for
in
Article
165.[11] (Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate
for concurrence is part of the legal procedures which must be met
prior to the agreements entry into force.

Significantly, the grounds relied upon by petitioners for the

disclosure of the latest text of the JPEPA are, except for the last,
the same as those cited for the disclosure of the Philippine and
Japanese offers.
The first two grounds relied upon by petitioners which bear
on the merits of respondents claim of privilege shall be
discussed. The last, being purely speculatory given that the Senate
is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information
sought must meet the threshold requirement that it be a matter of
public concern. Apropos is the teaching of Legaspi v. Civil Service
Commission:
In determining whether or not a particular
information is of public concern there is no rigid
test which can be applied. Public concern like
public interest is a term that eludes exact
definition. Both terms embrace a broad spectrum
of subjects which the public may want to know,
either because these directly affect their lives, or
simply because such matters naturally arouse the
interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case
by case basis whether the matter at issue is of
interest or importance, as it relates to or affects
the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade

agreement, it is evident that the Philippine and Japanese offers
submitted during the negotiations towards its execution are
matters of public concern. This, respondents do not dispute. They
only claim that diplomatic negotiations are covered by the doctrine
of executive privilege, thus constituting an exception to the right
to information and the policy of full public disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right
to information nor the policy of full public disclosure is absolute,
there being matters which, albeit of public concern or public
interest, are recognized as privileged in nature. The types of
information which may be considered privileged have been
elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v.
Public Estates Authority,[19] and most recently in Senate
v. Ermita[20] where the Court reaffirmed the validity of the doctrine
of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on
the ground invoked to justify it and the context in which it is
made.[21] In the present case, the ground for respondents claim of
privilege is set forth in their Comment, viz:
x x x The categories of information that
may be considered privileged includes matters of
diplomatic character and under negotiation and
review. In this case, the privileged character of
the diplomatic
negotiations has
been
categorically invoked and clearly explained by
respondentsparticularly respondent DTI Senior
Undersecretary.
The documents on the proposed JPEPA as
well as the text which is subject to negotiations
and legal review by the parties fall under the
exceptions to the right of access to information on
matters of public concern and policy of public
disclosure. They come within the coverage of
executive privilege. At the time when the
Committee was requesting for copies of such
documents, the negotiations were ongoing as they
are still now and the text of the proposed JPEPA
is
still
uncertain
and
subject
to
change. Considering the status and nature of
such documents then and now, these are evidently
covered by executive privilege consistent with
existing
legal
provisions
and
settled
jurisprudence.
Practical and strategic considerations
likewise counsel against the disclosure of the
rolling texts which may undergo radical change
or
portions
of
which may
be
totally
abandoned. Furthermore, the negotiations of
the representatives of the Philippines as
well as of Japan must be allowed to explore
alternatives in the course of the negotiations
in the same manner as judicial deliberations
and working drafts of opinions are accorded
strict
confidentiality.[22] (Emphasis
and
underscoring supplied)

The ground relied upon by respondents is thus not simply

that the information sought involves a diplomatic matter, but that
it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been
recognized in this jurisdiction. In discussing valid limitations on
the right to information, the Court in Chavez v. PCGG held that
information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.[23] Even earlier, the
same privilege was upheld in Peoples Movement for Press Freedom
(PMPF) v. Manglapus[24] wherein the Court discussed the reasons
for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking
information from the Presidents representatives on the state of the
then on-going negotiations of the RP-US Military Bases
Agreement.[25] The Court denied the petition, stressing that
secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of
the press nor of the freedom of access to information. The
Resolution went on to state, thus:
The nature of diplomacy requires
centralization of authority and expedition of
decision which are inherent in executive
action. Another essential characteristic of
diplomacy
is
its
confidential
nature. Although much has been said about
open
and
secret
diplomacy,
with
disparagement of the latter, Secretaries of State
Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr.Stimson:
A
complicated
negotiation . . . cannot be
carried
through
without
many, many private talks
and discussion, man to man;
many tentative suggestions
and
proposals. Delegates
from other countries come
and tell you in confidence of
their troubles at home and of
their differences with other
countries and with other
delegates; they
tell
you
of what they would do under
certain circumstances and
would not do under other
circumstances. . . If these
reports . . . should become
public . . . who would ever
trust American Delegations
in
another
conference? (United
States
Department of State, Press
Releases, June 7, 1930, pp. 282284.).
xxxx
There is frequent criticism of the
secrecy in which negotiation with foreign

powers
on
nearly
all
subjects
is
concerned. This,
it
is
claimed,
is
incompatible
with
the
substance
of
democracy. As expressed by one writer, It can
be said that there is no more rigid system of
silence anywhere in the world. (E.J. Young,
Looking
Behind
the
Censorship,
J.
B. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World
War declared that we must have open covenants,
openly arrived at. He quickly abandoned his
thought.
No one who has studied the question
believes that such a method of publicity is
possible. In the moment that negotiations are
started, pressure groups attempt to muscle
in. An ill-timed speech by one of the parties
or a frank declaration of the concession
which are exacted or offered on both sides
would
quickly
lead
to
widespread
propaganda to block the negotiations. After
a treaty has been drafted and its terms are
fully published, there is ample opportunity
for discussion before it is approved. (The New
American Government and Its Works, James T.
Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the
doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the
President is the sole organ of the nation in its negotiations with
foreign countries, viz:
x x x In this vast external realm, with its
important, complicated, delicate and manifold
problems, the President alone has the power to
speak or listen as a representative of the
nation. He makes treaties with the advice and
consent of the Senate; but he
alone
negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument
of March
7,
1800,
in
the
House
of
Representatives, The President is the sole
organ of the nation in its external relations,
and its sole representative with foreign
nations. Annals, 6th Cong., col. 613. . .
(Emphasis supplied; underscoring in the original)

representatives from frankly expressing their views during

negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that
matter, normallyinvolve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an
area of lesser importance in order to obtain more favorable
terms in an area of greater national interest. Apropos are the
following observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice
of negotiations appear to be in agreement
that publicity leads to grandstanding,
tends to freeze negotiating positions, and
inhibits the give-and-take essential to
successful
negotiation. As Sissela Bok points
out, if negotiators have more to gain from being
approved by their own sides than by making a
reasoned agreement with competitors or
adversaries, then they are inclined to 'play to the
gallery . . .'' In fact, the public reaction may
leave them little option. It would be a brave, or
foolish, Arab leader who expressed publicly a
willingness for peace with Israel that did not
involve the return of the entire West Bank, or
Israeli leader who stated publicly a willingness to
remove Israel's existing settlements from Judea
and Samaria in return for peace.[28] (Emphasis
supplied)
Indeed, by hampering the ability of our representatives to
compromise, we may be jeopardizing higher national goals for the
sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as
privileged in this jurisdiction, the JPEPA negotiations constituting
no exception. It bears emphasis, however, that such privilege is
only presumptive. For as Senate v. Ermita holds, recognizing a
type of information as privileged does not mean that it will be
considered privileged in all instances. Only after a consideration of
the context in which the claim is made may it be determined if
there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged
status.
Whether petitioners have established the presence of such a
public interest shall be discussed later. For now, the Court shall
first pass upon the arguments raised by petitioners against the
application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application
of PMPF v. Manglapus

Applying the principles adopted in PMPF v. Manglapus, it is

clear that while the final text of the JPEPA may not be kept
perpetually confidential since there should be ample opportunity
for discussion before [a treaty] is approved the offersexchanged
by the parties during the negotiations continue to be privileged
even after the JPEPA is published. It is reasonable to conclude
that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern
the same. Disclosing these offers could impair the ability of
the Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should
now be open to public scrutiny would discourage future Philippine

Petitioners argue that PMPF v. Manglapus cannot be

applied in toto to the present case, there being substantial factual
distinctions between the two.
To
petitioners,
the first and
most
fundamental
distinction lies in the nature of the treaty involved. They stress
that PMPF v.Manglapus involved the Military Bases Agreement
which necessarily pertained to matters affecting national security;
whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan,
matters which, unlike those covered by the Military Bases

Agreement, are not so vital to national security to disallow their

disclosure.
Petitioners argument betrays a faulty assumption that
information, to be considered privileged, must involve national
security. The recognition in Senate v. Ermita[29] that executive
privilege has encompassed claims of varying kinds, such that it
may even be more accurate to speak of executive privileges,
cautions against such generalization.
While there certainly are privileges grounded on the
necessity of safeguarding national security such as those involving
military secrets, not all are founded thereon. One example is the
informers privilege, or the privilege of the Government not to
disclose the identity of a person or persons who furnish information
of violations of law to officers charged with the enforcement of that
law.[30] The suspect involved need not be so notorious as to be a
threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but
the most high-profile cases, in which case not only would this be
contrary to long-standing practice. It would also be highly
prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential
communications, which are presumed privileged without
distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege
being that
x x x [a] frank exchange of exploratory
ideas and assessments, free from the glare of
publicity and pressure by interested parties, is
essential to protect the independence of
decision-making of those tasked to exercise
Presidential, Legislative and Judicial power.
x x x[31] (Emphasis supplied)
In the same way that the privilege for judicial deliberations
does not depend on the nature of the case deliberated upon, so
presidential communications are privileged whether they involve
matters of national security.
It bears emphasis, however, that the privilege accorded to
presidential communications is not absolute, one significant
qualification being that the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege
to shield its
officials
and
employees
from
investigations by
the
proper
governmental
institutions
into possible criminal wrongdoing. [32] This qualification
applies whether the privilege is being invoked in the context of a
judicial trial or a congressional investigation conducted in aid of
legislation.[33]
Closely related to the presidential communications privilege
is the deliberative process privilege recognized in the United
States. As discussed by the U.S. Supreme Court in NLRB v. Sears,
Roebuck & Co,[34] deliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents
rests, not on the need to protect national security but, on the
obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery
and front page news, the objective of the privilege being to enhance
the quality of agency decisions. [35]

The diplomatic negotiations privilege bears a close

resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations,
deliberative process, and presidential communications is similar, if
not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that
the privilege for diplomatic negotiations is meant to encourage a
frank exchange of exploratory ideas between the negotiating parties
by shielding such negotiations from public view. Similar to the
privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect
the independence in decision-making of the President, particularly
in its capacity as the sole organ of the nation in its external
relations, and its sole representative with foreign nations. And, as
with the deliberative process privilege, the privilege accorded to
diplomatic negotiations arises, not on account of the content of the
information per se, but because the information is part of a process
of deliberation which, in pursuit of the public interest, must be
presumed confidential.
The decision of the U.S. District Court, District of
Columbia in Fulbright
& Jaworski v.
Department
of
the
Treasury[37]enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in
that case sought access to notes taken by a member of
the U.S. negotiating
team
during
the
U.S.French tax treaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French
and U.S. teams took on some points, the draft language agreed on,
and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to
draft a treaty represent a true example of a
deliberative process. Much give-and-take
must occur for the countries to reach an
accord. A description of the negotiations at any
one point would not provide an onlooker a
summary of the discussions which could later be
relied on as law. It would not be working law as
the points discussed and positions agreed on
would be subject to change at any date until the
treaty was signed by the President and ratified by
the Senate.
The policies behind the deliberative
process
privilege support
nondisclosure. Much harm could accrue to the
negotiations process if these notes were
revealed. Exposure of the pre-agreement
positions of the French negotiators might
well offend foreign governments and would
lead to less candor by the U. S. in recording
the events of the negotiations process. As
several months pass in between negotiations, this
lack of record could hinder readily the U.
S. negotiating team. Further disclosure would
reveal prematurely adopted policies. If these
policies should be changed, public confusion would
result easily.
Finally, releasing these snapshot
views of the negotiations would be
comparable to releasing drafts of the treaty,
particularly when the notes state the

tentative provisions and language agreed on.

As drafts of regulations typically are
protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May
21, 1982), drafts of treaties should be accorded
the
same
protection. (Emphasis
and
underscoring supplied)
Clearly, the privilege accorded to diplomatic
negotiations follows as a logical consequence from the
privileged character of the deliberative process.
The Court is not unaware that in Center for International
Environmental Law (CIEL), et al. v. Office of U.S.
Trade
Representative[38] where the plaintiffs sought
information relating to the just-completed negotiation of a United
States-Chile Free Trade Agreement the same district court, this
time under Judge Friedman, consciously refrained from applying
the doctrine inFulbright and ordered the disclosure of the
information being sought.
Since the factual milieu in CIEL seemed to call for the
straight application of the doctrine in Fulbright, a discussion of
why the district court did not apply the same would help illumine
this Courts own reasons for deciding the present case along the
lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a
statutory basis for withholding information, namely, Exemption 5
of the Freedom of Information Act (FOIA).[39] In order to qualify
for protection under Exemption 5, a document must satisfy two
conditions: (1) it must be either inter-agency or intra-agency in
nature, and (2) it must be both pre-decisional and part of the
agency's deliberative or decision-making process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial
similarity of context between the two cases, based his decision on
what he perceived to be a significant distinction: he found the
negotiators notes that were sought in Fulbright to be clearly
internal, whereas the documents being sought in CIEL were those
produced by or exchanged with an outside party, i.e. Chile. The
documents subject of Fulbright being clearly internal in character,
the question of disclosure therein turned not on the threshold
requirement of Exemption 5 that the document be inter-agency,
but on whether the documents were part of the agency's predecisional deliberative process. On this basis, Judge Friedman
found that Judge Green's discussion [in Fulbright] of the harm
that could result from disclosure therefore is irrelevant, since the
documents at issue [in CIEL] are not inter-agency, and the
Court does not reach the question of deliberative process.
(Emphasis supplied)
In
fine, Fulbright was
not
overturned. The
court
in CIEL merely found the same to be irrelevant in light of its
distinct factual setting. Whether this conclusion was valid a
question on which this Court would not pass the ruling
in Fulbright that [n]egotiations between two countries to draft a
treaty represent a true example of a deliberative process was left
standing, since theCIEL court explicitly stated that it did not
reach the question of deliberative process.
Going back to the present case, the Court recognizes that
the information sought by petitioners includes documents
produced and communicated by a party external to the Philippine
government, namely, the Japanese representatives in the JPEPA

negotiations, and to that extent this case is closer to the factual

circumstances of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly,
this Court echoes the principle articulated in Fulbright that the
public policy underlying the deliberative process privilege requires
that diplomatic negotiations should also be accorded privileged
status, even if the documents subject of the present case cannot be
described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the
disclosure of information based on its finding that the first
requirement of FOIA Exemption 5 that the documents be interagency was not met. In determining whether the government
may validly refuse disclosure of the exchanges between
the U.S. and Chile, it necessarily had to deal with this
requirement, it being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the
FOIA, nor is there any statutory requirement similar to FOIA
Exemption 5 in particular. Hence, Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more
free to focus directly on the issue of whether the privilege being
claimed is indeed supported by public policy, without having
to consider as the CIEL court did if these negotiations fulfill a
formal requirement of being inter-agency. Important though
that requirement may be in the context of domestic negotiations, it
need not be accorded the same significance when dealing with
international negotiations.
There being a public policy supporting a privilege for
diplomatic negotiations for the reasons explained above, the Court
sees no reason to modify, much less abandon, the doctrine
in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to
differentiate PMPF v. Manglapus from the present case is the fact
that the petitioners therein consisted entirely of members of the
mass media, while petitioners in the present case include members
of the House of Representatives who invoke their right to
information not just as citizens but as members of Congress.

Petitioners thus conclude that the present case involves the

right of members of Congress to demand information on
negotiations of international trade agreements from the Executive
branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted
only of members of the mass media, it would be incorrect to claim
that the doctrine laid down therein has no bearing on a controversy
such as the present, where the demand for information has come
from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed
under different circumstances. The probability of the claim
succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another
matter altogether.
The Courts statement in Senate v. Ermita that presidential
refusals to furnish information may be actuated by any of at least

three distinct kinds of considerations [state secrets privilege,

informers privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of
success, in the context of either judicial or legislative
investigations,[41] implies that a privilege, once recognized, may be
invoked under different procedural settings. That this principle
holds true particularly with respect to diplomatic negotiations may
be inferred from PMPF v. Manglapus itself, where the Court held
that it is the President alone who negotiates treaties, and not even
the Senate or the House of Representatives, unless asked, may
intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be
invoked not only against citizens demands for information, but also
in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the
privileged character of diplomatic negotiations cannot be considered
irrelevant in resolving the present case, the contextual differences
between the two cases notwithstanding.
As third and last point raised against the application
of PMPF v. Manglapus in this case, petitioners proffer that the
socio-political and historical contexts of the two cases are worlds
apart. They claim that the constitutional traditions and concepts
prevailing at the time PMPF v. Manglapus came about,
particularly the school of thought that the requirements of foreign
policy and the ideals of transparency were incompatible with each
other or the incompatibility hypothesis, while valid when
international relations were still governed by power, politics and
wars, are no longer so in this age of international cooperation.[42]
Without delving into petitioners assertions respecting the
incompatibility hypothesis, the Court notes that the ruling
inPMPF v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school of
thought. If petitioners are suggesting that the nature of treaty
negotiations have so changed that [a]n ill-timed speech by one of
the parties or a frank declaration of the concession which are
exacted or offered on both sides no longer lead[s] to widespread
propaganda to block the negotiations, or that parties in treaty
negotiations no longer expect their communications to be governed
by historic confidentiality, the burden is on them to substantiate
the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the
negotiation process
Petitioners admit that diplomatic negotiations on the JPEPA
are entitled to a reasonable amount of confidentiality so as not to
jeopardize the diplomatic process. They argue, however, that the
same is privileged only at certain stages of the negotiating process,
after which such information must necessarily be revealed to the
public.[43] They add that the duty to disclose this information was
vested in the government when the negotiations moved from the
formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v.
PCGG[44] and Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices
to show that the doctrine in both that case and Chavez v.
PCGG with regard to the duty to disclose definite propositions of
the government does not apply to diplomatic negotiations:

We rule, therefore, 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.
x x x[46](Emphasis and underscoring
supplied)
It follows from this ruling that even definite propositions of the
government may not be disclosed if they fall under recognized
exceptions. The privilege for diplomatic negotiations is clearly
among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an
authority.
Whether there is sufficient public interest to overcome the
claim of privilege
It being established that diplomatic negotiations enjoy a
presumptive privilege against disclosure, even against the demands
of members of Congress for information, the Court shall now
determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest
that must be taken into account. One is the presumed public
interestin favor of keeping the subject information
confidential, which is the reason for the privilege in the first
place, and the other is the public interest in favor of disclosure,
the existence of which must be shown by the party asking for
information. [47]
The criteria to be employed in determining whether there is a
sufficient public interest in favor of disclosure may be gathered
from cases such as U.S. v. Nixon,[48] Senate Select Committee on
Presidential Campaign Activities v. Nixon,[49] and In re Sealed
Case.[50]
U.S. v. Nixon, which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a
district court in a criminal case, emphasized the need to balance
such claim of privilege against the constitutional duty of courts to
ensure a fair administration of criminal justice.
x x x the allowance of the privilege to
withhold evidence that is demonstrably relevant in
a criminal trial would cut deeply into the
guarantee of due process of law and gravely
impair the basic function of the courts. A
Presidents
acknowledged
need
for
confidentiality in the communications of his
office is general in nature, whereas
the constitutional need for production of
relevant
evidence
in
a
criminal
proceeding is specific and central to the fair
adjudication of a particular criminal case in
the administration of justice. Without access
to specific facts a criminal prosecution may be
totally frustrated. The Presidents broad interest

in confidentiality of communications will not be

vitiated by disclosure of a limited number of
conversations preliminarily shown to have some
bearing
on
the
pending
criminal
cases. (Emphasis, italics and underscoring
supplied)
Similarly, Senate Select Committee v. Nixon,[51] which
involved a claim of the presidential communications privilege
against the subpoena duces tecum of a Senate committee, spoke
of the need to balance such claim with the duty of Congress to
perform itslegislative functions.
The staged decisional structure established
in Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly relies
in the performance of his duties could continue to
work under a general assurance that their
deliberations would remain confidential. So long
asthe presumption that the public interest
favors confidentiality can be defeated only
by a strong showing of need by another
institution of government- a showing that
the responsibilities of that institution cannot
responsibly be fulfilled without access to
records of the President's deliberations- we
believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the
presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's
showing of need has come to depend,
therefore,
entirely
on
whether
the
subpoenaed materials are critical to the
performance
of
its
legislative
functions. x x x (Emphasis and underscoring
supplied)
In re Sealed Case[52] involved a claim of the deliberative
process and presidential communications privileges against a
subpoena duces tecum of a grand jury. On the claim of deliberative
process privilege, the court stated:
The deliberative process privilege is
a qualified privilege and can be overcome
by a sufficient showing of need. This need
determination is to be made flexibly on a
case-by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the
district court must undertake a fresh balancing of
the competing interests," taking into account
factors such as "the relevance of the
evidence,"
"the
availability
of
other
evidence," "the seriousness of the litigation,"
"the role of the government," and the
"possibility of future timidity by government
employees.
x x x (Emphasis,
italics
and
underscoring supplied)
Petitioners have failed to present the strong and sufficient
showing of need referred to in the immediately cited cases. The

arguments they proffer to establish their entitlement to the subject

documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the
Filipino people in the JPEPA negotiation process effectively results
in the bargaining away of their economic and property rights
without their knowledge and participation, in violation of the due
process clause of the Constitution. They claim, moreover, that it is
essential for the people to have access to the initial offers
exchanged during the negotiations since only through such
disclosure can their constitutional right to effectively participate in
decision-making be brought to life in the context of international
trade agreements.
Whether it can accurately be said that the Filipino people
were not involved in the JPEPA negotiations is a question of fact
which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that
public
consultations
were
conducted
on
the
JPEPA. Parenthetically, petitioners consider these alleged
consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers
exchanged by the Philippine and Japanese representatives have not
been disclosed to the public, the Court shall pass upon the issue of
whether access to the documents bearing on them is, as petitioners
claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely
weakened by the disclosure of the full text of the JPEPA to the
public since September 11, 2006, even as it is still being deliberated
upon by the Senate and, therefore, not yet binding on the
Philippines. Were the Senate to concur with the validity of the
JPEPA at this moment, there has already been, in the words
of PMPF v.Manglapus, ample opportunity for discussion before
[the treaty] is approved.
The text of the JPEPA having been published, petitioners
have failed to convince this Court that they will not be able to
meaningfully exercise their right to participate in decision-making
unless the initial offers are also published.
It is of public knowledge that various non-government
sectors and private citizens have already publicly expressed their
views on the JPEPA, their comments not being limited to general
observations thereon but on its specific provisions. Numerous
articles and statements critical of the JPEPA have been posted on
the Internet.[54] Given these developments, there is no basis for
petitioners claim that access to the Philippine and Japanese offers
is essential to the exercise of their right to participate in decisionmaking.
Petitioner-members of the House of Representatives
additionally anchor their claim to have a right to the subject
documents on the basis of Congress inherent power to regulate
commerce, be it domestic or international. They allege that
Congress cannot meaningfully exercise the power to regulate
international trade agreements such as the JPEPA without being
given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot
exclude Congress from the JPEPA negotiations since whatever
power and authority the President has to negotiate international
trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and
Sections 401 and 402 of Presidential Decree No. 1464.[55]

The subject of Article VI Section 28(2) of the Constitution

is not the power to negotiate treaties and international agreements,
but the power to fix tariff rates, import and export quotas, and
other taxes. Thus it provides:
(2) The Congress may, by law, authorize
the President to fix within specified limits, and
subject to such limitations and restrictions as it
may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the
national development program of the Government.

As to the power to negotiate treaties, the

constitutional basis thereof is Section 21 of Article VII the article
on the Executive Department which states:
No treaty or international agreement shall
be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.

The doctrine in PMPF v. Manglapus that the treatymaking power is exclusive to the President, being the sole organ of
the nation in its external relations, was echoed in BAYAN v.
Executive Secretary[56] where the Court held:
By constitutional
fiat and
by
the intrinsic nature of his office, the
President,
as
head
of
State,
is
the sole organ and authority in the external
affairs of the country. In many ways, the
President is the chief architect of the
nation's foreign policy; his "dominance in the
field
of
foreign
relations
is
(then)
conceded." Wielding
vast
powers
and
influence, his conduct in the external
affairs of the nation, asJefferson describes, is
executive altogether.
As regards the power to enter into
treaties or international agreements, the
Constitution vests the same in the
President,subject only to the concurrence of
at least two thirds vote of all the members of
the Senate. In this light, the negotiation of the
VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely
to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him
no less than by the fundamental law
itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the
original; emphasis and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v.
Executive Secretary[57] where the Court ruled:
In our system of government, the
President, being the head of state, is regarded
as the sole organ and authority in external

relations and is the country's sole

representative with foreign nations. As the
chief architect of foreign policy, the President acts
as the country's mouthpiece with respect to
international affairs. Hence, the President is
vested with the authority to deal with foreign
states and governments, extend or withhold
recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the
business of foreign relations. In the realm of
treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has
the sole authority to negotiate and enter into
treaties, the Constitution provides a
limitation to his power by requiring the
concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered
into by him. x x x (Emphasis and underscoring
supplied)
While the power then to fix tariff rates and other taxes
clearly belongs to Congress, and is exercised by the President only
by delegation of that body, it has long been recognized that the
power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of
all the Members of the Senate for the validity of the treaty. In this
light, the authority of the President to enter into trade agreements
with foreign nations provided under P.D. 1464[58] may be
interpreted as an acknowledgment of a power already inherent
in its office. It may not be used as basis to hold the President or
its representatives accountable to Congress for the conduct of
treaty negotiations.
This is not to say, of course, that the Presidents power to
enter into treaties is unlimited but for the requirement of Senate
concurrence, since the President must still ensure that all treaties
will substantively conform to all the relevant provisions of the
Constitution.
It follows from the above discussion that Congress, while
possessing vast legislative powers, may not interfere in the field of
treaty negotiations. While Article VII, Section 21 provides for
Senate concurrence, such pertains only to the validity of the treaty
under consideration, not to the conduct of negotiations attendant to
its conclusion. Moreover, it is not even Congress as a wholethat
has been given the authority to concur as a means of checking the
treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as
private citizens, petitioners-members of the House of
Representatives fail to present a sufficient showing of need that
the information sought is critical to the performance of the
functions of Congress, functions that do not include treatynegotiation.
Respondents alleged failure to timely claim executive
privilege
On respondents invocation of executive privilege,
petitioners find the same defective, not having been done
seasonably as it was raised only in their Comment to the present
petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time
only in their Comment to the present petition does not mean that

the claim of privilege should not be credited. Petitioners position

presupposes that an assertion of the privilege should have been
made during the House Committee investigations, failing which
respondents are deemed to have waived it.
When
the
House
Committee
and
petitionerCongressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the
negotiations were still on-going and that the draft of the JPEPA
would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are
confidential in nature by reason of public policy. The response may
not thus be deemed a claim of privilege by the standards of Senate
v. Ermita, which recognizes as claims of privilege only those which
are accompanied by precise and certain reasons for preserving
the confidentiality of the information being sought.
Respondents failure to claim the privilege during the House
Committee hearings may not, however, be construed as a waiver
thereof by the Executive branch. As the immediately preceding
paragraph indicates, what respondents received from the House
Committee
and
petitioner-Congressman Aguja were
mere requests for information. And as priorly stated, the House
Committee itself refrained from pursuing its earlier resolution to
issue a subpoena duces tecum on account of then Speaker Jose
de Venecias alleged
request
to
Committee
Chairperson
Congressman Teves to hold the same in abeyance.

against any abuse of executive privilege. It is a zeal that We fully

share.
The Court, however, in its endeavor to guard against the
abuse of executive privilege, should be careful not to veer towards
the opposite extreme, to the point that it would strike down as
invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the
Dissenting Opinion which have not yet been sufficiently addressed
above.
1. After its historical discussion on the allocation of power
over international trade agreements in the United States, the
dissent concludes that it will be turning somersaults with history
to contend that the President is the sole organ for external
relations in that jurisdiction. With regard to this opinion, We
make only the following observations:
There is, at least, a core meaning of the phrase sole organ of
the nation in its external relations which is not being disputed,
namely, that the power to directly negotiate treaties and
international agreements is vested by our Constitution only in the
Executive. Thus, the dissent states that Congress has the power to
regulate commerce with foreign nations but does not have the
power to negotiate international agreements directly.[62]
What is disputed is how this principle applies to the case

While it is a salutary and noble practice for Congress to

refrain from issuing subpoenas to executive officials out of respect
for their office until resort to it becomes necessary, the fact
remains that such requests are not a compulsory process. Being
mere requests, they do not strictly call for an assertion of executive
privilege.
The privilege is an exemption to Congress power of
inquiry.[59] So long as Congress itself finds no cause to enforce such
power, there is no strict necessity to assert the privilege. In this
light, respondents failure to invoke the privilege during the House
Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege
appearing in respondents Comment to this petition fails to satisfy
in full the requirement laid down in Senate v. Ermita that the claim
should be invoked by the President or through the Executive
Secretary by order of the President.[60] Respondents claim of
privilege is being sustained, however, its flaw notwithstanding,
because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive
Secretary, who is one of the respondents herein, without him
adding the phrase by order of the President, shall be considered
as partially complying with the requirement laid down in Senate
v. Ermita. The requirement that the phrase by order of the
President should accompany the Executive Secretarys claim of
privilege is a new rule laid down for the first time in Senate
v. Ermita, which was not yet final and executory at the time
respondents filed their Comment to the petition.[61] A strict
application of this requirement would thus be unwarranted in this
case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice
lies a genuine zeal to protect our peoples right to information

at bar.
The dissent opines that petitioner-members of the House of
Representatives, by asking for the subject JPEPA documents, are
not seeking to directly participate in the negotiations of the JPEPA,
hence, they cannot be prevented from gaining access to these
documents.
On the other hand, We hold that this is one occasion where
the following ruling in Agan v. PIATCO[63] and in other cases both
before and since should be applied:
This Court has long and consistently
adhered to the legal maxim that those that
cannot be done directly cannot be done
indirectly. To declare the PIATCO contracts
valid despite the clear statutory prohibition
against a direct government guarantee would not
only make a mockery of what the BOT Law
seeks to prevent -- which is to expose the
government to the risk of incurring a monetary
obligation resulting from a contract of loan
between the project proponent and its lenders and
to which the Government is not a party to --but
would also render the BOT Law useless for
what it seeks to achieve - to make use of the
resources of the private sector in the financing,
operation and maintenance of infrastructure and
development projects which are necessary for
national growth and development but which the
government, unfortunately, could ill-afford to
finance at this point in time.[64]
Similarly, while herein petitioners-members of the House of
Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their
scrutiny even to the point of giving them access to the offers

exchanged between the Japanese and Philippine delegations

would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when
it vested the power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to
achieve in defining the treaty-making power of the President,
which our Constitution similarly defines, may be gathered
from Hamiltons explanation of why the U.S. Constitution excludes
the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future
increase
into
account, the
multitudinous
composition of that body, forbid us to expect in it
those qualities which are essential to the proper
execution of such a trust. Accurate and
comprehensive knowledge of foreign politics; a
steady and systematic adherence to the same
views; a nice and uniform sensibility to national
character, decision, secrecy and dispatch; are
incompatible with a body so variable and so
numerous. The very complication of the business
by introducing a necessity of the concurrence of so
many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon
the house of representatives, and the greater
length of time which it would often be necessary to
keep them together when convened, to obtain
their sanction in the progressive stages of a
treaty, would be source of so great inconvenience
and expense, as alone ought to condemn the
project.[65]
These considerations a fortiori apply in this jurisdiction, since
the Philippine Constitution, unlike that of the U.S., does not even
grant the Senate the power to advise the Executive in the making
of treaties, but only vests in that body the power to concur in the
validity of the treaty after negotiations have been
concluded.[66] Much less, therefore, should it be inferred that the
House of Representatives has this power.
Since allowing petitioner-members of the House of
Representatives access to the subject JPEPA documents would set
a precedent for future negotiations, leading to the contravention of
the public interests articulated above which the Constitution
sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer
claim the diplomatic secrets privilege over the subject JPEPA
documents now that negotiations have been concluded, since their
reasons for nondisclosure cited in the June 23, 2005 letter of
Sec.Ermita, and later in their Comment, necessarily apply only for
as long as the negotiations were still pending;
In their Comment, respondents contend that the
negotiations of the representatives of the Philippines as well as
of Japan must be allowed to explore alternatives in the course of
the negotiations in the same manner as judicial deliberations and
working
drafts
of
opinions
are
accorded
strict
confidentiality. That respondents liken the documents
involved in the JPEPA negotiations to judicial deliberations
and working drafts of opinions evinces, by itself, that they
were claiming confidentiality not only until, but even after,
the conclusion of the negotiations.

Judicial deliberations do not lose their confidential character

once a decision has been promulgated by the courts. The same
holds true with respect to working drafts of opinions, which are
comparable to intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under
consideration by the agency has developed into a definite
proposition, hence, the rule in this jurisdiction that agencies have
the duty to disclose only definite propositions, and not the interagency and intra-agency communications during the stage when
common assertions are still being formulated.[67]
3. The dissent claims that petitioner-members of the House
of Representatives have sufficiently shown their need for the same
documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the
JPEPA did not pursue its earlier intention to subpoena the
documents. This strongly undermines the assertion that access to
the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were
indeed critical, the House Committee should have, at the very least,
issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body,
rather than leaving it to the discretion of individual Congressmen
whether to pursue an action or not. Such acts would have served as
strong indicia that Congress itself finds the subject information to
be critical to its legislative functions.
Further, given that respondents have claimed executive
privilege, petitioner-members of the House of Representatives
should have, at least, shown how its lack of access to the Philippine
and Japanese offers would hinder the intelligent crafting of
legislation. Mere assertion that the JPEPA covers a subject
matter over which Congress has the power to legislate
would not suffice. As Senate Select Committee v. Nixon[68] held,
the showing required to overcome the presumption favoring
confidentiality turns, not only on the nature and appropriateness of
the function in the performance of which the material was
sought, but also the degree to which the material was necessary to
its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA
including its annexes and attachments was published, petitionermembers of the House of Representatives have been free to use it
for any legislative purpose they may see fit. Since such publication,
petitioners need, if any, specifically for the Philippine and
Japanese offers leading to the final version of the JPEPA, has
become even less apparent.
In asserting that the balance in this instance tilts in favor of
disclosing the JPEPA documents, the dissent contends that the
Executive has failed to show how disclosing them after the
conclusion of negotiations would impair the performance of its
functions. The
contention,
with
due
respect,
misplaces
the onus probandi. While, in keeping with the general presumption
of transparency, the burden is initially on the Executive to provide
precise and certain reasons for upholding its claim of privilege, once
the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party
seeking information to overcome the privilege by a strong showing
of need.
When it was thus established that the JPEPA documents are
covered by the privilege for diplomatic negotiations pursuant
toPMPF v. Manglapus, the presumption arose that their disclosure
would impair the performance of executive functions. It was then

incumbent on petitioner- requesting parties to show that they have

a strong need for the information sufficient to overcome the
privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to
explicitly state that he is claiming the privilege by order of the
President, the same may not be strictly applied to the privilege
claim subject of this case.
When the Court in Senate v. Ermita limited the power of
invoking the privilege to the President alone, it was laying down a
new rule for which there is no counterpart even in the United
States from which the concept of executive privilege was
adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice,[69] citing In re Sealed Case,[70] the issue of
whether a President must personally invoke the [presidential
communications] privilege remains an open question. U.S. v.
Reynolds,[71] on the other hand, held that [t]here must be a formal
claim of privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by that
officer.
The rule was thus laid down by this Court, not in adherence
to any established precedent, but with the aim of preventing the
abuse of the privilege in light of its highly exceptional nature. The
Courts recognition that the Executive Secretary also bears the
power to invoke the privilege, provided he does so by order of the
President, is meant to avoid laying down too rigid a rule, the Court
being aware that it was laying down a new restriction on executive
privilege. It is with the same spirit that the Court should not be
overly strict with applying the same rule in this peculiar instance,
where the claim of executive privilege occurred before the judgment
in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in
the present case, the dissent implies that the Court therein erred in
citing US v. Curtiss Wright[72] and the book entitled The New
American Government and Its Work[73] since these authorities, so
the dissent claims, may not be used to calibrate the importance of
the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a
conflict between the executive and legislative branches of
government, the factual setting thereof was different from that
of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the
citizens right to information.
That the Court could freely cite Curtiss-Wright a case
that
upholds
the
secrecy
of
diplomatic
negotiations
againstcongressional demands for information in the course of
laying down a ruling on the public right to information only serves
to underscore the principle mentioned earlier that the privileged
character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is
now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for
information from private citizens and not an executive-legislative
conflict, but so did Chavez v. PEA[74] which held that the
[publics] right to information . . . does not extend to matters
recognized as privileged information under the separation of
powers. What counts as privileged information in an executivelegislative conflict is thus also recognized as such in cases involving
the publics right to information.

Chavez v. PCGG[75] also involved the publics right to

information, yet the Court recognized as a valid limitation to that
right the same privileged information based on separation of
powers closed-door Cabinet meetings, executive sessions of either
house of Congress, and the internal deliberations of the Supreme
Court.
These cases show that the Court has always regarded claims
of privilege, whether in the context of an executive-legislative
conflict or a citizens demand for information, as closely
intertwined, such that the principles applicable to one are also
applicable to the other.
The reason is obvious. If the validity of claims of privilege
were to be assessed by entirely different criteria in each context,
this may give rise to the absurd result where Congress would be
denied access to a particular information because of a claim of
executive privilege, but the general public would have access to
the same information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the
Court adopts the clear and present danger test for the assessment
of claims of privilege against citizens demands for information. If
executive information, when demanded by a citizen, is privileged
only when there is a clear and present danger of a substantive evil
that the State has a right to prevent, it would be very difficult for
the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the
Executive merely has to show that the information is covered by a
recognized privilege in order to shift the burden on Congress to
present a strong showing of need. This would lead to a
situation where it would be more difficult for Congress to
access executive information than it would be for private
citizens.
We maintain then that when the Executive has already
shown that an information is covered by executive privilege, the
party demanding the information must present a strong showing
of need, whether that party is Congress or a private citizen.
The rule that the same showing of need test applies in both
these contexts, however, should not be construed as a denial of the
importance of analyzing the context in which an executive privilege
controversy may happen to be placed. Rather, it affirms it, for it
means that the specific need being shown by the party seeking
information in every particular instance is highly significant in
determining whether to uphold a claim of privilege. This need
is, precisely, part of the context in light of which every
claim of privilege should be assessed.
Since, as demonstrated above, there are common principles
that should be applied to executive privilege controversies across
different contexts, the Court in PMPF v. Manglapus did not err
when it cited the Curtiss-Wright case.
The
claim
that
the
book
cited
in PMPF
v. Manglapus entitled The New American Government and Its
Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in
that book in support of the confidentiality of treaty
negotiations would be different had it been written after the
FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the
same book be used to calibrate the importance of the right of access
to information in the Philippine setting considering its elevation as

a constitutional right, we submit that the elevation of such right as

a constitutional right did not set it free from the legitimate
restrictions of executive privilege which is itself constitutionallybased.[76] Hence, the comments in that book which were cited
in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used
need as a test to uphold or allow inroads into rights guaranteed
under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the
term need.
In executive privilege controversies, the requirement that
parties present a sufficient showing of need only means, in
substance, that they should show a public interest in favor of
disclosure sufficient in degree to overcome the claim of
privilege.[77] Verily, the Court in such cases engages in a balancing
of interests. Such a balancing of interests is certainly not new in
constitutional adjudication involving fundamental rights. Secretary
of Justice v. Lantion,[78] which was cited in the dissent, applied just
such a test.
Given that the dissent has clarified that it does not seek to
apply the clear and present danger test to the present
controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to
apply. It would appear that the only disagreement is on the results
of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that
information is of public concern for it to be covered by the right,
regardless of the publics need for the information, and that the
same would hold true even if they simply want to know it because
it interests them. As has been stated earlier, however, there is no
dispute that the information subject of this case is a matter of
public concern. The Court has earlier concluded that it is a matter
of public concern, not on the basis of any specific need shown by
petitioners, but from the very nature of the JPEPA as an
international trade agreement.
However, when the Executive has as in this case invoked
the privilege, and it has been established that the subject
information is indeed covered by the privilege being claimed, can a
party overcome the same by merely asserting that the information
being demanded is a matter of public concern, without any further
showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in
such controversies would be whether an information is a matter of
public concern.
Moreover, in view of the earlier discussions, we must bear in
mind that, by disclosing the documents of the JPEPA negotiations,
the Philippine government runs the grave risk of betraying the
trust reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government
then explain itself when that happens? Surely, it cannot bear to
say that it just had to release the information because certain
persons simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an
information is covered by the right to information, a specific
showing of need for such information is not a relevant
consideration, but only whether the same is a matter of public
concern. When, however, the government has claimed executive

privilege, and it has established that the information is indeed

covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that the information is
vital, not simply for the satisfaction of its curiosity, but for its
ability to effectively and reasonably participate in social, political,
and economic decision-making.[79]
7. The dissent maintains that [t]he treaty has thus entered
the ultimate stage where the people can exercise their right to
participate in the discussion whether the Senate should concur in
its ratification or not. (Emphasis supplied) It adds that this right
will be diluted unless the people can have access to the subject
JPEPA documents. What, to the dissent, is a dilution of the right
to participate in decision-making is, to Us, simply a recognition of
the qualified nature of the publics right to information. It is
beyond dispute that the right to information is not absolute and
that the doctrine of executive privilege is a recognized limitation on
that right.
Moreover, contrary to the submission that the right to
participate in decision-making would be diluted, We reiterate that
our people have been exercising their right to participate in the
discussion on the issue of the JPEPA, and they have been able to
articulate their different opinions without need of access to the
JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of
executive privilege.
8. Against our ruling that the principles applied in U.S. v.
Nixon, the Senate Select Committee case, and In re Sealed Case, are
similarly applicable to the present controversy, the dissent cites the
caveat in the Nixon case that the U.S. Court was there addressing
only the Presidents assertion of privilege in the context of a
criminal trial, not a civil litigation nor a congressional demand for
information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other
contexts. It does not, however, absolutely mean that the principles
applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their
rulings on claims of executive privilege in contexts other than a
criminal trial, as in the case of Nixon v. Administrator of General
Services[80] which involved former President Nixons invocation of
executive privilege to challenge the constitutionality of the
Presidential Recordings and Materials Preservation Act[81] and
the above-mentioned In re Sealed Case which involved a claim of
privilege against a subpoena duces tecum issued in a grand jury
investigation.
Indeed, in applying to the present case the principles found
in U.S. v. Nixon and in the other cases already mentioned, We are
merely affirming what the Chief Justice stated in his Dissenting
Opinion in Neri v. Senate Committee on Accountability[82] a case
involving an executive-legislative conflict over executive
privilege. That dissenting opinion stated that, while Nixon was not
concerned with the balance between the Presidents generalized
interest in confidentiality and congressional demands for
information, [n]onetheless the [U.S.] Court laid down
principles and procedures that can serve as torch lights to
illumine us on the scope and use of Presidential
communication privilege in the case at bar.[83] While the
Court was divided in Neri, this opinion of the Chief Justice was not
among the points of disagreement, and We similarly hold now that
the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.

Verily, while the Court should guard against the abuse

of executive privilege, it should also give full recognition to
the validity of the privilege whenever it is claimed within
the proper bounds of executive power, as in this
case. Otherwise, the Court would undermine its own credibility,
for it would be perceived as no longer aiming to strike a balance,
but seeking merely to water down executive privilege to the point of
irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a
copy of the full text of the JPEPA has become moot and academic,
it having been made accessible to the public since September 11,
2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the
same must be denied, respondents claim of executive privilege
being valid.

[4]
[5]
[6]

[7]

[8]
[9]
[10]

[11]

[12]

Diplomatic negotiations have, since the Court promulgated

its Resolution in PMPF v. Manglapus on September 13, 1988, been
recognized as privileged in this jurisdiction and the reasons
proffered by petitioners against the application of the ruling therein
to the present case have not persuaded the Court. Moreover,
petitioners both private citizens and members of the House of
Representatives have failed to present a sufficient showing of
need to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in
respondents Comment to the present petition, and not during the
hearings of the House Special Committee on Globalization, is of no
moment, since it cannot be interpreted as a waiver of the privilege
on the part of the Executive branch.
For reasons already explained, this Decision shall not be
interpreted as departing from the ruling in Senate v. Ermita that
executive privilege should be invoked by the President or through
the Executive Secretary by order of the President.
WHEREFORE, the petition is DISMISSED.

[13]
[14]

SO ORDERED.
In the case title as indicated in the petition, only the name of Usec.
Thomas G. Aquino appears in the portion for Respondents, to wit: HON.
THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of
the Philippine Coordinating Committee for the Japan-Philippines Economic
Partnership Agreement, et al. (Underscoring supplied) The other
respondents are enumerated in the body of the petition. (Rollo, pp. 2023) The Court motu proprio included the names of these other respondents
in the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil
Procedure, as well as the capacities in which they are being
sued. Moreover, it inserted therein that respondent Usec. Aquino, as stated
in the petition, is also being sued in his capacity as DTI Undersecretary.
[1]
Effective May 28, 2003.
[2]
Annex F of Petition, rollo, p. 95.
[3]
The
Petition
quoted
the
following
statement
of
Congressman Teves appearing in the transcript of the Committee
hearing held on October 12, 2005:
THE CHAIRPERSON. Now I call on Usec. Aquino to
furnish us a copy of the draft JPEPA and enunciate to this body
the positive as well as the negative impact of said agreement. Is
this the draft that the government will sign in December or this
will still be subjected to revisions in the run-up to its signing?
*

[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]

[24]

[25]

[26]
[27]

x x x We requested also to subpoena this but then the

Speaker requested me to hold in abeyance because he
wanted to get a (sic) consent of the President before we
can x x x the department can furnish us a copy of this
agreement. (Rollo, p. 32)
Id. at 16.
Annex A, Comment, rollo, p. 207.
Respondents
Manifestation
dated September
12,
2007; vide Business Philippines: A Department of Trade and
Industry
Website at www.business.gov.ph,
particularlywww.business.gov.ph/DTI_News.php?contentID=136 (visite
d August 9, 2007).
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987;
150 SCRA 530, 535.
G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631.
Supra note 7 at 536.
Reply to the Comment of the Solicitor General, rollo, p. 319
(underscoring supplied).
Business Philippines: A Department of Trade and Industry
Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed
on June 12, 2007.
By Resolution dated August 28, 2007, this Court directed the parties to
manifest whether the Philippine and Japanese offers have been made
accessible to the public just like the full text of the JPEPA and, if not,
whether petitioners still intend to pursue their prayer to be provided
with copies thereof. In compliance, petitioners manifested that the
offers have not yet been made public and reiterated their prayer that
respondents be compelled to provide them with copies thereof,
including all pertinent attachments and annexes thereto
(Manifestation and Motion dated September 17, 2007). Respondents,
on the other hand, asserted that the offers have effectively been made
accessible to the public since September 11, 2006 (Manifestation
dated September 12, 2007). Respondents claim does not persuade,
however. By their own manifestation, the documents posted on the
DTI website on that date were only the following: (1) Joint Statement
on the Occasion of the Signing of the Agreement between Japan and
the Republic of the Philippines, (2) the full text of the JPEPA itself and
its annexes, (3) the JPEPA implementing Agreement, and (4) resource
materials on the JPEPA including presentations of the [DTI] during
the hearings of the Senates Committee on Trade and Commerce and
Committee on Economic Affairs. While these documents no doubt
provide very substantial information on the JPEPA, the publication
thereof still falls short of addressing the prayer of petitioners to be
provided with copies of the Philippine and Japanese offers. Thus, the
petition, insofar as it prays for access to these offers, has not become
moot.
CONSTITUTION, Art. III, Sec. 7.
Id. at Art. II, Sec. 28.
Id. at Art. XIII, Sec. 16.
Supra note 7 at 541.
314 Phil. 150 (1995).
360 Phil. 133 (1998).
433 Phil. 506 (2002).
G.R. No. 169777, April 20, 2006, 488 SCRA 1.
Id. at 51.
Rollo, pp. 191-192.
360 Phil. 133, 764 (1998), citing V RECORD OF THE
CONSTITUTIONAL COMMISSION 25 (1986).
G.R. No. 84642, Resolution of the Court En Banc dated September 13,
1988.
Specifically, petitioners therein asked that the Court order respondents
to (1) open to petitioners their negotiations/sessions with the U.S.
counterparts on the agreement; (2) reveal and/or give petitioners access
to the items which they have already agreed upon; and (3) reveal
and/or make accessible the respective positions on items they have not
agreed upon, particularly the compensation package for the continued
use by the U.S. of their military bases and facilities in the Philippines.

299 U.S. 304 (1936).

Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a
taxpayer for the production of a letter from the Inland Revenue of the

[28]

[29]
[30]
[31]
[32]

[33]

[34]

[35]

[36]
[37]
[38]
[39]
[40]

[41]
[42]

[43]
[44]
[45]
[46]

[47]

United Kingdom to the associate commissioner of the Internal Revenue

Service (IRS), defendant asserted a claim of privilege, relying on the
affidavit of Lawrence B. Gibbs, Commissioner of IRS, which stated that
the production of the letter would impair the United States
government's ability to deal with the tax authorities of foreign
governments * * * by breaching the historic confidentiality of
negotiations between the United States and foreign sovereigns * * *.
(Emphasis supplied) The U.S. court therein ruled thus: Given the
context in which the letter in question was written, it is reasonable to
conclude that frank and honest expression of views on the treaty
language in issue were expressed, views that ostensibly were
expressed in the belief that historic confidentiality would govern such
expressions. (Underscoring supplied)
B. DuVal, Jr., Project Director, American Bar Foundation. B.A.,
1958, University of Virginia;
J.D.,
1961, Yale University, THE
OCCASIONS OF SECRECY (47 U. Pitt. L. Rev. 579).
Supra note 20 at 46.
Ibid.
Supra note 19 at 189.
Senate Select Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183.
Vide Arnault v. Nazareno, 87 PHIL. 29, 46 (1950): In the present case
the jurisdiction of the Senate, thru the Special Committee created by it,
to investigate the Buenavista andTambobong estates deal is not
challenged by the petitioner; and we entertain no doubt as to the
Senates authority to do so and as to the validity of Resolution No. 8
hereinabove quoted. The transaction involved a questionable and
allegedly unnecessary and irregular expenditure of no less
than P5,000,000 of public funds, of which Congress is the constitutional
guardian. x x x
421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior
and Bureau of Indian Affairs v. Klamath Water Users Protective
Association, 532 U.S. 1, 121 S.Ct. 1060.
Id. at 151, 95 S.Ct. 1504 (emphasis supplied).
Supra note 24.
545 F.Supp. 615, May 28, 1982.
237 F.Supp.2d 17.
5 U.S.C. 552(b)(5).
CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d
17. Vide Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct.
1060: Exemption 5 protects from disclosure inter-agency or intraagency memorandums or letters which would not be available by law to
a party other than an agency in litigation with the agency. 5 U.S.C.
552(b)(5). To qualify, a document must thus satisfy two conditions: its
source must be a Government agency, and it must fall within the ambit
of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.
Supra note 20 at 46 (emphasis supplied).
Petitioners expound as follows:
It has been 18 years since the PMPF v. Manglapus case,
and the world has changed considerably in that span of time. The
Berlin Wall fell in 1989, bringing down with it the Cold War and
its attendant hostilities, and ushering in a new era of globalization
and international economic cooperation as we know
it. The Philippines now finds itself part of an international
economic community as a member of both the ASEAN Free Trade
Area
(AFTA)
and
the
World
Trade
Organization
(WTO). Domestically, this Honorable Court has repeatedly upheld
the peoples right to information on matters of public concern,
allowing ordinary Filipino citizens to inquire into various
government actions such as GSIS loans to public officials,
settlement of Marcos ill-gotten wealth, and sale of reclaimed land
to foreign corporations. (Rollo, p. 326)
Rollo, pp. 50-51.
Supra note 18.
Supra note 19.
433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24
and Chavez v. PCGG, supra note 18.
In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states
thus: Nixon, GSA, Sirica, and the other Nixon cases all employed a

[48]
[49]
[50]
[51]
[52]
[53]
[54]

[55]

balancing methodology in analyzing whether, and in what

circumstances, the presidential communications privilege can be
overcome. Under this methodology, these opinions balanced the
public interests served by protecting the President's
confidentiality in a particular context with those furthered by
requiring disclosure. (Emphasis supplied)
418 U.S. 683 (1974).
Supra note 31.
Supra note 47.
Supra note 32
Supra note 47.
Rollo, p. 349.
For a small sampling, vide Primer sa Japan-Philippine Economic
Partnership Agreement
(JPEPA)
at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf;
A
RESOLUTION EXPRESSING SUPPORT TO THE CALLS FOR THE
SENATE TO REJECT THE JAPAN-PHILIPPINES PARTNERSHIP
AGREEMENT
(JPEPA)
at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA
Ratification:
Threat
Economics
at
http://www.aer.ph/index.php?option/=com_content&task=view&id=632
&Itemid=63 (all sites visited on February 2, 2008).
Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE
TARIFF AND CUSTOMS LAWS OF THE PHILIPPINES,
promulgated June 11, 1978. In light of the arguments of petitioners,
the most salient portion of the provisions cited by them is Section
402(1) which states, in part: For the purpose of expanding foreign
markets x x x in establishing and maintaining better relations between
the Philippines and other countries, the President is authorized from
time to time:
(1.1)
To enter into trade agreements with foreign
governments or instrumentalities thereof; x x x

396 Phil. 623, 663 (2000).

G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
[58]
Supra note 55.
[59]
G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.
[60]
Id. at 68.
[61]
According to the records of this Court, the judgment in Senate
v. Ermita was entered on July 21, 2006. Respondents filed their
Comment on May 15, 2006.
[62]
Revised Dissenting Opinion, p. 15 (Emphasis and underscoring
supplied).
[63]
450 PHIL. 744 (2003), penned by then Associate Justice Puno.
[64] Id., at 833 (Italics in the original, emphasis and underscoring supplied)
[65]
The Federalist, No. 75 (Italics in the original, emphasis and
underscoring supplied).
[66]
Article II Section 2 of the U.S. Constitution states: He [the President]
shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur
x x x. (Emphasis and underscoring supplied) On the other hand,
Article VII Section 21 of the Philippine Constitution states: No treaty
or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
[56]
[57]

[67]

[68]
[69]
[70]
[71]
[72]
[73]
[74]
[75]
[76]

Supra note 18.

162 U.S. App.D.C. 183, 189.
365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).
Supra note 47.
345 U.S. 1, 73 S.Ct. 528 (1953)
Supra at note 63.
Supra at note 64.
Supra note 19.
Supra at note 18.
U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution
x x x is there any explicit reference to a privilege of confidentiality, yet

[77]

[78]

to the extent this interest relates to theeffective discharge of a

Presidents powers, it is constitutionally based. (Emphasis, italics
and underscoring supplied)
In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and
the other Nixon cases all employed a balancing methodology in
analyzing whether, and in what circumstances, the presidential
communications
privilege
can
be
overcome. Under
this
methodology, these opinions balanced the public interests
served by protecting the Presidents confidentiality in a
particular context with those furthered by requiring
disclosure. (Emphasis and underscoring supplied)
G.R. No. 139465, October 17, 2000, penned by then Associate
Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the
due process clause the right to notice and hearing in the
extradition
proceedings
against
him. Consider
the
following enlightening disquisition of the Court:
In the case at bar, on one end of the balancing
pole is the private respondents claim to due
process predicated on Section 1, Article III of the
Constitution, which provides that No person shall be
deprived of life, liberty, or property without due process
of law Without a bubble of a doubt, procedural due
process of law lies at the foundation of a civilized society
which accords paramount importance to justice and
fairness. It has to be accorded the weight it deserves.
This brings us to the other end of the
balancing pole. Petitioner avers that the Court should
give more weight to our national commitment under the
RP-US Extradition Treaty to expedite the extradition to
the United States of persons charged with violation of
some of its laws. Petitioner also emphasizes the need to
defer to the judgment of the Executive on matters
relating to foreign affairs in order not to weaken if not
violate the principle of separation of powers.
Considering that in the case at bar, the
extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private
respondent is nebulous and the degree of prejudice he
will allegedly suffer is weak, we accord greater weight to
the interests espoused by the government thru the
petitioner Secretary of Justice. x x x (Emphasis, italics,
and underscoring supplied)

Constitution, Art. XIII, Sec. 16.

433 U.S. 425.
[81]
88 Stat. 1695.
[82]
G.R. No. 180643, March 25, 2008.
[83] Emphasis supplied.
[79]
[80]